Scorching Summer Tests States’ Workplace Heat Rules

By: - August 16, 2022 12:00 am

Pedro Lucas, nephew of farm worker Sebastian Francisco Perez who died last summer while working in an extreme heat wave, talks about his uncle’s death in St. Paul, Ore. New Oregon worker heat standards may serve a test case as a handful of other states and the federal government develop rules. Nathan Howard/The Associated Press

PORTLAND, Ore. — When a record-breaking heat wave settled over the Pacific Northwest in late July, it didn’t take long for high temperatures to test the effectiveness of new state safety rules aimed at addressing the effects of climate change on both indoor and outdoor workers.

As temperatures exceeded 95 degrees Fahrenheit for more than a week in Portland and shot even higher in other parts of the state, people who work outside experienced “a bit of a mixed bag,” said Reyna Lopez, executive director of PCUN, a farmworker’s union that represents thousands of agricultural workers in Oregon’s Willamette Valley.

“We heard some folks were following the rules, and they were getting water and additional breaks,” Lopez said. “But we were hearing a lot of mixed reviews around the shade structures and having shade available to workers, especially folks that were in kind of more remote places.”

The Oregon rules requiring rest breaks and water and shade access, which took effect June 15, are among the strictest guidelines in the nation for worker safety in the heat, both indoors and out. A separate rule addresses exposure to wildfire smoke. With workers now undergoing mandatory training and state inspectors beginning enforcement, the Oregon standards may serve as a test case as a handful of other states and the federal government slowly develop rules amid industry pushback.

Washington state adopted temporary rules last year to help outdoor workers manage heat and smoke exposure and is working on permanent rules. California, since 2005, has had rules for outdoor workers that require shade, water and rest breaks.

Beyond the West Coast, though, there are limited safety rules for workers facing extreme heat, even as climate change has worsened conditions for many people who labor outdoors. Minnesota has heat safety rules for indoor workers, and heat safety regulations are pending for workers in both Maryland and Nevada. But just 21 states have separate agencies overseeing workplace safety; most states rely on the federal Occupational Safety and Health Administration, known as OSHA, which does not have nationwide safety standards to protect workers from heat exposure.

More than 130 labor and environmental organizations, led by the nonprofit advocacy group Public Citizen, have called on OSHA to issue emergency rules. The Biden administration in 2021 directed the federal agency to develop workplace regulations for heat exposure, but that process takes on average seven years to implement and could be stalled if the next occupant of the White House is less open to such rules.

U.S. Rep. Judy Chu, a California Democrat, also has sponsored legislation to force OSHA to adopt a workplace heat standard within two years. The bill has been heard in the House Education and Labor Committee.

Nationwide, though, there’s considerable industry opposition to proposed state and federal rules, particularly among agricultural and forestry interests. Many industry groups argue that federal regulators should avoid sweeping rules and instead, take into consideration regional temperature and humidity differences, worker acclimatization to the heat and other factors that may vary by state and season.

Regulators also should acknowledge that employers often have little control over the health conditions of some workers or choices they make outside the workplace that may result in them being “unfit for physical labor upon arriving at work,” the American Farm Bureau Federation’s vice president of public affairs argued in comments on the proposed national rules.

In Oregon, a group of manufacturing and timber interests filed a lawsuit challenging the state’s new heat rules, saying they ask too much of employers and are overly broad for some industries. The lawsuit by the Oregon Manufacturers and Commerce, Associated Oregon Loggers, Inc. and the Oregon Forest Industries Council has not affected the rollout of the rules or state enforcement. None of the organizations responded to a request for comment.

Yet workers, the unions representing them and public health experts continue to clamor for additional protections from extreme heat. In New York, the International Brotherhood of Teamsters has been organizing rallies for the UPS drivers it represents, who work in vehicles without air conditioning.

In Texas, health officials called on the state prison system to address the effect of extreme heat on incarcerated people and workers. Only 30% of the state’s prison units have air conditioning, according to a study by Texas A&M University’s Hazard Reduction & Recovery Center. Prison units regularly reach 110 degrees indoors, and temperatures in at least one unit have topped 149 degrees, the study found.    

