WV industry opposes OSHA heat rule proposal advocates call vital for worker health

A U.S. Postal Service worker became dehydrated and started vomiting while delivering mail on foot in Morgantown.

These were three of 17 incidents with exposure to environmental heat leading to inpatient hospitalizations in West Virginia from 2015 through 2024 reported from establishments covered by the federal Occupational Safety and Health Administration.

That’s likely an undercount given that the OSHA data, obtained by the Gazette-Mail, comes only via reports from OSHA-covered employers of work-related injuries and illnesses that resulted in an in-patient hospitalization, amputation or eye loss.

Heat is the leading cause of death among all hazardous weather conditions in the United States. There were 33,890 estimated work-related heat injuries and illnesses that resulted in days away from work from 2011 through 2020, per the OSHA, an average of 3,389 per year.

Global warming has meant increasingly oppressive swelters for West Virginia. Meanwhile, work in all temperatures has become more deadly in the state, suggesting greater workplace peril for its workers amid the rising heat.

West Virginia had the nation’s second-highest occupational injury rate in 2023, lower only than Wyoming. West Virginia’s work injury rate climbed 60% from 2014 to 2023, a span in which 30 states’ rates decreased.

But OSHA has no federal standard that requires employers to create a plan to evaluate and control heat hazards in their workplace.

“The fact that OSHA has no heat exposure standard has meant that many employers make little or no effort to protect workers from dangerous exposures,” said David Michaels, a George Washington University Milken Institute School of Public Health epidemiologist and environmental and occupational health professor. “They don't have an effective rulebook to follow. As a result, many many workers have been sickened and some killed by extreme heat.”

Michaels, who was OSHA assistant secretary of labor from 2009 to 2017, was speaking during a June 27 hearing OSHA held on its proposal to institute a new rule setting mandates for employers to guard against heat-related health risks and hazards for indoor and outdoor work.

Throughout a hearing schedule that lasted more than two weeks in June and July — as a heat wave dealt daily 90-plus-degree temperature highs to West Virginia — Michaels and other occupational health advocates agreed with the OSHA determination that heat poses a significant risk of impairment to U.S. workers.

“Not only is it a serious and deadly hazard to workers, and we agree with your risk assessment, but it's preventable,” Debbie Berkowitz, OSHA chief of staff and senior policy advisor from 2009 to 2015, said during the June 27 hearing. “These deaths are preventable.”

Sarah Wilme of Students for Science, a health science policy student researcher collective, told OSHA representatives during the hearing on July 2 that she suffered heatstroke on an 84-degree day during a marine trades apprenticeship when she was 21. She was not climatized to her work on a boat in the sun even after starting work three hours earlier than usual to avoid the worst of the heat that day. Wilme said she had to take unpaid days off for nausea from heat stress and now works a seasonal, physical labor job that discourages breaks when working in the sun.

OSHA received a note of support in November on the rule proposal, which it unveiled in August, from an anonymous commenter who alleged they worked in an 80-degree-plus unspecified office as a West Virginia state employee in the summer of 2024.

“I do not know what the requirements will be, but I do not feel as though 82 degree[s] inside a state building is acceptable,” the commenter wrote. “Employers need to be held accountable and treat employees as if they actually cared about them and their health.”

But West Virginia industry leaders are opposed to the pending OSHA rule proposal, arguing that it would be a counterproductive, overly rigid regulatory burden.

The Gas and Oil Association of West Virginia, Inc. filed a comment with OSHA in January alleging its rule proposal “overreaches and imposes more stringent restrictions on employers that necessary to achieve its objectives of worker safety” and that its heat thresholds were “arbitrary and capricious” for being uniform across all states.

“Simply put, a ‘one-size-fits-all’ approach to this standard will hamper production and not address the issue that OSHA seeks to do,” West Virginia Manufacturers Association President Bill Bissett told the Gazette-Mail.

Rule projected to cover 36 million workers 

The proposed standard would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime and agriculture sectors where OSHA has jurisdiction. OSHA predicts it would cover roughly 36 million workers — about one-third of total U.S. full-time workers.

The proposal would require employers to:

• Develop and implement a work site heat injury and illness prevention plan with site-specific information to evaluate and control heat hazards in their workplace
• Identify heat hazards in both outdoor and indoor work sites
• Implement control measures at or above an initial and high heat triggers of 80 and 90 degrees, respectively, or a measure of heat stress in direct sunlight equal to a National Institute of Occupational Safety and Health recommended action limit

For the initial heat trigger, required control measures would include:

• Cool drinking water
• Break areas with cooling measures
• Indoor work area controls
• Paid rest breaks if needed to prevent overheating

For the high heat trigger, required control measures would include:

• Mandatory rest breaks of 15 minutes at least every two hours
• Observation for signs and symptoms of heat-related illness
• A hazard alert to remind employees of key parts of their work site’s heat injury and illness prevention plan

OSHA has proposed to exclude short duration employee exposures to heat, emergency response activities, telework, work at indoor sites kept below 80 degrees and indoor sedentary work activities from the rule.

'A one-size-fits-all mandate'

Earth’s average surface temperature in 2024 was the warmest on record, according to an analysis led by NASA scientists. The new record comes after 15 consecutive months, June 2023 through August 2024, of monthly temperature records — a heat streak without precedent.

