Challenging The Opposition’s Arguments

Years of data show that heat standards with mandatory preventive measures effectively keep workers safe from heat.

• Studies have found that the risk of heat illnesses and fatalities rises substantially on days when the heat index is above 80 degrees Fahrenheit. Preventative standards specify actions that employers must take at one or more specified temperature triggers to protect workers from heat-related illnesses.
• A recent study found that when temperatures rise occupational injuries of all types increase. Researchers also found that states with preventative enforceable heat standards in place had a 50 percent lower chance of injuries attributable to heat than those without standards. 
• Another analysis found that once California’s heat standard was fully implemented and enforced, heat-related deaths were reduced by as much as 51 percent. 
• A study of workers’ compensation claims in California found that claims diminished by 30 percent after the state’s heat protection rule went into effect.
• In Oregon, examination of heat-related emergency room visits found that after implementation of that state’s occupational heat protection rule, the proportion of visits attributable to heat-related illnesses dropped from an average of 9.3 percent to 6.7 percent.

Nevada’s non-preventative heat regulation does not meet the obligations of Occupational Safety and Health (OSH) agencies to ensure workers are protected from heat hazards.

The heat standards in place in Washington, Oregon, California, Colorado, Minnesota, and Maryland use scientific evidence to establish the temperature at which risks of heat-related illness and injuries become significant and require employers to implement best practices to prevent those illnesses. The Nevada model, which directs employers to address heat in pre-existing workplace safety plans, relies on subjective determinations made by each employer: which jobs come with heat risks, when to provide water or cooling breaks, and what to include in worker and supervisor training.

This lack of specificity makes it difficult for inspectors to identify inadequate employer practices, or even intentional disregard for the standard. Employees who believe their workplace is hazardous are compelled to make equally subjective decisions to make a claim to the OSH agency.

• The Nevada regulation has no triggers at which preventive water, shade, and rest must be implemented. As Jordan Barab, the former deputy assistant secretary of OSHA, has asked, “How do you find out if [the employer’s policy is] not enough to keep people safe? The only way you figure that out with that kind of standard is if someone gets sick or dies.”
• The New York State Attorney General’s office noted that under the Nevada model rest breaks are called for only after workers feel ill. “Without objective metrics to measure compliance, Nevada officials will likely only enforce the standard after a worker falls ill or dies from occupational heat exposure.”
• Uncertainty is a problem for all parties. When Oregon’s OSH solicited comments in revising their state heat protection standard, “employers, worker advocates, and workers alike sought clarification to many sections of the rules but especially ones where there were no specifications as to how to implement changes.”

A preventative heat standard requires enough specificity to ensure employers, workers, and inspectors know how to comply.

While business lobbyists call Nevada’s regulation a performance-based standard, it does not truly meet the definition for this model of standard. Under the OSH Act, performance-based health outcomes are based upon objective criteria and outcomes determined by OSHA. The employer develops policies and procedures to achieve those elements. These types of standards tend to include detailed examples and lists for employers to use in ensuring compliance as well as extensive reporting requirements. Nevada’s regulation does not include those elements.

Furthermore, we already have an example of how a subjective heat standard failed to protect workers and needed to be revised to be effective.

• As Washington’s OSH agency explained about its original heat standard, “In developing the 2008 permanent rules, [Labor and Industries] determined identifying specific trigger temperatures was the least burdensome alternative, reducing costs by ensuring clarity on when the rule requirements were in effect.”
• However, Washington’s early iteration of a heat standard did not include preventive measures that had to go into effect when those thresholds were met. Officials from Washington’s OSH agency stated that they later had to update the rule to include this level of specificity because, “without clarity on what heat and what temperature employees need to be protected from…performance-based rules are not going to be preventative enough of employees.”
• While the standards in place in California, Oregon, Washington, and Maryland include mandatory actions at defined temperature triggers, they acknowledge distinctions between workplaces by including flexible options to achieve compliance such as multiple options for shade structures, flexibility in communications protocols, and several options for acclimatizing employees to hot working conditions. 

Lack of clarity in an occupational heat standard may incur increased costs for employers and enforcement agencies.

• Conscientious employers may be at a competitive disadvantage for taking heat safety seriously. A panel of regulators and researchers convened to discuss performance-based regulations noted that many employers would need to hire experts to help design and document compliance with non-prescriptive standards, imposing excessive costs on small businesses.
• In comments to federal OSHA, the New York State Attorney General’s office noted, “[T]he Nevada standard’s lack of a temperature threshold, rather than promoting compliance flexibility, imposes additional burdens on employers by forcing them to make potentially life-or-death determinations about how to evaluate their employees’ susceptibility to occupational heat illness—or by forcing them to hire workplace safety consultants—which will be especially burdensome for small businesses.”
• When employers are unclear about what constitutes compliance, they may opt to challenge findings, penalties, and fines after an OSHA inspection at a greater rate than those resulting from more specific rules. As a result, an OSH agency may find it needs to dedicate increased resources to review case files, develop materials to present in legal proceedings, conduct special analysis, or pay for expert witnesses, court reporters, or other litigation support to respond to administrative and legal challenges.

Worker safety needs to be consistent across worksites and should not rely on the subjective determination of employers.

Federal OSHA assures workers that, “Federal law entitles you to a safe workplace. Your employer must keep your workplace free of known health and safety hazards.” States with their own OSH plans are required to be at least as effective as the federal system. Protections from occupational heat must be consistent across workplaces and for all workers who might be exposed to hazards in any given workplace.

• The Nevada regulation requires employers to conduct a job hazard analysis and produce a written safety program only when most of the employees in a classification have a significant exposure to heat. Even if 49 percent of workers risk heat exposure, the entire classification can be excluded from heat-related programs. Furthermore, the content of the safety plan is at the discretion of the employer, so that protections for workers in the same industry in the same temperature conditions may vary wildly in efficacy.