First Heat Protection Standards for Workers Proposed by Biden Administration

President Joe Biden’s administration unveiled its long-awaited proposal to protect workers from extreme heat at what might appear to be an appropriate time—amid a record-hot summer with millions of Americans sweltering under heat advisories.

But the Occupational Health and Safety Administration proposed the nation’s first heat injury and illness protection standards on the heels of Supreme Court decisions that sharply limit the power of federal regulatory agencies. And the worker protection proposal—which Biden had promised during his first months in office—is coming so late in his first term that it is unlikely to be finalized by the end of the year.

That means the plan could be stopped in its tracks if former president Donald Trump is elected in November. And even if Biden should gain a second term, the heat rule will be vulnerable to legal challenges by businesses or Republican-led states. 

The issue of heat protection for workers has become yet another politically polarizing issue in the United States, even as 2,300 Americans died of heat-related illness in 2023, the highest number in the 45 years that records have been kept, according to an analysis by The Associated Press.

Heat is the leading cause of weather-related deaths, OSHA officials said. Research in just the past year has greatly expanded what is known about heat hazards. The proposed rule would require employers to develop injury and illness prevention plans in workplaces affected by excessive heat. An estimated 36 million U.S. workers would be covered, from farmworkers, delivery and construction workers to indoor workers in warehouses, factories and kitchens. Among the requirements: drinking water availability, rest breaks and control of indoor heat.

“Workers all over the country are passing out, suffering heat stroke and dying from heat exposure from just doing their jobs, and something must be done to protect them,” Doug Parker, assistant secretary of labor for occupational safety and health, said in a statement. “Today’s proposal is an important next step in the process to receive public input to craft a ‘win-win’ final rule that protects workers while being practical and workable for employers.”

But OSHA heard from many businesses opposed to new standards when it first sought public comment earlier in the Biden administration. “Our members have found … it is extraordinarily difficult for them to determine when heat presents a hazard because each employee experiences heat differently,” Marc Freedman, vice president of the workplace policy division of the U.S. Chamber of Commerce, wrote in 2022 comments to the agency. He said that risk levels depend on individual factors outside the control of employers—such as age, obesity and underlying health conditions like diabetes.

And in a preview of what could be a future legal challenge to the OSHA standard, Freedman noted that the agency’s governing law requires that it show that any such standards are “reasonably necessary or appropriate” as well as feasible. “With regard to heat, there is a lack of well-regarded criteria on when OSHA and employers can determine a significant risk is present,” Freedman wrote.

Last Friday, the Supreme Court, overturning a 40-year-old precedent, ruled that judges should no longer honor “reasonable” federal agency interpretations of the law when they decide challenges to such rules. Much of Biden’s climate policy already is facing legal challenges.

And in an indication of how politically charged the issue of worker heat protection is, Florida’s Republican-led Legislature and Gov. Ron DeSantis earlier this year banned local governments from establishing heat protections for outdoor workers.

Environmental and worker advocates praised the OSHA announcement, at the same time acknowledging the political and legal fights ahead.

Sara Chieffo, vice president of government affairs at the League of Conservation Voters, called the measures “a critical step to help workers and communities” and “an essential part of responding to the threats posed by the climate crisis.” But she added in a statement, “MAGA Republicans have time and time again sided with Big Polluters and actively attempted to reverse the climate progress made by the Biden Administration, despite knowing the real threats excessive pollution has on our communities, families, and climate.”