As Temperatures Rise, Lawmakers Eye More Heat Protections for Workers

Cities across the country have been setting heat records all summer long.

Indeed, the three hottest days on record for the entire Earth were all set in July, according to the United Nations.

“Earth is becoming hotter and more dangerous for everyone, everywhere,” said U.N. Secretary-General Antonio Guterres, attributing the problem to climate change.

Hundreds of workers have died from heat exposure over the last several years and tens of thousands have needed time away from work to recover from heat-related injuries, according to the Bureau of Labor Statistics.

But despite the scale of the problem, the federal government—so far, at least—has not established a nationwide policy, although the Occupational Safety and Health Administration has begun the long process of working on a heat workplace standard, which could take years until its completed (if ever).

In the interim, protecting workers from the rising temperatures of climate change is being left to states and local jurisdictions.

And, as with many policy issues, the way Blue states and Red states are responding differs tremendously.

California Leads Way on Worker Heat Standards

In 2005, California became the first state to implement an outdoor heat standard in the wake of the deaths of four farmworkers. When temperatures reach 80 degrees, employers must provide shade and water to workers; when temperatures rise to 95, the standard requires more breaks and monitoring.

Since then, Colorado, Minnesota, Oregon and Washington have implemented their own workplace heat standards, although each is a little different. Colorado’s applies to agricultural workers only. Minnesota’s is a heat standard for indoor workers, while Washington’s only applies to outdoor workers. Oregon’s applies to both indoor and outdoor settings.

This July, California enacted a second heat standard, which specifically applies to indoor workers. Under this new regulation, which applies to most indoor workplaces, including restaurants and warehouses, when temperatures reach 82 degrees, employers must provide workers with water, rest and cool-down areas, among other things. The new standard also mandates that employers provide their workers training on the standard and develop an indoor and outdoor heat illness prevention plan (which can be part of a broader Injury and Illness Prevention Plan (IIPP)).

Lawyer Elias Kahn, senior product manager for labor and employment, tax, employee benefits and executive compensation, and federal government, on the Practical Guidance team for LexisNexis®, said the Golden State’s new indoor heat standard reflects understandable growing concerns about workers’ health due to climate change.

“Obviously, it’s becoming hotter and hotter,” he said. “People are feeling it.”

Texas and Florida Block Local Heat Standards

Kahn also noted that Red states are taking a different approach on this issue—and some of them are located in the South, where temperatures are the hottest.

As we reported last year, Texas’s Gov. Greg Abbott (R) signed legislation preempting local rules requiring water breaks for construction workers, effectively banning them. The statewide legislation, known as the “Death Star” bill, knocked out local workplace heat ordinances that Austin, Dallas and San Antonio passed to protect construction workers.

After the bill was passed, several cities filed a lawsuit to stop its implementation. In August 2023, the Texas District Court for Travis County ruled that the bill was unconstitutional, but the Texas attorney general’s office filed an appeal, which stayed the court’s ruling. No date has been set for oral arguments.

The Florida Legislature took a similar tack this year when workers in Miami-Dade County began agitating for a local workplace heat standard. In March, the Republican-dominated Legislature passed a bill preempting local heat standards, which was signed into law by Gov. Ron DeSantis (R) in April. The Legislature also rejected legislation aimed at protecting workers from heat illness (HB 945 and SB 762). (See this survey for more detail on Florida’s, Texas’s, and all other states’ labor and employment preemption laws.)

Only One Local Workplace Heat Standard

Kahn said the only major local jurisdiction he’s aware of that has successfully passed its own workplace heat standard is the city of Phoenix, which in March enacted a mandate—applicable only to city contractors and subcontractors—to provide shade, rest, water and air conditioning for outdoor workers.

This workplace heat standard, passed by the Phoenix City Council, applies only to the city; it is not a state mandate. In fact, the only three bills introduced in the Arizona State Legislature this year dealing with workplace heat protections failed, according to LexisNexis® State Net® data.

More State Workplace Heat Mandates Could Be on Horizon

Five other bills looking to set heat-related standards—two in New Jersey, two in New York and one in Rhode Island—are still pending, according to State Net data. Kahn said he could “definitely see other states following suit” on heat protections, especially given the dramatic temperatures we’ve seen during this summer’s unprecedented heat wave.

But he also noted the partisan divide is likely to continue, with Blue states far more likely to pursue heat standards for workers, even though Red states occupy some of the nation’s 

Some States Look to Protect Workers from Heat Illness

At least seven states have considered legislation in the current legislative biennium that would establish standards for preventing heat illness in the workplace. One of those states, Florida, enacted legislation preempting worker heat standards established by local governments.

 

Proposed Federal OSHA Workplace Heat Standard

Kahn also said OSHA recently set out a proposed indoor and outdoor workplace heat standard that would apply to employers across the country. If enacted, the OSHA standard would be triggered when the temperature reaches 80 degrees. Once the temperature hits this point, employers would have to “allow and encourage employees to take paid rest breaks” as “needed to prevent overheating”, and provide cool drinking water, shaded break areas, and increased air movement. If the temperature reaches 90 degrees, employers would have to provide paid 15-minute rest breaks every two hours, a hazard alert, and employee monitoring through a buddy system where coworkers observe each other, or a heat safety coordinator or supervisor observes the employee. Like California, the proposed federal OSHA heat standard would require training for employees and a written heat injury and illness prevention plan.

Kahn explained that this OSHA workplace heat regulation would likely not go into effect until 2026 (at the earliest), and if Donald Trump becomes president, it is likely his administration would quash the regulation. Furthermore, employers and business organizations will almost certainly challenge the OSHA heat standard in court. So, Kahn said “it still might be up to the states to help workers beat the heat.”

—By SNCJ Correspondent BRIAN JOSEPH

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