Biden-Era Worker Heat Rule Inches to Finish Line Under Trump

The Trump administration is bucking House Republicans, siding with labor unions and the business community to install workplace heat stress protections this year.

The US Occupational Safety and Health Administration announced it will move forward with a public hearing on the Biden-era heat rule—not the significant delays or complete abandonment that legal observers predicted after President Donald Trump‘s election win.

The hearing brings the rule closer to the finish line and defies House Republicans’ wishes to have the proposal completely withdrawn or rescinded. Trump also faces pressure from industries that are likely to be affected, such as construction and warehousing, to move forward on the proposed heat rule rather than leave it in the hands of the next Democratic administration.

“There are political considerations, so it’s conceivable that what they will do is promulgate a rule, but the rule will be watered down,” said Michael Duff, a professor of law at St. Louis University School of Law. “In other words, you’re not hit with a one-size-fits-all rule that would be applied no matter what, you’re allowed to take into account workplace specific conditions.”

The outgoing Biden administration set the informal public hearing to June 16 on the proposal that sets an initial trigger at a heat index of 80 degrees Fahrenheit and a high heat trigger of 90 degrees Fahrenheit for when employers must implement measures to protect their workers. The business community has complained the rule is unnecessarily broad and imposes excessively burdensome requirements, like the 20% acclimatization period.

Union Pressure for Rulemaking

The administration is juggling its public support from the International Brotherhood of Teamsters while proceeding with a business-friendly approach usually adopted by Republican administrations. Trump’s OSHA is balancing the demands of unions and employers on the rule.

The union has an incentive to press the administration on the rulemaking since heat is a big issue for their members, many of whom are freight drivers and warehouse workers, according to Patricia Campos-Medina, executive director at Cornell University’s worker institute.

Employers are incentivized to support a federal standard to seek uniformity among a growing number of states trying to address heat-related illnesses in workers, which is creating new compliance costs, attorneys told Bloomberg Law.

“Extreme heat waves have increased in the last 10 years, so you’re seeing more of a crisis on that, so I hope the administration allows for some minimum guidance,” Campos-Medina added.

Labor Secretary Lori Chavez-DeRemer, whose nomination the Teamsters endorsed, delivered a keynote address earlier this month at the union’s Unity Conference in Nevada. Her selection to lead the Department of Labor signaled the start of a potentially transformative dynamic between the Republican Party and unions.

The Teamsters continue to actively support legislation on safeguarding workers from extreme weather conditions in at least nine states and they want OSHA to proceed on rulemaking for the standard, according to Matt McQuaid, who’s a part of the union’s department of strategic initiatives.

“We have supported a federal heat standard for years, and found it bogged down in prolonged delays and bureaucracy throughout the Biden administration,” he said while noting the labor union was still pleased the Biden Administration announced the proposal months before the election.

McQuaid didn’t specify what the union would want the Trump Administration to keep or alter from the proposed rule.

But in its public comments on the rule, the group said it wants a final standard to require more training for supervisors, specifics on a location for warning signs of high heat areas, and a range in temperature for drinking water—among other things.

Performance-Oriented Approach to Heat

The proposed federal heat rule has faced widespread criticism from businesses that argue its too prescriptive.

A specification standard states safety requirements more explicitly, like a guardrail must be a certain height, while a performance standard generally doesn’t specify how a company should comply and rather focuses on the desired outcome of protection from a recognized hazard.

Because heat isn’t experienced the same across the country and in the workplace, management-side attorneys would like to see a more performance-based approach to narrow the scope of the proposed rule.

Requiring shade and acclimatization appears simple, but creates major challenges when applied broadly, according to Jason S. Mills—a partner at Sidley Austin LLP. “It looks good on paper, but in many settings, it’s impossible to actually effectuate,” he said.

“We have a single regulation that is intended to apply to industries everywhere which makes it almost impossible to follow,” Mills added. “And if it’s impossible to follow, you’re going to be dealing with the constant steering of enforcement.”

The agency noted that the proposed trigger points are based on the heat index and wet bulb global temperature—which were supported by its sister agency the National Institute for Occupational Safety and Health. NIOSH is responsible for conducting research and providing recommendations on work-related injury and illness prevention measures.

The proposed standard would apply to a range of sectors—like construction and agriculture—that include both indoor and outdoor work areas. The nationwide plan would require employers to implement a heat emergency response and planning procedure, as well as heat trigger requirements.

Some of those mandates are specific to work areas and include providing employees with drinking water or break areas for outdoor worksites.

Enabling employers to tailor a heat program to their workforce and environment would make it more possible for a heat standard that encompasses both indoor and outdoor together, said Alana Genderson, a partner at Sidley Austin LLP.

There were 33,890 estimated work-related heat injuries and illnesses that resulted in days away from work from 2011-2020, according to the Bureau of Labor Statistics. In response, OSHA launched the public comment period for its first nationwide heat stress rule last August.