Seeking to secure weakened federal heat standards for workers, industry representatives this month asked the Trump administration to model federal heat rules after an untested Nevada standard.
Nevada’s regulation protecting workers from heat illness was finalized late last year and took effect in April. It’s unclear, however, whether the new requirements will reduce workplace heat injuries because they are so new and because the guidelines are much more vague than proposed federal rules.
Despite the ambiguity, the state’s newly minted rule has been mentioned every day of a weeks-long public hearing held by the Occupational Safety and Health Administration that began June 16. At the hearing, industry representatives said the federal government should make serious changes to its heat rule to bring it more in line with Nevada’s, which forces employers to have plans for protecting employees from heat but has relatively few specific requirements for how to do that compared to the standard one proposed by the Biden administration.
Pushing OSHA to edit, rather than delete, the rule marks a strategic shift for industry — as many business interests previously have advocated against the need for any heat-specific regulation at the federal level.
The difference appears to be President Donald Trump.
“We have been analyzing the pros and cons of pushing OSHA under a Trump administration to take up the rulemaking and produce a heat standard we could all live with vs. letting the current, flawed proposed rule sit idle for the next four years,” labor law firm Conn Maciel Carey wrote in an April blog post to members of its Employers Heat Illness Prevention Rulemaking Coalition.
Conn Maciel Carey often represents employers in OSHA enforcement cases, and it has put together an alliance of clients from a variety of industries — including energy, building and retail — to oppose the heat rule.
The firm’s blog post lays out the “pros” and “cons” of such a strategy, noting one reason to move ahead is that while few expect the Trump administration to advance the current version of the heat rule, “we are just setting ourselves up for the eventual promulgation of the deeply flawed rule that is already near the finish line.”
“If OSHA, with a pro-business philosophy, acts now to promulgate a more performance-based, flexible rule, a future Democratic Administration would have a tough choice to make,” the post says. “They would be required to essentially start over and go through a new full rulemaking process to amend the rule or leave it as-is and focus the agency’s limited resources on a hazard for which there is no rule already on the books.”
The post specifically mentions Nevada’s rule as a possible “good model.”
Heat has killed an estimated 815 workers nationwide between 1992 and 2017, and seriously injured some 70,000 more, according to federal data.
The proposed OSHA standard seeks to address those injuries by requiring employers to implement safety measures such as providing water and a cool place to rest once heat and humidity levels reach 80 degrees. When the heat index reaches 90 degrees, the federal standard would require 15-minute paid rest breaks for all employees after two hours.
Unlike the proposed federal standard, the Nevada regulation is what’s known as a “performance-based standard,” meaning it has few specifics for how employers should comply with it. It forces large employers to provide water and “means of cooling” to workers, but only requires that employees get a rest break once they’ve shown signs of heat-related illness.
The lack of specifics means employers’ compliance with the rule is effectively judged by if workers stay healthy, said Jordan Barab, former deputy assistant secretary of OSHA during the Obama administration.
“It gives the employer a lot of flexibility, but how do you judge whether or not the program is successful? How do you find out if it’s not enough to keep people safe?” Barab said. “The only way you figure that out with that kind of standard is if someone gets sick or dies.”
Too early to know if Nevada heat rule works
Multiple employers and trade groups told OSHA they should emulate the Nevada standard in any final rule.
“We encourage OSHA to adopt the approach taken by Nevada and not include any specific heat triggers. Rather, OSHA should allow employers to make decisions about when to implement mitigation measures,” said Khris Hamlin, representing the Retail Industry Leaders Association, which is a part of the Conn Maciel Carey coalition.
That was echoed by the American Petroleum Institute, which previously has argued in written comments that requirements to provide water and rest to workers once the heat index surpasses 80 degrees are too onerous, both in hot climates like Texas and colder ones like Alaska.
In December, the group sent a memo to Labor Secretary Lori Chavez-DeRemer asking that the agency “not proceed on the currently proposed heat rule,” because it could lead to “operational difficulties with no clear safety improvement.”
But on Wednesday, API’s Jeff Atteberry softened that stance, saying the group’s “preference” is a “flexible performance-based” standard, and asked the agency to eliminate the regulation’s heat triggers, among other requirements. He pointed to Nevada, saying “OSHA has examples of standards on heat that do not contain absolute thresholds.”
“Under this approach employers would assess working conditions where employees may be at risk of heat injury or illness and implement controls at their discretion to address those specific identified risks,” he said.
Marc Freedman, of the Chamber of Commerce, did argue to the OSHA hearing that the agency could be legally vulnerable if it moves forward with any type of heat rule. But he also suggested that if OSHA decides to do so, it should model the federal rule on Nevada’s.
“Nevada, clearly a hot weather state, has adopted a standard without a specific heat trigger,” he said.
How Nevada’s rule works in practice is thus far untested. It only took effect this spring and has yet to be in place for a full heat season.
“There is no evidence whatsoever yet as to how effective it is at protecting anyone,” said Anastasia Christman, an attorney with the National Employment Law Project. “It’s just so new.”
The Nevada regulation was something of a compromise between workers groups and industry.
Heat has long been a major cause for concern among workers in Nevada, accounting for nearly 50 percent of all injury claims to state regulators since 2020.
Worker groups began pushing for a regulation a few years ago. But in 2023, the Nevada state Legislature failed to advance even a watered-down version of a bill establishing heat protections in the state. The state Senate only passed the bill after it was stripped of language requiring hourly 10-minute breaks for workers during high heat — and it ultimately died after being heard by an assembly committee.
The current regulation, which was adopted by the Nevada Occupational Safety and Health Administration with the support of Las Vegas’ casinos and hotels, does not have the specific protections that workers groups initially sought. It does not require employers give workers breaks, for example, and it has no temperature triggers for when specific steps must be taken to protect workers.
“Sometimes in the process things do get watered down,” said Susie Martinez, executive secretary treasurer of the Nevada State AFL-CIO. “This is the part I hate, is sometimes you have to compromise.”
Her union is planning to monitor heat-related complaints this summer, “and we will definitely come to the table again if it’s not working.”
“We will fight and make it well known that no, it’s not working for us,” she said.
While Martinez said she understood that “we have the extreme temperatures” that might entice other organizations to want to follow Nevada’s lead on protecting workers from heat, she said, “it hasn’t been in effect long enough for us to have all the data.”
“We only just started to get those high 100-degree temperatures this month,” she said.
Speaking at the OSHA hearing, Ken Seal, a Nevada-based program manager at the International Union of Painters and Allied Trades, talked about what it was like to run a work crew in 100-degree heat.
He didn’t mention the new state standard but described how he has worked at job sites where different supervisors have different standards for when workers can take breaks or drink water in the heat. Workers, he said, shouldn’t have to place “blind trust” in employers that they would be protected from heat.
“We need a real enforceable standard that’s not just written down, but that lives out on every job site,” he said. “We need to empower every worker with the right to say, ‘It’s too hot, we have to follow the plan.’ Let’s stop guessing, let’s stop hoping, let’s stop leaving it up to luck.”
