Federal Heat Rule Proposed Following Texas Bill That Stripped Worker Protections

Construction in Austin in the heat (image via Getty Images)

Last Sept. 1, Gov. Greg Abbott’s “Death Star” law (House Bill 2127) made Austin’s historic rest-break ordinance void with its sweeping invalidation of local policy that overlaps with state law.

As climate change worsens extreme heat each summer, it becomes more and more dangerous to work outside, or inside un-air-conditioned warehouses. Heat kills an average of 38 workers a year nationwide, according to the U.S. Bureau of Labor Statistics. And those numbers are likely too low – Public Citizen found in 2022 that heat exposure causes around 600 to 2,000 deaths each year in the U.S., mostly in the construction and agriculture industries.

In response to this crisis, at a town hall with union leaders and workers June 20, U.S. Rep. Greg Casar (D-Austin) and Doug Parker, assistant secretary for the Occupational Safety and Health Administration (OSHA) announced that OSHA is on the precipice of unveiling a new federal standard that protects workers from extreme heat.

The rule is currently under expedited review within the U.S. Office of Management and Budget, after which it will be formally proposed and then undergo a public comment period. That’s expected to last at least a year. (For context, a recent rule that allowed an employee representative the right to accompany an OSHA officer during a compliance inspection had relatively few comments and took four months to review.)

Only three federal organizations – OSHA, the EPA, and the Consumer Financial Protection Bureau – are subject to an additional step in their rulemaking process: submitting to the Small Business Administration for input. OSHA has already cleared this hurdle and surprisingly received very little pushback from industry. The National Advisory Committee for Construction, Public Health and Safety voted unanimously to move “expeditiously” with the new rule. Washington, Minnesota, California, Oregon, and Colorado already have OSHA heat standards, and there is growing widespread acknowledgement that a national rule is needed.

Still, even without a formal rule, OSHA can hold employers to general safety standards. The agency is severely under-resourced – under Trump, hiring of OSHA inspectors stalled, and now there are only around 1,800 inspectors in the entire nation – but since 2022, state and federal OSHA inspectors have completed over 12,000 heat-related worksite inspections under a recent heat emphasis program.

The November election poses a looming risk to such a rule. During his term, Trump eliminated an Obama-era OSHA rule that required employers to report injury logs. That was reinstated by OSHA in 2023 – but it took the same arduous, years-long rulemaking process. An actual congressional law would not be so easily repealed – Casar says he has support from House Democrats, but that hinges on a new pro-worker speaker being instated. And even if a law were passed, Casar says it’s imperative that it be accompanied by anti-retaliation laws like the PRO Act – currently there is no penalty for employers that fire workers for organizing. So time is of the essence.

“My hope is that we can have that [heat rule] proposal this summer,” said Casar. “Then, I hope we still have a pro-worker president in office, that way it can be enforced quickly and we don’t go through another summer without it. That’s what we’re going to be pushing for, knowing there will be some major forces trying to stop us.” Meanwhile, a Houston lawsuit challenging the Death Star law won a ruling last summer that the statute is unconstitutional. Attorney General Ken Paxton has appealed the ruling, and the law remains in effect.