Submitted via regulations.gov
Douglas L. Parker
Assistant Secretary of Labor for Occupational Safety and Health
U.S. Department of Labor
200 Constitution Ave. NW, Washington, DC 20210
Re: Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings (RIN 1218-AD39)
Dear Mr. Parker,
The Economic Policy Institute (EPI) is a nonprofit, nonpartisan think tank working for the last 30 years to counter rising inequality, low wages and weak benefits for working people, slower economic growth, unacceptable employment conditions, and a widening racial wage gap. We intentionally center low- and middle-income working families in economic policy discussions at the federal, state, and local levels as we fight for a world where every worker has access to a good job with fair pay, affordable health care, retirement security, and a union. EPI submits these comments on the Occupational Safety and Health Administration’s (OSHA) Notice of Proposed Rulemaking to issue a new standard to prevent heat injury and illness at workplaces in the United States.1
The proposed rule would establish a federal heat protection standard that covers nearly all employers regulated by OSHA and would apply to both indoor and outdoor work settings. For example, the rule provides workers with two levels of protection when temperatures exceed 80- and 90-degrees Fahrenheit, which can include requirements for paid rest breaks, cool water and time to acclimate to temperatures. Further, the rule would require employers with more than 10 workers to implement heat injury and illness prevention plans (HIPPs) to protect workers from heat related stress. These protections are needed as the United Sates experiences increased and prolonged high temperatures, which will only be exacerbated by climate change.2 In this comment, we demonstrate the importance of establishing a strong federal heat protection standard, analyze who would be impacted by this rule, and discuss how inaction on a federal heat standard costs workers, employers and the U.S. economy.
Why this rule is needed
Under current law, there is no federal heat standard. Therefore, there is no federal requirement for employers to provide workers with protections—such as rest breaks, cool water, or shade—when their workplaces experience high temperatures. This also means workers are then exposed to and can be required to work in high temperatures, which can result in heat related injuries, illnesses, and fatalities. Heat is the leading cause of death among all weather-related fatalities.3 Between 2011-2022, a total of 479 workers in the United States died from exposure to environmental heat. That is an average of 40 workers a year dying from heat exposure.4 Further, between 2010-2020, heat caused over 33,000 injuries and illness that resulted in days lost at work. These statistics are likely an undercount, as heat related workplace illnesses, injuries, and fatalities are often not reported.5
The year 2024 was the hottest year on record. Rising temperatures are predicted to continue in the United States and across the globe.6 A federal heat standard is needed to help reduce heat related, injuries, illnesses and fatalities. Due to federal inaction, some states have enacted standards to protect workers from extreme heat. There are currently only seven states that have state-level heat related standards: California, Colorado, Maryland, Minnesota, Nevada, Oregon, and Washington. As a result, there are 43 states that have no such standards. Further, Texas and Florida—two of the hottest states in the U.S. based on climate data from 2024—have preempted their own cities and localities from implementing heat standards.7 This is notable, as the Texas preemption law reversed local heat standard ordinances for construction workers in Austin and Dallas.8 In Florida, preemption killed heat standards that were just under consideration in Miami-Dade county.9 Without a federal heat standard, workers across the United States will continue to experience a piecemeal approach in heat standard protections.
Some opponents of a federal heat standard have argued that a national standard is not needed, or that the trigger temperature level proposed by OSHA is too high, because workers in warmer states are already more accustomed to working at high temperatures over 80 degrees Fahrenheit.10 On the contrary—a federal standard is all the more urgently needed because some of the states with the warmest weather and thus the hottest outdoor/indoor working conditions have not yet taken action or have preempted action (such as Texas and Florida). An Associated Press report earlier this year found that nearly two-thirds—61 percent—of all heat deaths in the U.S. over the past five years were in Arizona, Florida, Louisiana, Nevada, and Texas.11
In the absence of a specific federal safety standard, OSHA can enforce the “general duty clause”12 of the Occupational Safety and Health (OSH) Act to hold employers accountable for providing working conditions that have “recognized hazards.” OSHA has used this before to pursue monetary penalties for exposing workers to extreme heat—for instance, in 2021, when an employer in Florida required sugarcane farmworkers to work for too long exposed in direct sunlight at high temperatures.13 However, the general duty clause essentially only allows OSHA to act after an employer has already exposed their worker to a hazard—or, in the case of heat standards, when an existing heat prevention plan has already failed.14 A federal heat standard is needed to require preventive action by employers before people are injured, sickened, or killed by high temperatures on the job. It can also provide clarity for employers on best practices to address this now-well-understood hazard.
