Coalition support letter for the Asuncion Valdivia Heat Illness and Fatality Prevention Act (S.4781)
The Honorable Kamala Harris
112 Hart Senate Office Building
Washington, DC 20510
The Honorable Sherrod Brown
503 Hart Senate Office Building
Washington, DC 20510
October 8, 2020
Dear Senator Harris and Senator Brown:
We, the undersigned organizations, write to express our support for introduction of the Asuncion Valdivia Heat Illness and Fatality Prevention Act (S.4781), legislation that directs the Occupational Safety and Health Administration (OSHA) to issue a standard on the prevention of excessive heat in the workplace for outdoor and indoor workers. We are part of a nationwide network that is raising awareness around the dangers of the climate crisis on workers, by advocating for occupational heat protections. We appreciate your leadership on this bill, in partnership with Senators Tammy Baldwin, Jeff Merkley and Elizabeth Warren.
Heat is the leading weather-related killer, and it is becoming more dangerous, as 19 of the last 20 years were the hottest on record. The summer of 2020 saw new heat records set throughout the nation for both record high temperatures and record number of days at extreme high temperatures, including the hottest recorded temperature on the planet in more than a century, set on August 16th in Death Valley, Calif. Excessive heat can cause heat stroke and even death if not treated properly. It also exacerbates existing health problems like asthma, kidney failure, and heart disease. Workers in agriculture and construction are at highest risk, but the problem affects all workers exposed to heat, including indoor workers without climate-controlled environments. This threat is projected to intensify with global heating, yet, the U.S. does not have a federal heat stress standard for workers.
It is important to understand the racial injustice in workplace heat hazard risks. Essential jobs that experience the highest rates of heat illness are disproportionately held by Black and Brown workers. For example, while Latinx workers make up 17.6% of the entire workforce, they make up 65% of farm laborers, graders, and sorters, and farmworkers die from heat stress at a rate 20 times greater than the rest of the U.S. workforce. More than 70% of laborers and freight, stock, and materials movers are Black and Brown, as are more than 55% of those working in warehouses and storage. While Black Americans only make up 12.3% of the total workforce, they make up 27% of postal workers and 23% of UPS drivers. They also make up almost 20% of refuse and recyclable materials collectors nationally and account for well over half the collectors in many areas of the country. Grounds maintenance workers are nearly 44% Latinx, while painters, construction and maintenance workers are 55.5% Latinx.
The COVID-19 pandemic both compounds heat stress and has disproportionately harmed Black and Brown communities. Workers susceptible to heat-related illness and death have some of the highest rates of coronavirus infection, especially agricultural workers. Hot temperatures make wearing essential personal protection equipment (PPE) like cloth masks and respirators uncomfortable, and they contribute to heat stress, an issue that requires a reasoned balance of risks and mitigation standards.
When coupled with dehydration, heat stress can cause depressed kidney function and even chronic kidney disease, conditions that increase the risk of severe illness from COVID-19. Fever and depressed respiratory and kidney functions associated with COVID-19 may increase susceptibility to heat stress. It can be very difficult to distinguish between heat illness and COVID-19 because they share common symptoms, including high body temperature, muscle pain, fatigue, difficulty breathing, nausea, vomiting, confusion and loss of consciousness. The signs and symptoms of heat stress and COVID-19 may confuse efficient diagnosis of both, and more importantly may interact to yield acute illness that is especially deadly.
The National Institute for Occupational Safety and Health (NIOSH) issued criteria for a heat standard in 1972, updating it in 1986 and 2016. However, OSHA has failed to adopt a heat standard. In 2018, more than 130 organizations and former OSHA administrators petitioned OSHA for a heat stress standard that builds upon the NIOSH criteria. At the time of this bill’s introduction, OSHA has yet to issue a formal response to the petition. Meanwhile, California, Washington, Minnesota and the U.S. military have issued heat protections. Absent a federal standard, OSHA currently polices heat-related injuries and deaths only by enforcing its “catch all” general duty clause that requires employers to ensure that their workplaces are “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Enforcement is scarce and, by definition, reactive rather than preventive. Notably, from 2013 through 2017, California used its heat standard to conduct 50 times more inspections resulting in a heat-related violation than OSHA did nationwide under the general duty clause.
The Occupational Safety and Health Review Commission, an independent federal agency created to adjudicate appeals of OSHA citations and penalties, has held that the general duty clause places a high burden on OSHA to demonstrate that the employer failed to provide safe workplaces. On July 15, 2020, the Commission handed down decisions in five cases that virtually guarantee that workers will not be protected from heat stress under the general duty clause. OSHA had issued citations against the U.S. Postal Service for exposing its employees “to recognized hazards of working outside during periods of excessive heat.” In all five cases, the Commission vacated the citations because OSHA made no attempt to defend the validity of NIOSH heat stress guidelines that define what constitutes dangerous levels of heat and, when asked, would not give any temperature ranges it believes constitute excessive heat.
