And it’s only going to get worse. In a 2020 paper, researchers from the University of Washington calculated that the average number of “days worked in unsafe conditions” due to excessive heat is likely to double by mid-century and triple by the end. But Washington is one of only four states, along with California, Oregon and Minnesota, with specific rules to protect workers from dangerous heat. Legislators in Nevada, Maryland, and Colorado have enacted legislation requiring state agencies to develop heat standards for workers, but they are not yet enacted. And there are no federal standards for working in the heat.
According to the Federal Labor Act, employers are obliged to ensure “safe and healthy working conditions” in the workplace. The agency that exists within the Department of Labor to enforce this standard, the Occupational Safety and Health Administration, occasionally introduces rules aimed at protecting workers from specific threats that might otherwise fall through the cracks. For example, as early as 1983, OSHA introduced regulations requiring employers to train and educate their workers on how to avoid exposure to toxic chemicals in the workplace. Last June, OSHA released emergency rules to protect healthcare workers from Covid-19 — a move the Trump administration’s Department of Labor rejected despite intense pressure from labor representatives.
Last September, after the hottest U.S. summer on record, OSHA initiated a rulemaking process to develop a workplace warmth standard that could ultimately bring the rest of the United States on par with Washington and its West Coast counterparts when it comes to it walks, paid, shaded breaks, and access to cool drinking water when temperatures reach dangerous levels. In its announcement, OSHA emphasized that humidity should be considered when setting the threshold. But the federal process grinds at a slow pace. A 2012 study by the US Government Accountability Office found that the time between the introduction and realization of new safety and health standards averages seven years – and can take up to 19 years.
Given the current and growing risk of heat stress for workers, that’s too little, too late, many advocates say. In a report released in June, the advocacy group Public Citizen called on Biden OSHA to issue emergency rules to protect workers “while it continues the slow process of proposing and finalizing an enduring standard.”
But the conservative turn in federal courts in recent years, most notably the US Supreme Court, makes such a move vulnerable to legal challenge. “I think the current justice system would not allow OSHA to enact an emergency standard for heat,” said David Michaels, OSHA administrator under former President Barack Obama and current professor at George Washington University Mother Jones. “A thermal standard is clearly a high priority for OSHA, but the standard-setting process is on hold. So unless Congress steps in and passes legislation that will move OSHA forward more quickly, it will be several years before the agency issues a standard.”
In 2021, a group of U.S. Senators, including Bernie Sanders and Democrats Sherrod Brown, Elizabeth Warren and Corey Booker, co-tabled a bill that would require OSHA to produce a “definitive standard for preventing occupational exposure” within three and a half years against excessive heat” to enact its signature into law. They called the bill the Asuncion Valdivia Heat Illness and Fatality Prevention Act, named after a California farm worker who died of heat stroke in 2004 “after picking grapes for 10 hours in 105-degree temperatures.” Instead of calling an ambulance, the text of the law adds: “His employer told his son to drive Mr Valdivia home. On the way home he foamed at the mouth and died.”