The Washington Post
More danger in a day’s work
As employees bake, industry groups fight new safeguards against heat
HOMESTEAD, FLA. — In the nearly two decades she has worked in South Florida’s plant nurseries, baking under greenhouse plastic covers, Sandra Ascencio has seen more than her share of misery.
Ascencio remembers seeing the body of a co-worker several years ago crumpled in the parking lot as paramedics tried to revive her. The woman struggled with asthma in hot weather and may have been trying to reach her air-conditioned car, Ascencio said.
In 2008, Ascencio collapsed while working at a different nursery. She said she suffered heatstroke, lost consciousness and spent a week in the hospital.
Today, she belongs to a growing group of immigrant laborers in South Florida pushing for what many health experts say is the best way to prevent heatstroke as temperatures reach new extremes: a law requiring employers to provide outdoor workers with drinking water, shade and rest breaks on hot days.
But as the need to keep workers safe from heat grows, many efforts to do so have failed. While places such as California and Washington have adopted workplace rules to address heat exposure, many other states’ attempts to mandate these protections have been blocked or weakened following opposition from industry groups representing agriculture, construction and other business interests, according to public records and those
involved in efforts to craft new rules. The Biden administration’s plan to draft heat rules for workers is likely to face similar resistance and legal challenges from the biggest companies.
In Nevada, where climate change is fueling hotter summers, state data shows workplace heat stress complaints nearly tripled from 2016 to 2021. But a heat safety regulation adopted by the state’s Occupational Safety and Health Administration is awaiting final approval from a panel of lawmakers, who have put off a vote for months. Victoria Carreon, an administrator at the Nevada Department of Business and Industry, said the agency is in talks with industry groups “concerned about the burdens on businesses of having to implement regulations.”
In hot and humid Virginia, the state’s workplace safety board voted against a proposal to adopt a heat illness prevention rule last year. At the time, its members were appointed by then- Gov. Ralph Northam, a Democrat. And workplace heat bills introduced in New York and Maine have been unsuccessful.
“A lot of states have been getting a tremendous amount of pushback,” said Juley Fulcher, a worker health advocate for the nonprofit Public Citizen, which has pushed for a national heat standard requiring employers to give workers water, shade and rest breaks. “There is this generic response you hear from business groups: ‘ We’re taking care of it.’ Others say it just needs to be really flexible — almost so flexible that it’s not a rule.”
A heat illness prevention bill has failed three times in Florida’s Republican-controlled legislature in recent years. This year, supporters were feeling hopeful after a Republican state senator from Miami-dade County agreed to sponsor the legislation, giving it bipartisan credibility. The Senate Agriculture Committee passed it in a unanimous vote in January. No one testified against it.
“It should have been a nobrainer,” said Karen Woodall, a longtime Florida lobbyist on behalf of social and economic justice issues.
But behind the scenes, trade associations representing some of the state’s largest companies with thousands of outdoor workers expressed concerns that the bill would expose them to lawsuits, Woodall said.
Florida lawmakers have previously supported heat safety legislation. In 2020, they passed a bill designed to prevent heatstroke in student-athletes. But when asked to extend protections to the state’s outdoor workers, many of whom are Latino immigrants from Central and South America, they let the bill die in committee.
Workers in the Southeast have long struggled with the region’s hot and humid summers, but in agricultural communities like Homestead, climate change is magnifying the health risks. A 2020 study by University of Washington and Stanford University researchers found that the average farmworker in the United States endures dangerous levels of heat 21 days per season. If the planet warms by 2 degrees Celsius (3.6 degrees Fahrenheit), the number of unsafe work days is expected to nearly double.
Rising temperatures are especially perilous for farm and construction workers, who have the highest heat-related fatality rates.
How many occupational heat deaths there are in the country is difficult to say. Bureau of Labor Statistics data shows that heat exposure kills an average of 40 workers annually — there were 56 fatalities in 2020, the most recent year for which data is available — and injures more than 3,000. But the government says its figures are “likely vast underestimates” because of underreporting.
