Emergency Power in Focus: An Urgent Need to Address Deadly Workplace Heat Exposure

This summer, temperatures have reached historic highs. Phoenix has seen 110 degrees Fahrenheit or higher for 26 consecutive days and counting. Coastal waters off Florida sizzled at a record-breaking 101 degrees.

For many workers, extreme heat presents a difficult choice between getting paid and risking hazardous work conditions. Heat is the leading weather-related killer, but historically, it has not been treated as an emergency under federal law. With heat waves forecast to continue, governments at all levels need to seriously consider the use of emergency powers to address hazardous heat in workplaces.

Extreme heat exposure can cause exhaustion, muscle breakdown, kidney injury, and even death. It can exacerbate diabetes and heart disease. Extreme heat also worsens air quality, especially in environmental justice communities that are already overburdened by air pollution. Heat is particularly dangerous when combined with particulate matter from wildfire smoke.

The impacts of occupational heat exposure are not borne equally. The National Family Farm Coalition has noted that “[w]orkers identifying as Black, Hispanic, or Latino experience disproportionately high rates of occupational heat-related illnesses…[and] non-U.S. citizens are more likely to die on the job because of extreme heat exposure.”

These disparities particularly affect essential workers such as farmworkers, construction workers, delivery and warehouse workers, and food service workers. Systemic inequalities contribute to the problem. Workers facing acute occupational heat exposure often lack adequate access to healthcare. Urban heat islands, which disproportionately affect Black and Brown communities, can further exacerbate heat exposure for both indoor and outdoor workers in urban settings. Many essential workers lack air conditioning at home to mitigate daytime heat impacts.

There is currently no federal standard for occupational heat exposure, although workers’ rights advocates and community groups have long advocated for one. Recognizing the dangerous effects of heat, in 2021, the federal Occupational Safety and Health Administration (OSHA) announced that it would begin considering a federal standard. The agency has yet to share proposed rule language.

On February 9 of this year, a coalition of seven attorneys general, led by New York Attorney General Letitia James, filed a petition urging OSHA to issue an Emergency Temporary Standard for occupational heat exposure to take effect this summer, pending OSHA’s permanent rulemaking. The AGs argued that extreme workplace heat poses a grave danger to tens of millions of workers and that immediate action is needed because OSHA’s rulemaking process can take up to 10 years to complete.

On April 17, OSHA denied the AGs’ petition, citing the legal challenges it had faced in the past in promulgating temporary emergency standards. For example, the agency cited National Federation of Independent Business v. OSHA, in which the U.S. Supreme Court stayed OSHA’s enforcement of an emergency standard covering COVID-19 vaccination and testing requirements for private employers. Then last month in Biden v. Nebraska, the Supreme Court issued a blow to another agency’s exercise of emergency power, striking down a Department of Education program forgiving student loan debt in response to the COVID-19 emergency.

Then in a press release issued today, President Biden announced the first-ever Hazard Alert for heat and asked the Department of Labor to “ramp up enforcement to protect workers from extreme heat.” What this will mean without an existing federal occupational heat standard remains to be seen.

Some states have stepped up to fill gaps in OSHA’s absence, including notable initiatives by California, Colorado, Minnesota, Oregon, and Washington. These state standards have largely proven to be straightforward and workable, including such common-sense measures as rest, shade, water, and gradual acclimatization to the heat. Declarations of a “climate emergency” have also begun at the state level, led by Hawaii, and joined by more than 190 local jurisdictions in the United States, including New York City.

On the other end of the spectrum, Governor Abbott of Texas signed a law last month preempting local ordinances on a range of worker protection issues, including local mandates in Austin and Dallas requiring water breaks for construction workers. In the very same month, at least 13 people died from heat-related illness in Texas, including at least one construction worker.

Federal action is needed to prevent further deaths. This week, Representative Greg Casar (D-Texas) went on an all-day “thirst strike” on the steps of the Capitol to call for a federal occupational heat standard, and led more than 100 members of Congress in filing a letter on Monday urging OSHA to move toward the “fastest implementation possible” to protect workers amidst the record-breaking heat.

For a challenge as consequential as the changing climate, governments at all levels need to mobilize and coordinate their response. The COVID-19 emergency illustrated that piecemeal action by state governments is not equivalent to strong federal leadership when faced with a problem on a national scale.

OSHA’s denial of the AG petition to issue an emergency heat standard illustrates the vital need to examine federal emergency powers and consider how they can be used to respond to the climate crisis. David Hayes, former Executive Director of the State Impact Center who served as Special Assistant to the President for Climate Policy, recently offered a series of proposals in a report published by Harvard’s Belfer Center on how the federal government can improve its emergency response to slower-developing climate challenges like droughts, extreme heat, and wildfires, including suggestions for how to implement a unified federal emergency response.

Now is the time to apply lessons learned from the pandemic to ensure that climate emergency responses are timely, effective, and aligned with environmental justice, democratic governance, and human rights principles. Emergency responses must also center the lived experiences of those suffering the most harm. Meanwhile, this summer will continue to test governmental power to respond to immediate climate hazards that disproportionately affect environmental justice communities and marginalized peoples.