Workers Exposed to Extreme Heat Have no Consistent Protection

Despite a push from the Biden administration, there is still no federal heat standard in the U.S.

A maintenance worker pushes a cart in Las Vegas, Friday, Aug. 25, 2023.
A maintenance worker pushes a cart in Las Vegas, Friday, Aug. 25, 2023.
AP Photo/Ty O'Neil

RENO, Nev. (AP) โ€” Santos Brizuela spent more than two decades laboring outdoors, persisting despite a bout of heatstroke while cutting sugarcane in Mexico and chronic laryngitis from repeated exposure to the hot sun while on various other jobs.

But last summer, while on a construction crew in Las Vegas, he reached his breaking point. Exposure to the sun made his head ache immediately. He lost much of his appetite.

Now at a maintenance job, Brizuela, 47, is able to take breaks. There are flyers on the walls with best practices for staying healthy โ€” protections he had not been afforded before.

"Sometimes as a worker you ask your employer for protection or for health and safety related needs, and they don't listen or follow," he said in Spanish through an interpreter.

A historic heat wave that began blasting the Southwest and other parts of the country this summer is shining a spotlight on one of the harshest, yet least-addressed effects of U.S. climate change: the rising deaths and injuries of people who work in extreme heat, whether inside warehouses and kitchens or outside under the blazing sun. Many of them are migrants in low-wage jobs.

State and federal governments have long implemented federal procedures for environmental risks exacerbated by climate change, namely drought, flood and wildfires. But extreme heat protections have generally lagged with "no owner" in state and federal governments, said Ladd Keith, an assistant professor of planning and a research associate at the University of Arizona.

"In some ways, we have a very long way to catch up to the governance gap in treating the heat as a true climate hazard," Keith said.

There is no federal heat standard in the U.S. despite an ongoing push from President Joe Biden's administration to establish one. Most of the hottest U.S. states currently have no heat-specific standards either.

Instead, workers in many states who are exposed to extreme heat are ostensibly protected by what is known as the "general duty clause," which requires employers to mitigate hazards that could cause serious injury or death. The clause permits state authorities to inspect work sites for violations, and many do, but there are no consistent benchmarks for determining what constitutes a serious heat hazard.

"What's unsafe isn't always clear," said Juanita Constible, a senior advocate from the Natural Resources Defense Council who tracks extreme heat policy. "Without a specific heat standard, it makes it more challenging for regulators to decide, 'OK, this employer's breaking the law or not.'"

Many states are adopting their own versions of a federal "emphasis" program increasing inspections to ensure employers offer water, shade and breaks, but citations and enforcement still must go through the general duty clause.

Extreme heat is notably absent from the list of disasters to which the Federal Emergency Management Agency can respond. And while regional floodplain managers are common throughout the country, there are only three newly created "chief heat officer" positions to coordinate extreme heat planning, in Miami-Dade County, Phoenix and Los Angeles.

Federal experts have recommended extreme heat protections since 1972, but it wasn't until 1997 and 2006, respectively, that Minnesota and California adopted the first statewide protections. For a long time, those states were the exception, with only a scattering of others joining them throughout the early 2000s.

But as heat waves get longer and hotter, the tide is starting to change.

"There are a lot of positive movements that give me some hope," Keith said.

Colorado strengthened existing rules last year to require regular rest and meal breaks in extreme heat and cold and provide water and shade breaks when temperatures hit 80 degrees Fahrenheit (26.7 degrees Celsius). Washington state last month updated 15-year-old heat safety standards to lower the temperature at which cool-down breaks and other protections are required. Oregon, which adopted temporary heat protection rules in 2021, made them permanent last year.

Several other states are considering similar laws or regulations.

Arizona Gov. Katie Hobbs recently announced new regulations through the heat emphasis program and declared a state of emergency over extreme heat, allowing the state to reimburse various government entities for funds spent on providing relief from high temperatures.

Nevada also adopted a version of the heat emphasis program. But a separate bill that would define what constitutes extreme heat and require employers to provide protections ultimately failed in the final month of the legislative session.

The measure faltered even after the temperature threshold for those protections was increased from 95 degrees Fahrenheit (35 degrees Celsius) to 105 (40.5 degrees Celsius). Democratic lawmakers in Nevada are now trying to pass those protections through a regulatory process before next summer.

The Biden administration introduced new regulations in 2021 that would develop heat safety standards and strengthen required protective measures for most at-risk private sector workers, but the mandates are likely subject to several more years of review. A group of Democratic U.S. Congress members introduced a bill last month that would effectively speed up the process by legislating heat standards.

The guidelines would apply to all 50 states and include private sector and select federal workers, but leave most other public sector workers uncovered. Differing conditions across states and potential discrepancies in how the federal law would be implemented make consistent state standards crucial, Constible said.

For now, protections for those workers are largely at the discretion of individual employers.

Eleazar Castellanos, who trains workers on dealing with extreme heat at Arriba Las Vegas, a nonprofit supporting migrant and low-wage employees, said he experienced two types of employers during his 20 years of working construction.

"The first version is the employer that makes sure that their workers do have access to water, shade and rest," he said in Spanish through an interpreter. "And the second type of employer is the kind who threatens workers with consequences for asking for those kinds of preventative measures."

Heat protection laws have faced steady industry opposition, including chambers of commerce and other business associations. They say a blanket mandate would be too difficult to implement across such a wide range of industries.

"We are always concerned about a one-size-fits-all bill like this," Tray Abney, a lobbyist for the National Federation of Independent Businesses, told Nevada legislators.

Opinions vary on why the Nevada bill failed after passing the Senate on party lines. Some say it was a victim of partisan politics. Others say there were too many bills competing for attention in a session that meets for just four months every other year.

"It all comes down to the dollar," said Vince Saavedra, secretary-treasurer and lobbyist for Southern Nevada Building Trades. "But I'll challenge anybody to go work outside with any of these people, and then tell me that we don't need these regs."

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