It is not just Ascencio struggling in the heat. At a meeting last month of Wecount!, the Miami-Dade immigrant rights organization pushing for a statewide standard, other workers said they had also been sickened. José Delgado, 73, a white-haired man who harvests sweet potatoes, said he has been hospitalized with heatstroke twice in the past five years. Construction worker Andres Villegas, 57, said has seen men with heat illness fall from rooftops and ladders. He had his own close call a few years ago. Farmworkers, landscapers and nursery workers said their bosses don’t provide water or prohibit them from pausing their labor to take a drink, causing headaches, nausea and dizziness.
“We’re seeing temperatures above 100 degrees,” said Ascencio, 50. “We meet workers who tell us that their bosses don’t give them even 10- or 15-minute breaks.
They know it’s inhumane to work under those conditions, but they have to pay their bills.”
‘If we give them breaks, it costs us money’
Germany and Spain set maximum indoor temperatures for workplaces. China has measures to prevent heatstroke in indoor and outdoor workers. But there is no national heat standard in the United States.
The Biden administration is moving to protect workers from heat and has directed the Occupational Safety and Health Administration, part of the Labor Department, to issue a new rule. But it takes the agency an average of seven years to write new safety standards. The fate of a heat regulation could depend on the outcome of the 2024 presidential election.
That has left it to states. Four of them — California, Washington, Oregon and Minnesota — have broad workplace heat safety regulations. Each is slightly different: California and Washington’s rules apply to outdoor workers; Minnesota’s regulation protects only indoor workers; Oregon’s standard covers both. Colorado has a new heat rule that protects only farmworkers. Maryland passed a law two years ago requiring workplace safety officials to adopt a heat illness regulation by Oct. 1, but the state government still hasn’t released a draft.
While they wait for the federal government to act, worker advocates say preventing heat deaths relies on more states joining this small club. But the challenges are many.
In 2019, Virginia’s Safety and Health Codes Board voted unanimously to begin drafting a heat illness prevention rule. State officials assembled an advisory panel of worker advocates, industry representatives and safety experts. In interviews, six of the panel’s members said participants could not agree on whether a rule was even necessary.
Fulcher served on the panel and said the experience was deeply frustrating. One business representative’s comment so infuriated her that she wrote it down: “If we give them breaks, it costs us money.”
“My reaction was: ‘If you don’t give them breaks, they die, and that costs you money too,’ ” Fulcher said.
Hotter days mean not just more cases of heatstroke but also more accidents and injuries, which can drive up businesses’ insurance and legal costs. A study of California workers’ compensation injury reports found that the number of heat-related injuries declined after 2005, when the state enacted a heat safety rule for outdoor workers on days when temperatures top 95 degrees. Worker advocates took the findings as a positive sign that new regulations could help businesses adapt to global warming. But many industry groups were not swayed.
On the day of the Virginia board’s vote last December, representatives of the agriculture, construction, timber and shellfish industries lined up to oppose the proposed rule.
“It is an unreasonable and unnecessary standard,” said Brandon Robinson, CEO of the Associated General Contractors of Virginia, according to a recording of the session.
“Employees in Virginia are acclimated to their environment and are less impacted by higher temperatures,” said Conner Miller, of the Virginia Forest Products Association. The proposed rule “would be very disruptive.”
The board rejected the proposal by one vote.
Legal obstacles ahead
Across the country, industry leaders and lobbyists have made the same argument: States should put off writing their own rules until a national regulation takes effect. But business interests are working to create doubt about whether a national heat rule is needed — or even legal.
In comments to OSHA, business groups have said that the compliance costs would be extreme and that employers are already doing the right thing.
The American Farm Bureau Federation wrote to the agency, saying it should “partner with employers” on better training materials instead of pursuing a new rule.
The National Cotton Council wrote that many heat-related issues are not caused by farm work or poor management, “but instead result from the modern employee lifestyle in an advanced 21st century global economy.” The group pinned workers’ inability to withstand high temperatures on “present-day luxuries such as air-conditioning” and Americans’ “sedentary lifestyle.”
David Michaels, a professor at the George Washington University School of Public Health and a former OSHA administrator, said industry groups usually fight new federal health and safety standards. But opposition to a heat illness rule is likely to be especially fierce, he said, because it would affect so many sectors of the economy.