Who is impacted by this rule
OSHA estimates that about 36.0 million workers will be affected by the rule. 21.4 million of these employees work in indoor conditions, like those that are not environmentally controlled, such as warehouses without climate controls or workplaces with ovens and furnaces. An additional 14.6 million employees work in outdoor conditions subject to the rule.15
Although this rule will benefit workers of all incomes and demographics, the direct benefits are concentrated among workers with low incomes and Hispanic workers, because these employees currently have the highest numbers of heat-related injuries and fatalities.16 3.6 million workers in manufacturing, 4.3 million workers in construction, and 1.1 million works in agriculture will be less likely to be exposed to extreme heat.17
Why this rule should be finalized
Continued inaction on a federal heat standard poses significant harms and costs to workers, employers, and the U.S. economy. In addition to providing 36.0 million with protections against extreme heat, the proposed rule could help with worker productivity and spur innovation at the workplace.
The proposed rule would help with worker productivity by establishing protections—such as required rest breaks and access to cool water—which help prevent heat related illnesses and injuries. As mentioned previously, there were an estimated 33,890 work-related heat injuries and illnesses that resulted in days away from work between 2011-2020. That is an average of 3,389 injuries and illness each year, and likely an undercounting.18 By reducing the risk of heat related illnesses and injuries, the proposed rule would also reduce workers’ need to take additional days off to recover from heat related illnesses and injuries. Establishing a federal heat standard would help mitigate illnesses, injuries, and absences that can result from heat exposure, which in turn helps limit disruptions in worker productivity.
The proposed rule can also spur innovation in the workplace. By requiring businesses with more than 10 workers to have heat injury and illness prevention plans (HIPPs), the rule encourages employers to become innovative in ways they can protect workers against heat related stress. While not required in the rule, employers should solicit input from workers, which could also lead to new, safer, more innovative ways of conducting work, and lead to more effective HIPPs that are tailored to workplaces needs.
Finally, beyond the basic human harms to workers’ health and lives, not implementing a federal heat standard is financially costly for workers, employers, and the economy. In particular, the risk of heat hazards on the job falls more on some groups of workers than others. While extreme heat can impact all workers, it more adversely impacts outdoor occupations, which are disproportionally held by workers of color. One study on the impacts of extreme heat on outdoor workers found that Black workers are likely to lose $5.2 to $7.5 billion and Latino workers would lose between $11.2 to 16.1 billion in pay due to cut hours and injuries.19 It’s workers who already have the most to lose—who may already be earning lower pay or have fewer financial resources to fall back on in times of illness—who will continue to shoulder much of the risk.
There are also significant health care costs for workers that experience heat related illnesses and injuries. One study found that extreme heat costs the United States more than $1 billion in excess health care costs.20 Employers could experience increased costs in worker compensation premiums as more workers experience heat injuries and illness and are out of work. Moreover, employers would likely see a reduction in productivity due to worker absenteeism and turnover caused by heat injuries, illnesses, and fatalities. The loss in productivity also has impacts on the U.S. economy as a whole. Researchers have estimated that lack of federal heat protections costs the U.S. economy nearly $100 billion each year.21
Proposed improvements to the proposed rule
We join other commenters in encouraging the OSHA to strengthen these protections even further and remove some of the proposed exemptions from the regulation. For instance, emergency workers should have protections from physical dangers, including heat, at all times on the job. Further, workers who are doing sedentary activities both indoors and outdoors should also have basic heat protections at all times on the job. Without air conditioning, access to water, or other protections, even workers whose job requires them to be primarily seated will experience adverse health impacts at high temperatures.
