These Are Your Rights At Work When It Is Dangerously Hot

Excessive heat has been the leading weather-related killer in America for 30 years. Heat stress killed 815 U.S. workers and seriously injured more than 70,000 from 1992 through 2017, according to the Bureau of Labor Statistics. Last summer, a farmworker in Oregon died while moving irrigation equipment on a day temperatures reached 104 degrees.

Getting sick because of heat is an unfortunately common risk. As of June 2021, more than half of farmworkers in Washington state said that they had experienced a symptom associated with heat illness while working, according to a survey by the United Farm Workers Foundation.

Agricultural and construction workers are among the most at risk for heat exposure on the job, but because of the climate crisis, dangerously hot days are becoming the new normal for more industries. Here’s what you need to know about your rights as a worker when it gets too hot:

You can refuse to do your job, but there is no federal standard for how hot is too hot to work.

The Occupational Safety and Health Administration, the federal agency tasked with protecting workers’ health, gives workers the right to refuse dangerous work if there’s a clear risk of death or serious physical harm. But if their employer fires them for it, workers have to win a retaliation case under the agency’s laws to be reinstated or win back wages.

When it comes to heat, experts say those laws are behind the curve.

Since 1972, the National Institute for Occupational Safety and Health has issued multiple reports recommending standards for occupational heat exposure. These recommendations include basic requirements such as employers having to produce a plan for gradually acclimating workers to the heat and giving workers access to water and rest breaks in a shaded or air-conditioned area.

OSHA, however, has not followed these recommendations and adopted a specific heat standard. Instead, when deciding whether to issue citations for safety violations, the agency relies on a general duty clause that states employers must provide workplaces “free from recognized hazards.”

But filing a complaint under OSHA’s general duty rule doesn’t necessarily mean anything will be done right away to address excessively hot conditions on the job. David Michaels, the head of OSHA during the Obama administration, told HuffPost that the agency generally relies on its general duty clause after someone becomes sick or dies due to heat. The process can involve waiting for a death certificate and an autopsy report and analyzing other proof that there was a recognized hazard.

“What that often means is that the citations are issued long after the heat has passed, so the citation has very little impact on other employers,” Michaels said.

Still, death or illness doesn’t have to be the only reason to file a complaint. “If workers are being forced to work in extreme heat with no rest breaks and the opportunity to get out of the heat, for me this is a violation of OSHA law,” Michaels said. “And OSHA could use the general duty clause even though no one has been hurt yet.”

But if OSHA had a heat standard, he said, the process could be done in days.

“This is not a complicated hazard. It’s not something where you need expensive personal protective equipment or some complex procedural way to limit the exposure,” said Jessica Martinez, co-executive director of the National Council for Occupational Safety and Health, a worker advocacy group. “It’s very basic. It’s rest, shade and water. We are in a position where we need that [heat standard] law in place, but it’s going to take some serious work.“

To try to speed OSHA along, Democratic members of Congress last spring introduced the Asuncion Valdivia Heat Illness and Fatality Prevention Act, which would set a two-year deadline for OSHA to set a heat standard and is named for a farm worker who died of heat stroke in 2004. It has not passed.

Currently only a few states, including Washington, Minnesota and California, have specific laws governing occupational heat exposure, but even those can vary. In California, workers must be allowed to have access to nearby shade when temperatures exceed 80 degrees Fahrenheit, while Washington does not have rest or shade requirements.

People can team up with their co-workers to demand changes such as more rest, A/C and water on high-heat days.

One of workers’ best options to protest working through excessive heat is to team up with co-workers. The National Labor Relations Act guarantees workers who qualify the right to engage in protected concerted activity, such as rallying for better working conditions. A group of colleagues working together to voice concern about a broken air conditioner or a lack of rest breaks in the heat will be more difficult for an employer to ignore than one person alone.

Take the example of Jack in the Box workers in Sacramento, California, who walked off the job last summer in protest over the heat in their restaurant. A group of employees filed a complaint because the air conditioner wasn’t working on a 109-degree day earlier in the month and still hadn’t been fixed properly.

Because OSHA can only retroactively assist people fired for refusing to work in dangerous conditions ― if they win their case, that is ― Martinez recommends that vulnerable workers in high-risk, low-wage jobs present their demands as a group to help protect against potential retaliation.

“Gather your co-workers and talk to your employers about what your demands are. ‘We want rest, we want shade, we want water,’” Martinez said, recommending people use OSHA’s educational materials as a resource for what they can ask for. Michaels also recommended OSHA’s heat index app that tracks associated risk levels specific to a user’s geographical location. He said that showing OSHA’s education materials, like the app, to an employer could also help bolster a potential OSHA case down the line.

For farmworkers, who have been historically excluded from the labor protections offered by the NLRA, learning to identify what heat illness looks like is key until more state and federal standards are in place.

“Making sure you’re keeping an eye on your co-workers, talking amongst each other as colleagues can even prevent heat illness. And, most importantly, take your breaks and if you feel sick, make sure you stop and rest,” said Leydy Rangel, communications manager for the United Farm Workers Foundation. “Other than that, the best way to protect farmworkers from heat illness across the U.S., really, is to make sure heat illness and prevention fatality standards are in place.”