Employers in Oregon now are required to train workers who face potential heat exposure on how to prevent heat illnesses as well as how to provide adequate access to shaded areas, cool drinking water and additional rest breaks when the heat index exceeds 80 degrees. When it reaches 90, workers must take a 10-minute break every two hours. They’re entitled to a 15-minute break every hour when it’s over 100 degrees.

A few months after the heat rules became official, it’s unclear how closely employers are following them. So far this summer, a spokesperson for Oregon OSHA said the agency has received 183 complaints from employees alleging a lack of water, rest breaks and acclimatization at warehouses, restaurants and construction sites.

Since the rules took effect, the state has opened an estimated 252 inspections, some of which could result in fines. Not all the inspections are related to heat, said department spokesperson Aaron Corvin. But when state inspectors address any workplace concern, they use it as an opportunity to also check employers’ plans to address heat illness prevention.

“It is important to remember that workers have a right to a safe and healthy workplace. That includes the right to raise concerns, free of retaliation, and to get those hazards corrected,” Corvin said in an email.

Many workers have reported they hadn’t been trained, or that their employers were ignoring the safety rules, said Kate Suisman, an attorney with the Northwest Workers’ Justice Project. Suisman said she met recently with some former clients who had previous on-the-job injuries and who now participate in the project’s healthy worker committee. The reports she got about workplace heat training weren’t promising.

“I said, ‘Has anyone gotten training yet?’ And no one had gotten it,” she said. “So that was disheartening because you know, the idea is the training for the heat is supposed to happen before the heat exposure.”

Most medical and workplace experts understand that heat is vastly underreported as a cause of workplace injury or death. Heat may be responsible for at least 170,000 work-related injuries in the United States each year, according to a report by Public Citizen, the nonprofit consumer advocacy organization. The U.S. Bureau of Labor Statistics recorded 43 deaths from heat in 2019, the most recent year available. But many researchers suspect that exposure to heat contributes to as many as 2,000 worker fatalities annually, said Juley Fulcher, Public Citizen’s worker health and safety advocate, and the author of that group’s report.

That means heat could be one of the top three causes of occupational fatalities, if not the top cause. As climate change makes for longer and more intense heat waves, it’s even more critical to ensure that workers have protective measures, Fulcher said.

“Employers need to step up and find ways to make sure that their workers are protected from the heat,” she said, “and the higher the temperature goes, the more kinds of protective measures need to be in place.”

Last summer, although work already was underway on more permanent heat protections, Oregon put in place emergency heat rules after the death of Sebastian Francisco Perez, a 38-year-old farmworker from Guatemala who perished when temperatures reached 104 degrees during the unprecedented heat dome that seared the Pacific Northwest.

Farmworkers in Oregon were saddened and frightened by Perez’s death, Lopez said.

“People were wondering, ‘Is that gonna be me next?'” she said. “These are the folks that are on the front lines of hotter days, and they are out there risking their lives every day, not just through hot days, but also through toxic air quality. We need to make sure that we are treating people with dignity and respect.”

There are many easily achievable workplace adjustments that can save lives and keep workers healthy, said Ali O’Neill of O’Neill Construction Group in Portland. During the most recent heat wave, her crews ended their workday one or two hours early, depending on the temperature and their fatigue. On one job site, they got a variance from the city of Portland to start work an hour earlier. O’Neill said she told some of their customers in advance that it was likely they’d experience delays because workers just aren’t able to keep up the same pace in the heat.

Weather always has been a consideration in construction and always will be, O’Neill said. She’s often surprised at how friends with office jobs are barely aware of the 10-day forecast.

“If you’ve stood out on a construction site in a hard hat, safety vest, blue jeans, work boots, even when it’s like 80 or 85, it’s really hot,” she said. “And then when you’re framing or carrying rebar or something like that, it’s really hot.”

But after 24 years in business, O’Neill said it’s obvious that climate change has had more of an effect on scheduling and construction timetables and the health of the company’s workforce than in the past. Safety measures have a cost, but they’re always worth it.

“We’re not going to compromise on people’s safety,” she said. “This is a very, very real way that a person can die while they’re working for you. We want all of our employees to go home safely every day.”

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Erika Bolstad
Erika Bolstad

Erika Bolstad is a Stateline correspondent based in Portland, Oregon, and the author of Windfall, published by Sourcebooks in 2023. Previously, she wrote for E&E News, the McClatchy Washington Bureau and the Miami Herald.