OSHA targets heat threats heightened by climate change

By Ariel Wittenberg | 10/26/2021 12:34 PM EST

Advocates say the Occupational Safety and Health Administration is ill-equipped to protect workers from heat illnesses on the job.

The Occupational Safety and Health Administration is beginning a rulemaking process to develop a workplace heat standard for both outdoor and indoor job sites. Claudine Hellmuth/E&E News (illustration); Freepik (photos center and right, thermometer); Josh Olalde/Unsplash (left photo); Weather.gov (heat stroke chart)

The Biden administration is making good on its promise to protect workers from heat, taking the first step toward a rulemaking it says is necessary now, more than ever, thanks to climate change.

Heat killed 907 workers between 1992 and 2019, according to new federal statistics, the Occupational Safety and Health Administration writes in its advance notice of proposed rulemaking, which will be published in the Federal Register tomorrow. And more than 31,500 additional workers have been injured or fallen ill due to heat.

The notice, which starts the rulemaking process to require employers to protect both indoor and outdoor workers from heat, follows commitments made by OSHA last month to ramp up inspections of “high risk industries” for heat-related workplace hazards by next summer (Greenwire, Sept. 20).

It also marks the most progress any administration has made toward protecting workers from heat — a hazard OSHA has been reluctant to regulate despite decades of evidence that high temperatures kill, and recommendations from the Centers for Disease Control and Prevention and environmental and worker groups alike (Greenwire, Aug. 9).

OSHA’s notice does not propose any solutions; rather, it outlines the scope of the threat heat poses to workers and gives the public 60 days to submit comments on how the agency could craft a protective heat standard, asking dozens of questions about how best to track heat-related illnesses and injuries, how to prevent them, and which populations are most at risk.

Laborers are particularly vulnerable to heat due to the strenuous nature of their work. When air temperature is high, physical activity can rapidly raise body temperature, leading to exertional heat stroke, which can be fatal, as well as other serious conditions like dehydration, heat exhaustion and kidney failure. Heat can also exacerbate chronic respiratory and cardiac conditions, as well as diabetes, and can decrease workers’ cognitive functions, making accidents more likely at the job site.

Climate change, the notice says, will make that threat all the more severe as it “is increasing the frequency and intensity of extreme heat events, as well as increasing daily average daytime and nighttime temperatures.”

OSHA references the National Climate Assessment to conclude that “hot days are associated with increased heat-related illnesses, that health risks may be higher earlier in warmer seasons before people have had time to acclimatize, and that workers will face an increased risk of heat-related illness due to heat exposure.”

It also shows that OSHA is thinking about how to address the disproportionate impact heat has on workers of color, detailing how Black and Hispanic immigrant workers tend to work in jobs with the highest injury risks, with Hispanics representing one-third of heat-related workplace fatalities since 2010.

The document specifically asks the public for ideas of how to address inequities in heat exposure and health outcomes, and whether there are any industries and employers who are already “addressing occupational heat-related illness with an environmental justice approach.”

Workers’ rights and public health experts are hailing the agency’s action.

Juley Fulcher, a worker health and safety advocate at Public Citizen who has petitioned OSHA multiple times to write heat-specific worker protections, said her group “applauds” the Biden administration for taking action.

“The summer of 2021 made it clear to everyone just how dangerous laboring in high heat can be,” she said. “This long overdue heat standard is critical to saving the lives of our essential workers.”

David Michaels, who led OSHA during the Obama administration and has since signed petitions asking the agency to write heat standards, agreed. He said today’s notice shows the agency is taking high temperatures — and climate change — seriously as a threat to workers.

“The Biden administration is asserting that heat is a workplace environmental justice issue: Low-wage and immigrant workers are at disproportionately greater risk, and as a result, the worker health impacts of heat are significantly under-reported and will only worsen with the climate crisis,” said Michaels, who is now a professor at George Washington University’s Milken Institute School of Public Health. “As temperatures rise, an OSHA heat standard is clearly needed to protect valuable workers; the challenge OSHA faces is how to issue it as quickly as possible.”

 

‘Recognized hazards’ and enforcement limitations

The U.S. Chamber of Commerce declined to comment on the notice, but the powerful industry group’s vice president for workplace policy, Marc Freedman, has previously told E&E News that he feared the subjective nature of heat — that it becomes dangerous for different people at different temperatures — means an OSHA rule could make employers liable for factors outside of their control.

In fact, it is the subjective nature of heat that has made it so difficult for OSHA to protect workers from high temperatures without a standard, the agency wrote in its notice.

OSHA has for years relied on its “general duty clause,” which broadly requires employers to ensure workplaces are safe from “recognized hazards.”

But, the agency points out, the general duty clause is mainly an enforcement tool, and OSHA must prove that heat is a hazard in each citation it issues. In practice, that has meant the agency pursues enforcement cases only after workers die or fall seriously ill due to heat. Though OSHA has guidance directing employers to offer workers water, rest and opportunities to cool off at regular intervals, it cannot currently require them to do so.

“A standard would establish the existence of the hazard at the rulemaking stage, thus allowing OSHA to identify and require specific abatement measures without having to prove the existence of a hazard in each case,” the agency writes.

In fact, in 2019, the agency says, it conducted 289 heat-related inspections, more than half of which were brought on due to complaints and 20 of which were instigated by a workplace fatality or “catastrophe.”

But OSHA could issue only 31 general duty clause citations, instead relying on “hazard alert letters” simply providing employers with information about how to mitigate heat hazards for 155 cases.

OSHA’s enforcement capabilities under the general duty clause have been further hampered in recent years following the decision by its three-member Review Commission that limited the agency’s ability to rely on material from the National Weather Service and the CDC’s National Institute for Occupational Safety and Health to show that heat at various temperatures can be dangerous to workers (Greenwire, Jan. 22).

“Because there are no specific, authoritative exposure thresholds for OSHA to rely on, it has been challenging for the agency to prove the existence of a recognized hazard, even in cases in which a heat-related fatality has occurred,” the agency writes.