We also recommend that OSHA explicitly clarify in the rule that employers are also responsible for ensuring responsible acclimatization for temporary workers or those workers supplied by staffing agencies. OSHA itself has noted that almost half of all heat-related deaths occur on a worker’s first day on the job, as workers who are not yet used to performing strenuous labor at high temperatures are most at risk.22
Further, we recommend that OSHA require and explicitly clarify, in safety plan language and in trainings, that workers have the right to take rest breaks even at the lower heat trigger thresholds. We are concerned that without a clear guideline, and with just the requirement to “allow and encourage” breaks at the basic heat trigger level, many workers will not take this choice, particularly if they feel they lack the leverage to speak up.
Conclusion
The year 2024 was the hottest year on record and extreme temperatures will become more commonplace as the United States and the rest of the world experience the impacts of global climate change. If finalized, the proposed rule would provide 36.0 million workers heat protection standards. This includes about 9.0 million workers in manufacturing, construction, and agricultural industries. In addition to preventing heat stress, the proposed rule can help increase productivity and spur innovation at workplaces. Further, inaction on a federal heat standard poses costs to workers, employers, and the economy. EPI strongly supports the proposed rule and encourages the Occupational Safety and Health Administration to swiftly promulgate a final rule.
Sincerely,
Margaret Poydock
Senior Policy Analyst
Samantha Sanders
Director of Government Affairs and Advocacy
Ben Zipperer
Senior Economist
1. Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, 89 Fed. Reg. 70698- 71073 (August 30, 2024).
2. National Oceanic and Atmospheric Administration, “U.S. Sweltered Through Its 4th-Hottest Summer on Record” (web page), September 10, 2024.
3. National Weather Service, “Weather Related Fatality and Injury Statistics” (web page), accessed on January 13, 2025.
4. Occupational Health and Safety Administration, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings Rulemaking” (web page), accessed on January 13, 2025.
5. AFL-CIO, Death on the Job: The Toll of Neglect, 2024, April 2024.
6. National Oceanic and Atmospheric Administration, “Earth had its hottest August in 175-year record” (web page), September 12, 2024.
7. National Centers for Environmental information, “Climate at a Glance: Statewide Rankings” (web page), published December 2024, retrieved on December 20, 2024.
8. Juley Fulcher, Scorched States: A Report Card on State Laws Protecting Workers from
Heat, Public Citizen, May 2024.
9. Alejandra Borunda, “Florida Blocks Heat Protections For Workers Right Before Summer,” NPR, April 12, 2024.
10. House Committee on Education and Workforce, “Letter to Acting Labor Secretary Julie Su”, December 19, 2024.
11. Seth Borenstein, Mary Katherine Wildeman and Anita Snow, “2023 Set Record for US Heat Deaths, Killing In Areas That Used to Handle the Heat,” Associated Press, May 31, 2024.
12. See Section 5 Duties of the OSH Act of 1970.
13. Occupational Safety and Health Administration, “Violation Detail” (web page), issued on March 25, 2021.
14. The agency outlines more limitations of pursuing heat-related enforcement actions under the general duty clause on page 70705 of the proposed rule.
15. See Table VIII.B.10 of RIN 1218-AD39.
16. See Table VIII.G.1 of RIN 1218-AD39.
17. See Table VIII.B.13 of RIN 1218-AD39.
18. Occupational Health and Safety Administration, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings Rulemaking” (web page), accessed on January 13, 2025.
19. Union of Concerned Scientists, Too Hot to Work: Assessing the Threats Climate Change
Poses to Outdoor Workers, August 2021.
20. Steven Woolf et al., The Health Care Costs of Extreme Heat, Center for American Progress, June 2023.
21. Juley Fulcher, The Cost of Inaction, Public Citizen, October 2022 and Adrienne Arsht, Extreme Heat: The Economic and Social Consequences for the United States, The Atlantic Council, August 2021.
22. Occupational Health and Safety Administration, “Heat: Protecting New Workers” (web page), accessed on January 13, 2025.