Most regulations from the Occupational Safety and Health Administration go unnoticed, but this one caught the public’s attention.
As the Northern Hemisphere suffered through another hottest summer on record, OSHA issued draft rules meant to protect workers from extreme heat.
The rules are three years in the making, so far, but are likely to stall out within days after January 20. Worker advocates expect the rule to be placed in cold storage once Donald Trump takes power.
“OSHA doesn’t have many friends on the Hill these days. Nobody goes to bat for them.”
It will be another example of how, in the face of hostile courts, ambivalence within their own party, and a rulemaking process designed to fail, Democratic administrations claiming the mantle of worker rights have fallen short on rebuilding worker power.
Time and again, said James Goodwin, policy director at the Center for Progressive Reform, sympathetic administrations have nonetheless taken years to issue new worker safety rules.
“OSHA is just such a politically reviled agency that you can hardly fault them for being just this cautious,” Goodwin said. “With unions being so weak, OSHA doesn’t have many friends on the Hill these days. Nobody goes to bat for them.”
Dying From Heat
Twenty years ago, a worker named Asunción Valdivia collapsed in a California field after more than 10 hours of picking grapes in the heat. His death later that day was a sign of things to come.
Reliable statistics are elusive, but dozens to perhaps hundreds or thousands of American workers die every year from exposure to excessive heat.
Aware that human-caused climate change is making the situation worse, the Biden administration followed state worker protection agencies in floating a heat protection rule in August 2021.
For employers in certain sectors such as construction, maritime, and agriculture, the rule would require employers to craft plans for extreme heat, including providing drinking water and break areas, and above a 90-degree heat index, mandatory rest breaks.
“If ever there was an OSHA rule to really capture the public’s attention, this is it.”
The rule had rare public appeal, Goodwin said. More and more people are aware of companies exposing workers to brutal temperatures — like the Amazon warehouse a decade ago that had a private ambulance on standby during a heat wave.
“If ever there was an OSHA rule to really capture the public’s attention, this is it,” he said. “We’re all familiar with these huge Amazon warehouses and stuff. It’s easy to appeal to the public’s moral imagination with this rule.”
The rule could protect the millions of workers in private industry who do not have protection at the state level. In creating the rule, however, the Biden administration had to follow a labyrinthine federal process.
“Record Time”
To put the regulation into effect, the Biden administration had to shepherd the rule through an advance notice of rulemaking, a comment period, a virtual stakeholder meeting, a working group, a small business review panel, and an advisory committee.
Some steps apply to all federal agencies, while others such as the small business panel have been applied only to agencies like OSHA that are particularly reviled by Republican-majority Congresses.
In the case of the heat rule, the process consumed nearly three years.
In July, OSHA published a more than 1,000-page draft version of the rule. Comments on the proposed rule are due by the end of December, which normally would lead to another round of public hearings before a final rule.
“They could probably have had a final rule out by 2026, if an administration was very focused on doing that,” said Rebecca Reindel, director of occupational safety and health for the labor federation AFL-CIO.
Instead, the U.S. is getting Trump. Most likely, the next administration will simply halt work on the heat rule, according to Jordan Barab, who served as the deputy assistant secretary of labor for OSHA under Barack Obama.
“The easiest thing and probably most likely thing to happen is they won’t work on it for four years,” Barab said.
Barab spoke before Trump announced his selection of Lori Chavez-DeRemer as the next secretary of labor, a position that oversees OSHA. The Republican representative from Oregon was one of the few Republicans in Congress to support efforts to make union organizing easier. Labor advocates believe she represents a wild card in the traditional Republican tendency to roll back worker safety rules, as Trump did in his first term.
Goodwin, however, said he expects little progress to be made on worker safety rules.
“Chavez-DeRemer — like every other Trump nominee — has been brought in to serve as a transmission belt for translating conservative ideology into on-the-ground reality — not to bring her independent judgment to bear,” Goodwin said in an email. “And that means the heat rule would go.”
Republican administrations have generally tried to slash OSHA’s budget even further below the current level, which hypothetically would allow OSHA to visit every workplace in the U.S. once every 186 years, according to the AFL-CIO.
The staffing declines hit not only inspections, but also the offices responsible for crafting new rules such as the heat exposure standard.
If a more worker-friendly administration takes power in 2029, it could take the heat rule off the shelf and continue work, Reindel said. If that happens, it would continue a pattern of major worker safety rules grinding through the process for at least two Democratic administrations.
One major rule, on silica dust, took 45 years to go into effect. Barab said that compared to other rules, the heat standard was actually proceeding quickly.
“Had we had another Democratic administration to work on it, it might have been finished a couple years from now,” Barab said. “So five years, to do a major standard like that would have been pretty much record time for OSHA these days.”
“I don’t know what the hell OSHA can do right now that would survive judicial review.”
Goodwin said he believes that Democratic administrations are cautious about passing OSHA rules too quickly because they could be tossed out by a judiciary increasingly hostile to worker rights on the slimmest pretext.
For that reason, he saw little reason for OSHA to try and pass a final heat exposure rule in the few weeks before Trump takes office.
“I don’t know what the hell OSHA can do right now that would survive judicial review, with this current judiciary,” Goodwin said. “Maybe there’s an argument to be made for just ‘flood the zone,’ but the huge disparity in advocacy power between those who are fighting on behalf of workers and those who are fighting on behalf of management, I am not sure that flooding the zone even works.”
Reforms Go Nowhere
The glacial progress on the heat rule took place against a larger backdrop of a Biden administration that was friendly toward labor unions, but failed to get some of their highest priorities through Congress.
Without unions, advocates say, workers are far less likely to report safety violations. Senate Democrats never fully coalesced around labor’s top goal, a bill that would have made organizing labor unions easier. That meant that while the bill passed the House when Democrats controlled the lower chamber in 2021, it never got past the Senate filibuster.
Another bill more narrowly targeted at improving OSHA’s ability to crack down on safety violations got less momentum than the organizing bill, even under a fully Democratic Congress.
Stymied at the federal level, workers have turned to labor agencies in Democratic states to protect them. Five states have passed rules guaranteeing workers to water, rest, and shade.
For the next four years, the states may be the only place where workers can find relief, Reindel said.
“Big business and corporate interests and billionaires have really pushed back on OSHA trying to protect workers and workplaces,” Reindel said. “We need to be very concerned about what that means for the state of this agency and for its ability to protect workers from dangerous working conditions.”