Will Heat Protection Rules Be Finalized Before Election? – Mother Jones

This story was originally published by Grain and is reproduced here as part Climate Office cooperation.

In the summer 2011. Victor Ramirez was working in a Walmart warehouse in Mira Loma, California, when he suddenly fainted. When he regained consciousness, he was lying on the floor, disoriented by what had just happened, with a terrible headache. Although he received no medical attention—his boss only told him to go home if he didn’t feel well enough to continue working—he knew the sudden onset of unconsciousness had to be brought on by the relentless heat in the warehouse.

“When it’s hot outside, it’s even hotter in the warehouses because of all the machinery,” Ramirez said. Milling in Spanish. “If it’s about 110 degrees outside, it’s still about 10 degrees inside.” The heat was exacerbated by the lack of water and poor air circulation inside the warehouse.

Later that summer, he experienced similar symptoms again. He was flushed, sweating profusely, and had a headache. This time, he knew they were signs of heat stress and told his supervisor, who asked Ramirez why he was “acting stupid” and asked why he wasn’t working faster. In both cases, no one offered him emergency care or even recommended that he see a doctor. (Walmart declined to comment on Ramirez’s experience, saying the site was operated by a third party, Schneider Logistics. A Schneider Logistics spokesman did not respond to a request for comment.) Grist’s (request for comment.)

“I’m nervous, for myself and my daughter,” said Ramirez, whose family relies on his salary to pay the bills. He now works at another warehouse, but the 55-year-old constantly worries that something could happen to him because of unsafe heat exposure on the job. Inadequate water access, limited air conditioning and a dismissive attitude toward heat exposure are common in his industry. Ramirez’s fears resurface every year as temperatures rise and summer approaches.

Ramirez has reason to worry. Extreme heat is the most dangerous extreme weather event, and the threat level is rising because of climate change. The U.S. Bureau of Labor Statistics reports that dozens of workers die each year from heat exposure at work, with a total of 436 deaths recorded between 2011 and 2021, although federal officials have noted that this is widely considered an underestimate. Yet there are no national laws protecting workers who work inside or outside from the heat — a fact that has led Ramirez to fight for protection in Southern California and others to advocate for stronger protections nationwide.

“Pay attention to the workers,” Ramirez said. “We are what matters.”

As of this month, the Occupational Safety and Health Administration, or OSHA, is one step closer to creating America’s first national heat stress rule for workers. The agency, which announced it would begin the process of developing a federal heat rule three years ago, submitted a request to the White House Office of Management and Budget, or OMB, for review on June 11. It’s a key step that signals the rule could be finalized relatively soon — but legal experts and labor advocates worry about the coming legal, bureaucratic and political challenges to OSHA’s rulemaking process, especially in an election year. A Trump victory in November could spell doom for any federal heat stress rule — and even without a change of administration in 2025, OSHA’s rule could be subject to legal challenges in the courts.

Experts, advocates and agency-organized panels have suggested the standard could mandate training for workers and employers to recognize and treat the symptoms of heat stress, a process that allows workers new to an area to gradually acclimate to dangerous temperatures, and a temperature threshold that triggers heat-related illness prevention programs that require more frequent, longer breaks. OSHA has previously said the rule’s mandates could take effect when the heat index approaches 80 degrees Fahrenheit, Bloomberg Law reported.

Such a rule could be transformative. “OSHA regulates the entire workforce,” said Cary Coglianese, director of the Penn Program on Regulation and a professor at the University of Pennsylvania Law School. “The heat affects every outdoor worker and some major industries—whether it’s construction, travel, transportation, I mean, whatever.”

“OSHA regulates the entire workforce. Heat affects every worker who works outdoors and some major industries — whether it’s construction, travel, transportation, I mean, whatever.”

The draft proposal, which will go to the White House, marks the beginning of a review process that could take about 90 days — though it could be longer or shorter, Coliagnese said. “A lot certainly depends on how hard the administration pushes to get the rule withdrawn,” Coglianese said.

The White House Office of Information and Regulatory Affairs did not respond to Grist’s request for comment on when the review will be completed. An OSHA spokesman said in a statement, “Heat is a serious workplace hazard that threatens the health, safety and lives of workers every year,” adding that establishing a federal heat standard is a priority for the Department of Labor. “As of Tuesday, June 11, the proposed rule is before the Office of Management and Budget for review, and we are one step closer to providing workers with the protection they need and deserve.”

Once the review is complete, details of the proposed rule will be made public, and the public will then be given at least 60 days to submit comments on the rule to the agency. Coglianese cautions that a rule with such broad reach means OSHA will likely receive many comments.