The Commission went out of its way to point out that its findings did not necessarily mean that excessive heat didn’t exist in the cases, but rather there were no clear OSHA standards. The Commission went on to say that the lack of a binding OSHA standard on heat stress also made it extremely difficult to make sure employers can recognize the hazard. These Commission findings demonstrate the difficulty in holding employers accountable for failure to protect workers from heat hazards under OSHA’s general duty safety requirement and the critical need for an OSHA heat stress standard.
Protecting workers from heat also has economic benefits. In high heat, people work less effectively due to “diminished ability for physical exertion and for completing mental tasks,” which reduces productivity, increases the risk of accidents, and drives up medical expenses. Employers in the U.S. spend $220 billion every year on injuries and illnesses related to excessive heat. The costs of lower labor productivity under rising temperatures is estimated to reach up to $160 billion in lost wages per year in the U.S. by 2090 according to the 2018 National Climate Assessment. These impacts can be mitigated by heat protections. For instance, in 2011 a central Texas municipality implemented a heat illness prevention program for outdoor municipal workers that not only resulted in a significant decrease in heat-related illnesses, but a decrease in worker’s compensation costs by 50% per heat-related illness.
The Asuncion Valdivia Heat Illness and Fatality Prevention Act is named after a farmworker who died of a heat stroke in 2004, after picking grapes for 10 hours straight in 105-degree temperatures. Unfortunately, Mr. Valdivia’s tragic story is not unique, and yet heat-related fatalities, injuries and illnesses are completely preventable. This bill will direct OSHA to develop a heat stress standard for indoor and outdoor workers to prevent further heat-related tragedies. Specifically, it will require employers to develop a heat-illness prevention plan that includes the following commonsense requirements:
- Develop and implement the standard with meaningful participation of covered employees, and their representatives when applicable, and tailor it to the specific hazards of the workplace;
- Ensure it is written in a language understood by the majority of the employees;
- Ensure that workers who are exposed to high heat receive paid breaks in cool environments, access to water for hydration, and not be continually subjected to extreme heat beyond specified time limits.
- Create emergency response procedures for employees suffering from heat illness;
- Provide training for employers and employees on heat stress illness and prevention;
- Include acclimatization plans to ensure workers can adjust to their working conditions;
- Ensure engineering and administrative controls are used to limit heat exposure, i.e., ventilation and/or protective clothing;
- Maintain records on heat-related illnesses and deaths, and other heat data; and
- Refrain from retaliating against a covered employee for reporting violations of this standard or exercising any other rights under this bill.
We look forward to working with your offices and the Committee to advance this vital health and safety measure to protect workers from extreme heat and the climate crisis.
Academic Health Resource
Alabama State Association of Cooperatives
Alianza Nacional de Campesinas
American College of Occupational and Environmental Medicine, Section on Underserved Occupational Populations
American Indian Mothers Inc
Association of Farmworker Opportunity Programs
Association of Occupational and Environmental Clinics
Catholic Labor Network
Center for Biological Diversity
Center for Progressive Reform
Central Florida Jobs with Justice
Centro de los Derechos del Migrante, Inc.
Child Labor Coalition
Climate for Health, ecoAmerica
Climate Jobs PDX
Communications Workers of America
Doctors for Camp Closure– Oregon Chapter
Earth Action, Inc.
Ellen Widess, former Chief of Cal/OSHA
Episcopal Farmworker Ministry
Farmworker and Landscaper Advocacy Project-FLAP
Farmworker Association of Florida
Florida People’s Advocacy Center
Food & Water Action
Food Chain Workers Alliance
HEAL (Health Environment Agriculture Labor) Food Alliance
Human Rights Watch
Institute for Agriculture and Trade Policy
Int’l Safety Equipment Assn
Interfaith Worker Justice
International Brotherhood of Teamsters
International Union, UAW
Justice for Migrant Women
Korey Stringer Institute
Legal Aid Justice Center
Migrant Clinicians Network
Mississippi Workers’ Center for Human Rights
National Consumers League
National Council for Occupational Safety & Health
National Employment Law Project
National Farm Worker Ministry
Natural Resources Defense Council
National Young Farmers Coalition
Northeast Sustainable Agriculture Working Group
NW Workers’ Justice Project
Oklahoma Black Historical Research Project, Inc.
Oregon Climate and Agriculture Network
Oregon Environmental Council
Oregon League of Conservation Voters
Oregon Physicians for Social Responsibility
PDA – Tucson Arizona Chapter
Physicians for Social Responsibility
Physicians for Social Responsibility – TN Chapter
Progressive Democrats of America
Rural Advancement Fund
South Florida Council on Occupational Safety & Health
South Florida Interfaith Worker Justice
Southern Oregon Climate Action Now
Student Action with Farmworkers
The CLEO Institute
Toxic Free NC
TWU Local 591
Union of Concerned Scientists
UNITE HERE! International Union
United Steelworkers (USW)
Virginia Clinicians for Climate Action
Women’s Voices for the Earth
cc: Members of the Senate Health, Education, Labor and Pensions Committee
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