“I ask OSHA, the Labor department and the White House to remember that this summer is likely to be the coolest summer for the rest of our lives,” Michaels said.

Bissett asserted that the West Virginia Manufacturers Association’s members already use practices designed to avoid and minimize heat-related injuries to their workers.

Bissett said his industry group would like OSHA to consider regional and geographical differences and give “flexibility to manufacturers to tailor safety operations to meet the needs of their unique businesses and consider regional and geographical differences.”

Contractors Association of West Virginia CEO Jason Pizatella said his group’s members have long implemented measures like providing shade, breaks, hydration and acclimatization protocols to protect against heat-related illness.

Pizatella indicated the Contractors Association supports a “less prescriptive and a more performance-based approach,” citing what he called a constantly evolving construction industry work environment.

Like Bissett and other industry representatives, Pizatella said OSHA should avoid “a one-size-fits-all mandate.”

Argument for 'one-size-fits-all' being 'a good thing'

But occupational safety and health experts say the proposed standard consistency across geographies should be embraced, not discarded.

“[I]t is true that this is a one-size-fits-all standard, and that's a good thing because all humans are basically the same,” Jordan Barab, OSHA deputy assistant secretary from 2009 to 2017, told OSHA representatives during the June 27 hearing. “High heat can kill anyone, young, old, in the south or in the north.”

Michaels predicted that under a less uniform standard, every employer would have to take on the roles of meteorologist, physician and industrial hygienist to determine how to protect workers from heat illness in each situation.

“This is difficult for large businesses and impossible for small ones,” Michaels said.

Without a specific temperature trigger, heat safeguards will only be prompted when an employer thinks their workers might be danger — meaning water, rest and shade that could be critical in an emergency could come only at the subjective approval of the employer when it’s already too late, Berkowitz contended.

“This could leave workers with less protection than they have now with no standard,” Berkowitz said.

Berkowitz said that in 40 years of working in occupational safety and health, she hasn’t known any workers who can take a break when they choose in agriculture, construction, restaurants, sanitation and other industries in which heat can be a health hazard.

Barab said workers may understand how much water, rest and climatization they need but mostly have no control over how much they get. So while training is essential, Barab argued, it’s essentially worthless without requirements that force employers to implement safeguards in response to heat illness factors.

“It’s not sufficient to really solve the problem,” Barab said.

W.Va. political leaders quiet on the rule proposal

Spokespeople for Sen. Jim Justice, Rep. Carol Miller and Rep. Riley Moore, all R-W.Va., did not respond to requests for comment on their views on the OSHA heat rule proposal. A spokesperson for Senate Environment and Public Works Committee Chairman Shelley Moore Capito, R-W.Va., did not provide comment.

Gov. Patrick Morrisey spokesperson Ann Moore gave a noncommittal response on Morrisey’s behalf that nonetheless echoed industry leaders’ calls for flexibility.

“Governor Morrisey supports efforts to protect workers from heat-related illnesses and injuries on the job. West Virginia’s workers deserve safe working conditions, and our businesses deserve clear, flexible guidelines for achieving that safety,” Moore said in an emailed statement.

West Virginia is not among the seven states, which include neighbor Maryland, that have their own heat standards.

Washington has had a heat rule since 2008. Maggie Leland, assistant director of the Washington Department of Labor and Industry’s governmental affairs division, expressed support for the proposed OSHA heat rule during the OSHA rule plan hearing on June 27. Washington supports the 80-degree initial heat trigger, Leland said.

West Virginia’s political leaders may be quiet on the rule proposal, but its projected net benefits speak volumes, Ceres, a Boston-headquartered sustainability advocacy nonprofit, argued in written comment filed with OSHA on the plan.

In a written comment, Richard Juang, Ceres senior manager for environmental justice policy, observed OSHA projections that the rule would yield nearly $9.2 billion in benefits per year by avoiding heat-related deaths and illnesses — roughly $1.4 billion more than compliance costs estimated by the agency.

Speaking during the OSHA rule proposal hearing on July 2, Juang noted an analysis by Swiss Re Institute, an economic and insurance research firm, last month that found heat-related health impacts can increase medical, life and workers’ compensation claims, especially among vulnerable and outdoor-working populations.

Michaels said that OSHA “didn’t have the bandwidth” to initiate heat rulemaking when he was at the agency when Marc Freedman, U.S. Chamber of Commerce vice president of workplace policy, asked him during the hearing why the agency hadn’t made that move during Michaels’ time there.

The Trump administration has proposed slashing OSHA's budget, and its gutting of the National Occupational Safety and Health is expected to complicate any implementation of a new heat standard.  

“We knew that every OSHA standard has to be letter perfect with extensive studies because we know organizations like yours take OSHA to court,” Michaels told Freedman.

'Take the deaths seriously'

The U.S. Chamber of Commerce has urged OSHA to withdraw the proposed standard, claiming its requirements amounted to burdens that could increase recordkeeping and administrative duties that draw away from time to focus on eliminating other workplace hazards.

But Barab and other proposal proponents say the real hazard would be letting employers dictate on what terms workers must try to stand the heat or get out of their workplace.

“For those who fear a strong standard, my advice is to take the science seriously. Not the myths,” Barab said. “Take the deaths seriously. Not the excuses.”