Legal Action Needed to Protect Workers from Extreme Heat
November 16, 2023
Overview
Occupational health is one important pathway for public health practitioners and cross-sector partners to address the adverse and inequitable human health impacts of extreme heat and climate change. Opportunities in the law and policy arena exist for those seeking to take action to protect workers from extreme heat.
In recent years, parts of the United States that previously had only rarely experienced extended periods of extreme heat have experienced “heat domes” or periods when a region of high pressure in the atmosphere traps heat in an area for days or weeks. At the same time, other parts of the country, such as Arizona, long familiar with extreme heat, have seen both the number of extreme heat days, and the temperature of those days, reach record highs.
Among the populations most at risk in extreme heat are workers – outdoor workers such as farmers, farmworkers, and construction workers, as well as those who work indoors, but without adequate means of cooling, such as in warehouses and factories. Interventions to protect workers from extreme heat may be relatively modest, such as allowing workers to acclimatize to the heat gradually; requiring access to water, rest breaks, or shade; providing appropriate clothing; training for supervisors; monitoring conditions and employees; and adopting an emergency prevention and response plan.
Workers, Extreme Heat, and Health Equity
People of color, particularly Native Americans and American Indians, Latinos, and African Americans have experienced higher rates of heat-related deaths, in part because they are over-represented in outdoor occupations such as farming and construction. Extreme heat may also result in lost hours of labor for affected sectors and workers, which both contributes to and results from social vulnerability.
In addition to the direct impacts of work-related exposure and exertion, communities of color may face increased heat-related risk during non-work hours due to ongoing effects of red-lining and segregation, including the urban heat island effect and lack of tree canopy and shade, as well as decreased access to air conditioning. Farmworker housing, for example, may not provide air conditioning, and thus may not allow farmworkers’ bodies to cool down and recover from daytime exposures.
State and Local Approaches
A handful of states have responded to the rise in extreme heat with laws to protect workers. California and Washington protect outdoor workers and Colorado protects agricultural workers, while Minnesota’s law focuses on protecting indoor workers, and Oregon’s regulations include protections for both. Yet other states have defeated similar proposed laws, sometimes repeatedly. In Texas, cities, including Austin and Dallas, have enacted local ordinances to protect workers from extreme heat, but the state has enacted a law to preempt these and other local ordinances. A challenge to Texas’ so-called “Death Star” statute has begun to make its way through the state court system, with an initial ruling that the law is unconstitutional. We Count!, a grassroots workers and immigrant rights group in Miami-Dade County, Florida, has advocated for worker protections from extreme heat, but last week county commissioners deferred consideration of proposed heat standards until next March.
Federal Rulemaking
The National Integrated Heat Health Information System, a collaboration of multiple federal agencies led by NOAA and the CDC, supports data collection and information sharing related to extreme heat. The variability in state and local protections for workers who may experience extreme heat are one indication of the need for federal regulations to provide a basic, consistent level of protection to workers throughout the country. There is currently no federal protection of this kind, other than the “general duty” clause, a provision found in the Occupational Safety and Health Act of 1970 which requires employers to provide working conditions “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” OSHA implemented an emphasis program focused on educating employers and workers about the dangers of extreme heat.
In October 2021, OSHA published an advance notice of proposed rulemaking to protect workers from extreme heat. An advance notice of proposed rulemaking is an optional step that a federal agency may take, prior to publishing a proposed rule, in order to seek comment from stakeholders and the public. In August, 2023, OSHA re-opened the comment period on the advance notice of proposed rulemaking, and is accepting comments through December 23. However, the normal federal rulemaking process may take years before a final regulation is published and implemented.
Occupational health is one important pathway for public health practitioners and cross-sector partners to address the adverse and inequitable human health impacts of extreme heat and climate change. For those seeking to take action to protect workers from extreme heat, opportunities in the law and policy arena include (1) commenting on the federal advance notice of proposed rulemaking and continuing to monitor the rulemaking process, (2) advocating for protections at the state and local levels and monitoring any potentially preemptive laws, and (3) evaluating emerging state and local laws as they are implemented to identify the most effective approaches, in order to promote the spread of best practices at the state and local level as well as inform the federal rulemaking process. A recent analysis of injury claims from the workers compensation system in California from 2001 to 2018 is one example which provides evidence and hope that laws to protect workers from extreme heat can prevent injuries and save lives.
This post was written by Jill Krueger, Director, Climate and Health, Network for Public Health Law. The Network for Public Health Law provides information and technical assistance on issues related to public health.
The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state. Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.