“There’s no question this will be expensive,” Michaels said, “but if we think that safe work is a right, then weighing out the cost shouldn’t be part of that calculus.”
In Oregon, trade organizations representing timber and manufacturing companies have filed a lawsuit to stop the state from enforcing new rules protecting workers from heat illness and wildfire smoke. The groups argue that the rules are too vague, too costly and amount to regulatory overreach.
To support this last claim, they appear to borrow from what was ultimately a winning argument before the U.S. Supreme Court, which in January stayed the implementation of the Biden administration’s vaccine-or-test mandate for large companies. The court’s conservative majority found that the coronavirus is not a workplace hazard, but a “universal risk” that is “no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
In their lawsuit, the industry groups argue that Oregon’s heat rule regulates “a societal hazard rather than an occupational hazard.” Worker advocates said they expect industry groups will use the same argument to attack a federal heat rule — and any future workplace protections related to climate change.
For Michael Wheelock, president of Grayback Forestry, a contract wildfire-fighting company headquartered in Southern Oregon, complying with the new heat rule has been “cumbersome.”
Wheelock said he has had to buy an ice machine and insulated coolers to keep drinking water cold enough. He also has to monitor the heat index and call the required number of rest breaks.
“There’s a lot of real good-intentioned regulations and I would put this in that category, but it’s pretty broad,” he said, adding, “I hope they modify it some.”
Water, shade and rest
Without more support from the Florida legislature, Wecount! organizers say their best chance to enact a heat safety law relies on a local campaign. If they can persuade a majority on the Miami-dade Board of County Commissioners to support their proposal, they can win new protections for the hundreds of thousands of outdoor workers in the county. It would be the first countywide heat standard in the country.
With plans to put a proposed ordinance before the board as soon as next month, the organization has ramped up its campaigning, deploying day laborers and farmworkers turned activists to knock on doors in nearby cities and worker camps.
On a recent Saturday afternoon, Andres Villegas looked down the sidewalk outside a busy commercial strip and saw a woman approaching. He stepped into her path. “Señora, how are you today?” Villegas asked, gently beginning the pitch he hoped would lead to a signature of support, or at least a conversation. But the woman walked away. “There’s heat all over the planet,” she called over her shoulder.
“Many people don’t understand that too much heat is dangerous,” said Villegas. He explained that he had recently seen a roofer fall from a considerable height on a job site. When Villegas reached the man, his co-workers were slapping his cheeks to revive him, playfully needling him for having tripped. But the fallen man didn’t recover until Villegas moved him to a shady spot and doused him with water, lowering his body temperature.
“In the countries these people came from, they and their families worked the land, they fished, they withstood the sun for generations. But the sun today is fiercer,” said Villegas, who emigrated from Mexico. “It’s a constant fight because many people aren’t paying attention.”
His lucked improved. A trio of men in dress shirts, stiff jeans and cowboy boots stopped. Two nodded intently and agreed to sign. They worked in nurseries, growing ornamental palms and trees under plastic tents that trap the heat. “The bosses don’t allow us time to drink water,” one man said, adding that he hides from his supervisors when he’s desperate for a water break.
The following evening, more than 90 workers packed the meeting room in the Wecount! office to hear how the group was going to change all of this. An hour went by as the organizers presented their strategy. The air grew warm and stale. Babies and young children fell asleep on their mothers’ laps.
When Villegas’s turn came, he looked past the weary faces and snickering teenagers in the back. “We are the pioneers of this campaign — and we are growing,” he bellowed into a microphone. “We can’t beg the government, or the politicians, to help us. We have to say it’s their obligation. And we aren’t doing this for a few hundred people, we are doing it for thousands.”
The workers erupted in applause. He and the other canvassers had collected more than 1,000 signatures over the summer, repeating the slogan “water, shade, and rest” until their children knew it by heart. But very few of the people who signed in support could vote — the movement’s strength was not in its power at the ballot box, but in the number of fed-up workers who stood behind it.
Would that be enough? They would soon find out. September was only a month away.