Punching In: What’s In the Cards for OSHA Heat-Stress Rulemaking

Monday morning musings for workplace watchers

Doug Parker Download | Going the EO Way

Bruce Rolfsen: American workers will start the spring without the protection of a federal heat-stress standard.

While Democratic lawmakers have called for the Occupational Safety and Health Administration to adopt a heat-stress prevention rule, the development of the regulation is taking a back seat to drafting Covid-19 and infectious disease regulations.

“These are health-oriented standards and all involve the same teams, essentially, that are working on them,” Doug Parker, who oversees OSHA as the assistant secretary of labor for occupational safety and health, said in an exclusive interview with Bloomberg Law.

Last summer, Oregon and Washington state enacted emergency heat rules during a record-setting wave of high temperatures. But Parker said he doesn’t foresee an OSHA emergency temporary standard for heat stress.

“We don’t have current plans to do an emergency rule. Options are always on the table, but it’s not in our current thinking right now,” he said. “Our focus will be on moving forward with a permanent rule and using other tools available to us to educate employers and workers on the dangers of heat.”

The OSHA chief said the U.S. Supreme Court’s Jan. 13 decision blocking enforcement of the agency’s vaccination-or-testing Covid standard for larger employers won’t deter OSHA from enacting a heat rule, even though heat is also a threat away from work.

“Excessive heat is a function of your work assignments,” Parker said. “I’m not going to predict what courts are going to do in the future, but I don’t see it as an impediment to act.”

BLS Heat Deaths

Bruce Rolfsen

The Bureau of Labor Statistics found that from 2011-19, hot temperatures led to the on-the-job deaths of 345 workers, and 31,000 injuries or illnesses serious enough to require medical treatment beyond first aid or at least one missed day of work.

Worker advocates believe the numbers are likely higher because injuries or deaths may be attributed to other causes, such as a heart attack or a worker who faints from heat and then falls.

The Biden administration, under pressure from Democratic lawmakers, formally began its rulemaking in October. A request for information from the public closed Jan. 26 (RIN:1218-AD39). The responses reflect wide differences on the need for a standard, and what a regulation should include.

“The lack of a federal heat standard makes it difficult for the agency to enforce heat-related worker protections resulting in the issuance of largely ineffective hazard letters and fines that are absurdly reduced if not entirely dismissed,” the International Brotherhood of Teamsters said in a Jan. 26 letter.

The Construction Industry Safety Coalition told OSHA, in a letter the same day, that it has “significant concerns” with any regulation “that imposes complicated requirements on contractors and requirements that are triggered by threshold temperatures that are common in wide swaths of the country for much of the year.”

Without a heat-stress regulation, OSHA depends on the Occupational Safety and Health Act’s general duty clause to cite employers it believes endangered workers because of too-hot conditions. The law requires employers to provide a workplace that is free of known deadly hazards that can be reasonably abated.

However, judges have ruled against OSHA in at least six recent cases because the heat hazard and protective actions employers could have taken weren’t clearly established by the agency.

Colorado, California, Washington, and Minnesota have heat standards protecting outdoor workers, and California and Washington are developing rules for indoors. Oregon is considering a standard that would cover indoor and outdoor workers, and could issue a final rule in April.

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Rebecca Rainey: President Joe Biden has been largely unable to win the congressional approval needed to deliver the broad labor policy changes—think the PRO Act and raising the federal minimum wage to $15—he promised on the campaign trail.

Instead, Biden’s started smaller by focusing on the federal workforce, issuing a handful of executive orders aimed at raising wages, increasing disclosures about labor rights, and requiring vaccines for federal employees and contractors.

That’s part of the argument GOP-led states have lodged against the administration’s move to raise the minimum wage for federal contractors to $15: Only Congress, not the president, has the authority to regulate wages in the economy.

After legislation to gradually raise the federal minimum wage from the current $7.25 to $15 failed in the Senate last March, Biden issued an executive order April 27 directing the U.S. Labor Department to increase the minimum wage for federal contractor workers to $15, a change that applied to an estimated 327,000 workers.

GOP-led states filed two separate lawsuits last week challenging the Biden administration’s move to raise the minimum wage for workers on federal contracts. But it’s unclear if that legal approach will have legs.

A similar lawsuit filed by Arkansas Valley Adventure LLC, seeking to block the $15 wage for contractors from taking effect, failed to convince a federal court in Colorado last month that the DOL went beyond its authority in issuing the pay raise.

The last two administrations also addressed contractor wages via executive order. The minimum wage for federal contractors was $10.95 before the Biden administration raise, which was set via an executive order by former President Barack Obama. Former President Donald Trump issued an order in 2018 to exempt workers who provide “seasonal recreational services” on federal land from the contractor wage requirements.

“Presidents have used the Procurement Act authority to make changes to improve contracting since the Truman administration,” Anastasia Christman, a senior policy analyst at the left-leaning National Employment Law Project, told Punching In. “So this practice has been around for a long time. And it’s clearly part of the authority of the President to make these changes for economy and efficiency.”

We’re punching out. Daily Labor Report subscribers, please check in for updates during the week, and feel free to reach out to us.