President Joe Biden’s administration is advancing a first-of-its-kind proposal to safeguard indoor and outdoor workers from the perils of extreme heat as the United States swelters under record-breaking temperatures this summer.
But it will still likely take years to enact a federal rule that could be undone with the stroke of a pen should Donald Trump win the White House – or by a US supreme court that just dealt a major blow to the federal government’s regulatory authorities.
For the moment, workers are left at the mercy of employers, or the handful of states that have taken their own steps on the matter.
“Even in ... a wildly optimistic, best-case scenario, it’s still a couple years until this federal heat standard would take effect,” said Terri Gerstein, director of the labour initiative at New York University’s Wagner Graduate School of Public Service.
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In the meantime, a handful of states have moved forward with their own heat protection rules, while other states such as Texas and Florida have blocked localities from setting standards on essentials like access to water and rest breaks that the new federal rule would address.
Florida’s new law barring local governments from setting their own heat protections kicked in this month, as the heat index was forecast to top 43 degrees in some spots in the Sunshine State.
The heat index measures what the temperature feels like to the human body.
“We have a long road to travel,” said Juanita Constible, an expert in heat and labour at the non-profit Natural Resources Defense Council.
“The game is still very much in the states ... The federal standards are a floor, not a ceiling. States can go past those, so there's no need for worker-friendly states to just kind of wait and see what the federal government comes up with,” she said.
The draft proposal from the US labour department’s Occupational Safety and Health Administration (OSHA), unveiled this month, would implement control measures when the heat index hits 80 degrees Fahrenheit (26.7 degrees Celsius) that include requirements to provide employees with cool drinking water and paid rest breaks if needed.
The proposal provides additional measures at 90 degrees Fahrenheit (32.2 degrees Celsius) such as mandatory rest breaks of 15 minutes at least every two hours.
“Obviously we’ll see some changes before the final [rule] and then enforcement will be a pretty key part of the picture,” Constible said.
“It's clear that OSHA has been paying really close attention to what workers have been saying they need.”
In the wake of the deadly “heat dome” that saw crippling record temperatures in the Pacific northwest in 2021, Biden initially announced his intention to put forward a rule in September 2021.
Biden announced on July 21st that he would not seek re-election and endorsed vice-president Kamala Harris to be the Democratic presidential nominee.
“Because of climate change, heat has risen to the top of the agenda,” said Jordan Barab, a former senior OSHA official during the Obama administration.
“But OSHA is a very small agency. For them, it's actually been a very speedy process to get a proposed rule out in three years.
“But it'll be closer to two years from now before they can issue a final standard – and if there's a Trump administration, they will likely just kill it.”
For its part an OSHA spokesperson said there will still be an open comment period and public hearings as part of the rule-making process.
“Working swiftly and responsibly to enact a federal heat standard that protects the American workforce is a top priority,” the spokesperson said.
Former President Trump has previously questioned the role humans play in rising global temperatures, and the 2024 Republican Party platform calls for ending “market-distorting restrictions on oil, natural gas and coal”.
Asked about plans for the heat rule should Trump get elected, his campaign did not answer directly, with a spokesperson instead criticising the “failed Harris-Biden economic agenda” while touting Trump’s record of “delivering pro-growth economic policies that put money back in the pockets of working families”.
Business groups have previously signalled opposition or at least wariness about such a far-reaching set of rules.
In comments submitted to OSHA in December, the National Association of Home Builders (NAHB) raised concerns that the rule-making “will place further compliance burdens on businesses already facing significant regulatory costs that exacerbate the nation’s housing affordability crisis”.
The NAHB said the construction industry faces unique challenges because the nature of its jobs changes daily, if not hourly.
“Where employers may use certain methods for keeping workers safe in extreme heat in one industry, those practices may not best serve or even be feasible for construction, especially for the small businesses that make up the majority of the residential construction industry,” the group said in a statement.
Since OSHA started the rule-making process, NAHB has advocated for a standard that provides flexibility, considers different types of work across the country, “and incorporates the simple but effective refrain ‘water, rest and shade’ that our members already employ,” the statement said.
Another wild card is the supreme court, which last month dealt a major blow to the authority federal agencies enjoyed in crafting and developing their own rules.
In a six-three ruling on a case involving fishing companies that had challenged a government-run monitoring programme, justices overturned a decades-long precedent where courts generally deferred to experts at government agencies to interpret the laws they administer – known in Washington-speak as the “Chevron doctrine”.
Gerstein said she had enough faith in OSHA that the rule it crafts would hold up under “reasonable review” by a court – but suggested she didn't necessarily see the nation's highest court acting in that manner.
“If OSHA had proposed that employers need to give workers a thimble of water once every day when it’s 100 degrees, I still would question whether the supreme court would uphold that as a reasonable rule,” she said.
“And then the case overruling Chevron is the nail in the coffin.”
Regulators can monitor and crack down on heat-related issues under a “general duty” clause, which allows OSHA to enforce basic safety in workplaces, but in practice cases can be difficult to prove and enforcement is spotty.
Asked about the supreme court’s recent action, a senior administration official said they were confident in their statutory authority to address hazards in the workplace.
“We’ll certainly be mindful of our explanation of our authority when we get to the final rule-making process,” the official, who spoke on condition of anonymity, told reporters on a call previewing the announcement of the proposal.
Even if it never takes effect, the process still has value by raising awareness about the dangers of heat and helping employers and workers mitigate the threat, Gerstein said.
“There’s no question this should be the law. And if we weren’t in this particularly strange and troubling moment in our country, this is an eminently sensible rule that would be upheld.” – Thomson Reuters Foundation