The Biden administration recently announced a new rule to address excessive heat in the workplace, but does it go far enough to account for working conditions and regional differences in heat and humidity? Michael LeRoy is the LER Alumni Professor and an expert in labor law at the University of Illinois Urbana-Champaign. He spoke with News Bureau business and law editor Phil Ciciora about the efficacy of the new rule.
The Biden administration recently proposed a new rule to protect tens of millions of workers from the dangers of extreme heat. Is the proposed rule sufficient to protect workers against the increasing dangers posed by climate change?
The proposed rule provides more comprehensive heat regulations. The Occupational Safety and Health Administration already has a “Heat Illness and Injury Program” for worksites that require provision of cool water and shaded areas for rest, as well as training and implementing acclimatization procedures for new workers.
Even if climate change is a controversial subject, there’s no denying that temperatures are consistently rising throughout the nation. Recent news from Las Vegas and Phoenix report that people have been treated for second- and third-degree burns after falling on searing pavement, with burns going through their clothing. Doctors say they’ve never seen anything like this, so it’s an indication that a revised heat rule is justified.
The proposed rule seems good in theory, but how difficult will it be to enforce, especially accounting for regional differences in heat and humidity?
OSHA heat regulations are keyed to National Weather Service guidelines, so location is not necessarily a factor. An early summer heat wave in upstate New York, for example, featured June temperatures that are more common in Arizona. But again, the OSHA regulations adjust by temperature-specific criteria.
Have recent Supreme Court rulings affected OSHA’s ability to regulate safe working conditions?
Yes, the court’s recent ruling in the Loper Bright Enterprises v. Raimondo case removed a pillar of judicial support for OSHA and other regulatory agencies’ rules. The court no longer requires that substantial deference be given by lower courts to agencies such as OSHA. This likely means that OSHA regulations, including this new heat safety rule, will be challenged in lawsuits. Some if not many OSHA regulations could be subject to injunctions that limit the agency’s enforcement powers.
Does such a change leave workers more unsafe?
Potentially, yes. However, 28 states have the authority under the federal OSH Act to administer their own rules. For example, California’s Heat Illness Prevention Standard requires employers to have heat mitigation plans for their workers. Colorado, Minnesota, Oregon and Washington also have heat regulations for the workplace.
Instead of relying on the federal government to craft and enforce these rules, should unionized employees bargain over them in the hope of creating better working conditions that would become the industry standard for everyone else?
Yes, but only 6% of the private sector workforce has union representation.
Perhaps the classic case for a union’s role in heat safety is the tragic death of former professional football player Korey Stringer in August 2001. Stringer was an offensive lineman for the Minnesota Vikings when he died from heat-related medical problems stemming from lax heat safety protocols during NFL training camp.
At the time, the NFL and NFL players union had vague language on this subject in their collective bargaining agreement, but in the aftermath of Stringer’s death, the players bargained for more specific protections, such as more training to spot early signs of heat illness. They also scheduled more evening practices and paid closer attention to cooler equipment and clothing.
Commercial construction firms with unions emphasize many aspects of safety, including heat safety, but the NFL has the money that most employers lack or are unwilling to spend on heat safety.
On the other hand, the agricultural sector, which relies on migrant labor and pays low wages, doesn’t have as much money as the NFL or the construction industry, which is why the new OSHA rule is important and should be implemented.
Editor’s note: To contact Michael LeRoy, call 217-244-4092; email mhl@illinois.edu.