After the comment period ends, OSHA will need time to consider and address any concerns raised by the public. How long the agency takes to address them “is a function of the comments that come in, their priorities and perhaps how vexatious some of the issues are,” Coglianese said. After OSHA receives the updated draft, there will be another White House review; if all goes well, the rule will be finalized and published in the Federal Register.

OSHA’s latest progress in the process is welcome news for many advocates who have spent years fighting for heat protection — like Nezahualcoyotl Xiuhtecutli, senior coordinator of grassroots advocacy for the National Sustainable Agriculture Coalition. Xiuhtecutli was on a working group that made recommendations to OSHA to help develop the proposed rule. But he worries the rulemaking process could take much longer than this year.

“It could take a few more years,” Xiuhtecutli said. “I think the Biden administration is interested in making it happen, so I hope they hurry up and do it.”

Rep. Greg Casar, a Texas Democrat who went on a one-day hunger strike last year to draw attention to the urgent need to protect workers, agrees that when it comes to extreme heat, time is of the essence.

“We need this heat protection as soon as possible. We need it yesterday,” Casar said. He added that he has confidence in the Biden administration to “do it right and do it quickly.”

But the years-long fight by workers and human rights advocates to introduce nationwide thermal standards now faces a major obstacle: the upcoming presidential election.

Coglianese said it’s unlikely the rule will be finalized before November or even January of next year. He added that if Trump takes office, he’ll likely put a hold on any federal regulations that haven’t been finalized yet. Even if the federal heat rule were to “pass” at the end of Biden’s term, Congress would have the authority to overturn the rule under the Congressional Review Act — and Coglianese expects Trump to approve such an overturn. (Trump’s campaign did not respond to a request for comment.) Grist’s (request for comment.)

“(If) Biden loses the election, that party will be stuck there forever, or it could just be destroyed.”

Supporters echo Coglianese’s concerns. “(If) Biden loses the election, he’s going to be stuck there forever, or he could just get killed,” Xiuhtecutli said. “I hope it continues to grow rapidly because people’s lives depend on it.”

Experts’ predictions about the future of regulations reflect the recent politicization of extreme heat. Earlier this year, Florida Gov. Ron DeSantis enacted anti-immigration legislation that included a law barring municipalities from requiring employers to provide safeguards, such as shade or water breaks, for workers who work outdoors. The law closely mirrored a Texas law barring local governments from creating such regulations that was passed last summer.

But other communities have gone in the opposite direction. Phoenix passed a citywide law in March requiring heat safety plans for all businesses with which the city contracts.

At the state level, only six states—California, Colorado, Nevada, Minnesota, Oregon, and Washington—have enacted heat protection regulations for outdoor workers, while three of those states have enacted similar protections for indoor workers as well.

California is the latest to do so, having just passed a law to enforce heat protection for indoor workers that requires employers to provide breaks, cooling areas and water when the temperature in a room reaches 82 degrees. If the temperature exceeds 87 degrees, companies could also be required to install cooling equipment, adjust work schedules, provide more breaks and slow down workers’ production rates. Tim Shadix, legal director at the California nonprofit Warehouse Worker Resource Center, describes it as “the most comprehensive” set of indoor heat protection regulations in the U.S. “Of course, when the theory hits the road, it’s going to be how employers respond to it and how it’s enforced,” Shadix said.

But Shadix hopes OSHA’s rules will go further than California’s by setting lower temperature thresholds that trigger heat exposure requirements. Shadix calls California’s thresholds “too high” and thinks a lower federal threshold “would be a very good thing for workers.”

But Xiuhtecutli, of the OSHA working group, doesn’t expect the proposed federal rule to include a national temperature threshold. “They could leave that up to the region to determine,” he said. The Supreme Court on Friday overturned a 1984 decision known as the “Chevron Doctrine” that allowed federal agencies to more easily regulate the environment, public health, workplace safety and other issues. Reversing that precedent reduces the administration’s ability to effect policy changes through federal regulations, suggesting that enacting a national heat standard for workers could be more vulnerable to legal challenges.

Coglianese describes the road to finalizing a federal heat standard as “an uphill battle.” Still, he says, the case for federal protection is becoming clearer. “I think in the long run, the heat is coming. The politicians who try to fight it are probably going to lose in the end.”

In the meantime, he asks, “How many lives will we lose to extreme heat?” A record 2,300 people in America are expected to die from heat-related causes in 2023, and this summer could be even hotter than the last. “I hope we take steps to reduce that number, and I suspect most Americans would probably feel the same way,” Coglianese said.