Extreme Heat Protection for Workers by Fernando Torres, Law Student

As heat waves blanket the nation this summer, there is a resurging call for the U.S. government to act and implement standards for heat protection that protect outdoor workers.

Heat causes more deaths in the United States each year than any other extreme weather. Those most at risk of heat-illness and death are workers employed in outdoor professions, such as farm workers and construction workers. Federal heat standards represent a critical piece of both labor and immigration policy, as such regulations would have major impacts on the agriculture industry.

There are an estimated 2.4 million farmworkers working in the United States. According to recent surveys, about 68 percent of farmworkers are immigrants, and approximately 36 percent lack authorized work status under current US laws.

Data shows that farmworkers die of heat-related causes at a rate 20 times greater than other professions. Between 1992 and 2017, at least 815 farmworker deaths have been attributed to heat, which is likely an undercount due to heat-induced illnesses and conditions not being correctly diagnosed or identified. The Bureau of Labor Statistics estimates that environmental heat exposure claimed the lives of 36 workers in 2021. From 2011-2021, an average of 43 workers died due to environmental heat each year.

Thousands of farms all over the country lack proper heat-illness prevention plans, pushing farmworkers to continually work without water breaks or rest when conditions are dangerous. Only California, Oregon, and Washington require heat breaks for outdoor workers. Colorado’s heat regulation only applies to farmworkers, and Minnesota’s rule only sets standards for indoor workers.

The issue of heat-related deaths captured national attention in 2021 when a heat wave swept across the Pacific Northwest, resulting in the death of farmworkers. Months after the heat wave, President Joe Biden directed OSHA to begin rulemaking for a federal heat protection standard. A proposed standard would clearly set forth obligations for the employer and ensure proper measures are taken to prevent heat-related illness and death.

On average, it takes seven years for a rule to go through the process, and further developments could be stalled depending on who wins the 2024 presidential election. Two years later, a rule has still not been finalized. Attempts at federal legislation have proved no better at getting results. At the state level, lawmakers have had trouble requiring companies to offer rest breaks with shade and water for their outdoor workers. In some states, legislation failed to pass. In others, legislation has stalled, paralleling the U.S. response.

The blazing heat wave that blanketed the Pacific Northwest in 2021 is being repeated across the southern U.S. this year, hitting states like California and Texas. In the absence of federal standards, OSHA urges companies to protect workers from heat-related illness.

Even as summer temperatures continue to rise and endanger workers, Texas last month enacted a law that repeals city and county rules mandating water and shade breaks for construction workers. The law signed by Gov. Greg Abbott nullified a number of local ordinances and was celebrated by pro-business supporters as a way of ensuring regulatory consistency across the state. The law stripped authority away from local officials in certain codes of law, including agriculture and business and commerce. It invalidated ordinances in Austin and Dallas that mandated 10-minute breaks every four hours for construction workers to get water and shade. San Antonio had been considering a similar ordinance; now no city in Texas has authority to impose such a rule.

As states fail to enact legislation that protect workers from deadly heat, or begin to rollback existing efforts, the need for federal action continues to be a high priority for worker advocates. The longer farmworkers and outdoor workers have to wait for federal heat standards, the longer they are put at risk. On June 28 of this year, OSHA fined Florida farm labor contractor Rafael Barajas $15,000 after the heat-related death of a 28-year old visa worker on January 1, 2023, a striking reminder that this is not just a summer month issue.

KJ