Just months before the 2024 US presidential election, the Biden administration appears to be speeding up its timeline to finalize a regulation that could protect 36 million workers from the harmful effects of exposure to extreme heat.
On Tuesday, the Occupational Safety and Health Administration, or OSHA, the draft text released of a proposed rule on the prevention of heat injury and illness among American workers. If finalized, the proposed rule would become the nation’s first federal regulation on heat stress in the workplace. The development is coming the start of a summer that has already seen record heatand days after OSHA announced tens of thousands of dollars in proposed penalties for a case involving a 41-year-old farm worker who died of heat stroke while working in Florida last year.
In a press briefing Monday, a senior Biden administration official described the draft rule’s requirements as “common sense.”
“The purpose of this rule is simple,” said the official, who spoke on condition of anonymity. “This is to significantly reduce the number of worker-related deaths, injuries and illnesses suffered by workers exposed to excessive heat and exposed to these risks while simply doing their jobs.”
The draft rule requires employers to implement heat injury and prevention plans that give workers access to drinking water, shade, rest areas and breaks once the heat index reaches 80 degrees Fahrenheit. Employers will also need to develop an acclimatization plan to help new employees get used to working in extreme heat, and train supervisors and employees in how to identify heat illness. (In particular, three out of four worker deaths stem from heat-related illnesses happens on the first week of work.) Once the heat index exceeds 90 degrees F, additional breaks and increased heat illness symptom monitoring will also be necessary. The proposed rule includes a requirement that employers evaluate these plans at least once a year for potential updates.
These regulations will apply to all employers who supervise outdoor and indoor work where OSHA has jurisdiction, which includes, but does not cover, most private sector employers and workers in all 50 states and Washington, DC some workers with state and local government agencies, self-employed workers or independent contractors. The draft rule also exempts workplaces where there is no reasonable expectation of exposure to the initial heat trigger, and indoor work conditions where temperatures are maintained below the 80 degree F threshold. Furthermore, it excludes, among other exceptions, situations where employees are exposed to temperatures above the standard threshold for short periods of time.
Advocates who have been fighting for national heat regulation for years are praising the move. Ligia Guallpa, executive director of the nonprofit Worker’s Justice Project, a worker center for low-wage immigrant workers in New York, said her group “applauds” the proposed rule.
“The Biden administration is moving to protect the lives of workers,” said Amy Liebman, chief program officer at the nonprofit Migrant Clinicians Network, which aims to reduce health disparities among immigrant communities. “This effort is especially critical as states like Texas and Florida not only fail to protect workers from the heat, but are pursuing legislation that will cause undue harm to workers.” Last year, Texas Governor Greg Abbott passed a law that blocked cities from introducing their own heat protection for workers. In Florida, Governor Ron DeSantis signed a similar law went into effect this past spring.
OSHA first announced that the agency would begin developing a federal heat stress rule in 2021, after a summer of record temperatures. Typically, the federal rulemaking process is quite lengthy, and experts and organizers who spoke to Grist last month worried that the Biden administration would leave the proposed heat regulation on hold for another year or more — at which point, depending on the outcome of the November presidential election, the rule could be overturned by a new administration or a Republican- controlled congress. But the surprise release of the proposed rule this week appears to indicate a readiness by the Biden administration to advance the regulation, possibly with the goal of finalizing it before the end of the year.
Representative Greg Casar, a Democrat from Texas, said he felt certain, following a visit by a top OSHA official to his home state in June, that finalizing a federal heat standard is the agency’s top regulatory priority. “I think it’s clear that President Biden and his administration are responding to the climate crisis, responding to what workers are asking, and they’re speeding it up because workers just can’t wait seven or eight years,” Casar said.
Experts expect the OSHA rule could face legal challenges. “There’s always technical contention,” said Michael Gerrard, the founder and faculty director of the Sabin Center for Climate Change Law, “and sometimes some courts will pick up on that contention.” Gerrard pointed to the recent Supreme Court decided to block the Environmental Protection Agency’s “Good Neighbor” rule, which regulated smog by targeting smoke stack emissions, as an example of a successful legal challenge based on the argument that federal officials neglected to address public comment on the draft plan. Possibly, going forward, “people who want to challenge rules will look at the comments on the draft rule and complain if any of the comments have not been thoroughly responded to.”
The draft heat rule is now subject to a public comment period and a subsequent final review by the White House. Given the highly politicized nature of heat regulation, it is likely that OSHA will receive a significant amount of comments on the proposed standard, which could potentially drag out the process of finalizing the regulation. An OSHA spokesman said the agency “cannot speculate” on when the rule might be finalized, but that it is moving “quickly and responsibly” to ensure workers have the necessary protections.
“All workers deserve safety and an advocate for their rights,” Guallpa said. “We are encouraged to see the federal government act to require basic protections against extreme weather.”
