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The Biden administration cited climate change as a driver behind its planned crackdown on heat-related illness and deaths among workers, but other factors likely also have contributed.
Concerns over restrictions placed on federal safety officials under the Trump administration and the disruption caused by the COVID-19 pandemic were likely also an impetus for the move, experts say.
The Biden administration on Sept. 21 announced an enforcement initiative by the U.S. Department of Labor and the Occupational Safety and Health Administration on heat-related hazards, developing a national emphasis program on heat inspections and embarking on a rulemaking process to draft and introduce new workplace heat standards, applicable to both outdoor and indoor worksites.
In 2019, 43 heat-related deaths and 2,410 serious heat-related injuries and illnesses were reported to OSHA, according to the DOL, but officials say underreporting of incidents is widespread. In its announcement, the Biden administration noted “increasing heat precipitated by climate change” as a looming threat and cause for the initiative.
Labor and employment attorneys, however, say there are other more considerable factors driving heat hazards and fueling federal efforts to address heat-related injuries and illnesses.
John Ho, labor and employment attorney, and chair of Cozen O’Connor’s OSHA practice in New York, said part of the reason for the sharpened focus on heat stress is because OSHA has been restricted in citing violations and enforcing safer workplace standards.
In 2019, the Occupational Safety Health Review Commission issued a decision that vacated a heat stress general duty citation, making it harder for OSHA to cite the hazard under the general duty clause, which is the agency’s signature rule that requires employers to provide safe workplaces or face fines.
“The general duty clause had become a ‘catch-all’ standard,” Mr. Ho said. In the absence of outlined rules on heat hazards, “employers have been left somewhat confused as to what their obligations are. That language, too, has helped drive this attention on heat stress.”
The latest heat illness guidance includes benchmarks for the implementation of heat illness prevention programs by employers, requiring businesses to start taking action when the heat index reaches 80 degrees.
“This heat index is now a critical issue for employers and will require the employer to now closely monitor the heat index both outside and inside the workplace and then activate its program to prevent employees from suffering a heat-related illness,” said Mark Lies, partner at Seyfarth Shaw LLP in Chicago.
COVID-19 and the continued effect of the pandemic on the labor market and business operations are also at play, Mr. Ho said.
“The CDC has identified heat stress issues specifically related to COVID. The re-acclimatization process for employees returning to an environment with heat worsens the risk of heat stress,” Mr. Ho said.
“You have to acclimate to heat just like you have to acclimate to anything else,” said Adam Richard Young, Chicago-based partner at Seyfarth Shaw. “Coming back to work, that is one of the highest risk points for heat. Face coverings can also exacerbate the risks to maybe necessitate more breaks or more water.”
In addition, the health effects of COVID-19 will continue to be a factor worsening the heat risks for workers.
“Individuals who suffered from the effects of COVID or long COVID may have some reduced ability to take oxygen from the air or deal with heat,” Mr. Young said, worsening health risks for workers, and adding to the burden on employers to mitigate heat hazards.
As part of the OSHA initiative, the agency will also establish a national advisory committee, which it says will focus on addressing these factors and outlining best practices tailored to individual industry needs – the most at-risk of which will receive more of its time and resources, including more inspections.
One day after Oregon Gov. Kate Brown directed the state’s Occupational Safety and Health Administration to establish emergency rules to protect workers from extreme heat, the agency followed through.