Juanita Constible has analyzed state workplace heat standards across the United States for the Natural Resources Defense Council since 2018. But she first encountered heat stress as a wildlife biologist nearly 30 years ago, while spending long, hot days studying Canadian toads in a northeastern Alberta forest and nights sleeping in a stuffy tent. 

On one particularly hot day Constible pushed herself too far, caught up in a workplace culture keen on toughing it out. She became so dehydrated and overheated she lost her way on trails she’d walked dozens of times before. Constible has no idea how long she spent wandering around before she stumbled upon her truck. But she’s certain that if she hadn’t made it to the air-conditioned cab, she wouldn’t be alive today.

She’d been trained to operate chainsaws, load all-terrain vehicles onto the back of a pickup truck and handle a bear encounter. But her employer provided no training on extreme heat, the hazard she encountered most often on the job.

“My story had a happy ending,” Constible, now senior climate and health advocate with NRDC, told staff with the Occupational Safety and Health Administration on Monday, during the final days of a public hearing on a federal heat standard proposed by the Biden administration last summer. “But too many untrained workers have not been so lucky.”

Constible had plenty of examples. The 24-year-old construction worker who died after his supervisor mistook his heat stress symptoms for illicit drug use. The 36-year-old garbage collector and father of five who died after suffering for hours from classic heat-related symptoms that his colleagues failed to recognize.

The list goes on.

It is particularly critical that workers are trained to recognize a true heat emergency, Constible said, because just 30 minutes of inaction can spell the difference between life and death. 

“But knowledge and skills won’t save you if you don’t have ready access to clean drinking water, if your employer fails again and again to fix the broken air conditioning or if your employer is finally going to make good on threats to report you to immigration officials,” she said. 

The Occupational Safety and Health Administration’s weeks-long hearing on the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings draft rule ended on Wednesday. 

Worker advocates, labor leaders and occupational health and safety experts testified to the urgent need for a federal standard to protect workers during the increasingly frequent and brutal heat waves that last longer in a warmer world. Industry representatives, by contrast, argued against the federal rule as too inflexible and lobbied for a rule like the one Nevada adopted in April. 

The Nevada rule, which has not yet proved its ability to protect workers through the state’s blistering summers, requires employers to set their own heat-prevention programs rather than follow requirements triggered by a temperature threshold as outlined in the draft OSHA standard.

Hundreds of workers have died after laboring in extreme heat over the past few decades and thousands have suffered serious injuries. Still, industry representatives argued that employers are best able to protect their workers.

The proposed OSHA rule has initial and high-heat triggers that require employers to take protective steps using a heat index, a measure of what the joint effects of heat and humidity feel like to the body. Employers must provide adequate water, rest and shade when the heat index hits 80 degrees Fahrenheit, and take additional measures, such as providing paid 15-minute breaks every two hours, once it reaches 90 degrees.

Over the past two and a half weeks, industry representatives offered many of the same objections to the federal standard: the rule is too burdensome, too costly, too inflexible and fails to recognize the great diversity of sizes and operations of the businesses that would be covered by the rule. They preferred a “performance-based” rule that allows employers to determine how to reduce heat hazards on the job.

“OSHA’s proposed standard is a one-size-fits-all approach,” said Marc Freedman, vice president of workplace policy at the U.S. Chamber of Commerce, noting that OSHA staff would be hearing that phrase throughout the hearing. “The proposed standard makes no allowances for differences in geography, workplaces and employee sensitivity, nature of the job or task or any of the other many variables associated with determining how to protect employees from overexposure to heat.”

Freedman found the heat threshold trigger particularly objectionable, arguing that 90 degrees Fahrenheit in Houston isn’t the same as 90 degrees in Portland, Maine, even though the heat index accounts for differences in humidity. He recommended following the Nevada rule, which requires employers to do a one-time assessment to determine whether a heat hazard exists and take steps to mitigate risk if it does. The rule does not include a heat trigger.

If OSHA decides to move forward with a standard, Freedman said, it should develop a performance-oriented rule that directs employers to develop a heat-illness-prevention program with identified components but acknowledges that what is reasonable and necessary to protect employees may vary across industries, employer size and geography.

Other industry representatives, as Freedman predicted, echoed his one-size-fits-all argument over the course of the hearing along with his support for the Nevada standard.

“Trying Our Best Not to Kill Them”

On Friday, OSHA staff solicited feedback on industry objections to the heat rule from two of the longest-serving top officials in the agency, David Michaels and Jordan Barab.

Andrew Levinson, director of OSHA’s Directorate of Standards and Guidance, asked if there was a way the agency could make the heat standard more performance-oriented while still ensuring that workers are adequately protected.

“Any standard that OSHA issues has to be enforceable and has to be preventive,” said Barab, who served as deputy assistant secretary of labor for OSHA throughout former President Barack Obama’s two terms. “Some of the witnesses we’ve heard promoting performance-based standards have said things like, the outcome should be the goal and OSHA should accept ‘whatever works.’ The problem is you don’t know what’s working until it doesn’t work. In other words, until after someone has gotten hurt or died.”

And that’s basically what happens now, he later explained. The “general duty clause” in the 1970 OSH Act requires employers to provide a safe and healthful workplace. 

But it hasn’t been working, Barab said. “There’s still far too many workers, many more than we know, that are dying and getting sick from heat.”

Stephen Schayer, director of OSHA’s Office of Physical Hazards, asked Michaels whether he thought the agency should model its heat rule after Nevada’s recently promulgated rule.

“The Nevada standard is severely lacking in enforceability,” said Michaels, an epidemiologist and professor at George Washington University who served as assistant secretary of labor for OSHA during Obama’s two terms. “It essentially allows employers who decide not to take the high road to really not do anything significant to protect workers.”

During opening remarks, Michaels, OSHA’s longest-serving administrator, recalled what happened after BP’s Deepwater Horizon drilling rig exploded in the Gulf of Mexico—renamed the Gulf of America by President Trump—in April 2010, causing the largest marine oil spill in history. 

That summer, Michaels said, more than 40,000 workers wearing heavy-duty chemical resistant suits, hard hats and impermeable gloves and boots cleaned up the oil in the shadeless heat of the Gulf Coast states, where temperatures often exceeded 90 degrees.

Cleanup teams included workers who weren’t used to the heat, were overweight or had pre-existing lung or heart problems, all conditions that increase the risk of heat illness.

OSHA asked BP to follow the work-rest regime that the military deployed to protect healthy young soldiers from heat exposure in Iraq and Afghanistan. The company complied with rules that were much stricter than the proposed heat rule, Michaels said, probably because 11 workers had already died in the explosion and BP wanted to avoid further public backlash.

He recalled hearing from high-level elected officials who saw workers at the cleanup site resting and rehydrating in the shade. “Clearly angry, they asked me, ‘Why weren’t we making those workers work harder?’ I had to explain, ‘We’re trying our best not to kill them.’”

Not a single worker involved in the cleanup was killed by heat, Michaels said, a success that inspired OSHA’s 2011 national campaign promoting water, rest and shade. The agency asked employers to voluntarily embrace that approach. Many did, he said, but many others did not. 

Heat deaths and heat illnesses continued, Michaels said. 

“We’ve heard some of the representatives of employers say that a voluntary standard is all that’s needed; that with training and better guidance, employers will ensure workers will be protected from extreme heat,” Michaels said. “That’s fantasy.”