First and foremost, climate change is real. Temperatures are more extreme and extreme weather events are more common. As a result, workers who work outside are at a greater risk of illness, injury, and even death from heat exposure than ever before. Still, the Occupational Safety and Health Administration (OSHA) has failed to adopt a national heat standard to protect workers from heat exposure. Now is the time for OSHA to act.
OSHA has guidance available to employers on precautions that should be taken to protect workers from excessive heat.1 However, it is only guidance, not law. Such guidance does not set specific requirements for what employers must do to keep outside workers safe from the heat. It only provides recommendations, which employers may obviously choose to ignore. OSHA should do more to protect outside workers. It should enact specific regulations that it can enforce to keep workers safe.
As OSHA has yet to adopt a national heat standard or pass specific heat-related regulations for the workplace, workers must rely on the “General Duty Clause” of the OSH Act to fight for protections against unsafe working conditions based on excessive heat. The “General Duty Clause” requires employers to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). Clearly, excessive heat should qualify as such a recognized hazard from which workers are entitled to protection.
Importantly, workers who complain about an unsafe work environment due to heat should also be entitled to protection from retaliation for making complaints about heat-related safety issues. For example, if an outside worker were to complain about not being able to take breaks or an employer’s failure to provide drinking water, that worker should be protected from retaliation for complaining about an unsafe work environment. But protection for making such complaints would be more secure if the employer was subject to specific regulations as opposed to only the “General Duty Clause.”
In addition to enacting a national heat standard and passing regulations that would set specific, enforceable requirements for what employers must do to protect outdoor workers from heat, taking action to help curb climate change is a second necessary component to the equation. Last month, the Union of Concerned Scientists published a report titled “Too Hot to Work” which analyzed and discussed how climate change is affecting outdoor workers, who are disproportionately Black and Latino workers.2
“Our analysis finds that by midcentury, given slow or no action to reduce global heat-trapping emissions, the increased intensity, frequency, and geographic extent of extreme heat would cause a three- to fourfold increase in the exposure of outdoor workers to days with a heat index—or ‘feels like’ temperature—above 100°F, the point at which the CDC recommends that work hours begin to be reduced.”
It is entirely unacceptable to do nothing in the face of such findings. Moreover, according to a joint investigation by Columbia Journalism Investigations, National Public Radio, and The Texas Newsroom, from 2010 to 2021, 53 workers died in Texas alone because of working in excessive heat.3 Clearly, OSHA guidance is not enough to keep outdoor workers safe – specific regulations are necessary.
If your employer is making you work in excessive heat without proper protections, you should consult with an employment attorney right away. Also, if your employer has retaliated against you for complaining about an unsafe work environment, you should not delay in seeking legal advice. The deadline to file a workplace safety retaliation complaint is very short, most often only 30 days from when the retaliation took place.
1) https://www.osha.gov/heat/heat-index
2) https://ucsusa.org/sites/default/files/2021-08/Too%20Hot%20to%20Work_8-13.pdf
3) https://www.houstonpublicmedia.org/articles/news/in-depth/2021/09/07/407895/texas-workers-are-dying-in-the-summer-heat-and-companies-arent-being-held-accountable/