Proposed Federal Rest Break Mandate for Working in the Heat Faces Uphill Battle

At least 42 workers died from exposure to the heat in Texas between 2011 and 2021 (image via Getty Images)

A new proposed rule from the Occupational Safety and Health Administration (OSHA) could play a dramatic role in protecting construction workers from the effects of extreme heat, but it’s unclear whether the rule will ever take effect.

In June, at the urging of U.S. Rep. Greg Casar, OSHA unveiled a new proposed rule to protect workers from extreme heat by requiring employers to give workers regular rest and hydration breaks in hot and humid conditions. The rule, if finalized after a review and public comment period, would protect some 36 million workers and help mitigate what Christine Bolaños, communications director for Workers Defense Project, describes as a routine disregard for the lives of construction workers.

“It’s coming from the construction industry, it’s coming from supervisors, the vast majority of whom are subcontractors who don’t value their workers for their humanity but rather what they can produce, and of course this is all compounded by the climate crisis,” Bolaños said. “Summers are getting increasingly, dangerously hotter.”

But there is no guarantee the OSHA rule will ever be adopted. According to The Washington Post, the proposal is facing major opposition from a number of the most powerful interest groups in the country including the oil and gas industry, construction, agriculture, and tourism, which are arguing that giving workers breaks from the heat will harm their competitiveness. If Donald Trump is elected president in November, the rule – as well as OSHA effectiveness more broadly – could be in serious jeopardy.

Ana Gonzalez, organizing and advocacy director at the Texas AFL-CIO, the most prominent labor organization in Texas, said she and other labor leaders in Texas are familiar with the industry’s talking points from past battles over local rest break ordinances in cities like Austin and Dallas. For her, they don’t add up.

“These ordinances have been in place for years, and construction has not stopped,” Gonzalez said. “On the contrary, construction is booming in the biggest cities in Texas. So where is the impact?”

Heat-related injuries and illnesses are a serious issue in Texas writ large, but conditions are particularly dangerous for construction workers: At least 42 workers died from exposure to the heat in Texas between 2011 and 2021, the most of any state in the nation. Austin construction workers had some measure of protection thanks to a 2010 ordinance mandating that employers give their workers a 10-minute break for every four hours worked outdoors, but the state Legislature’s passage of House Bill 2127, the so-called Death Star law, effectively nullified that ordinance and those like it last year.

The passage of that bill, which is currently being challenged on constitutional grounds, has made the progress of the OSHA proposal all the more important. The proposed rule is also significant because it would apply to all workers – a particularly vital step at a time when people who work in factories and warehouses, on farms, or for delivery services like Amazon are also grappling with the effects of extreme heat. Bolaños noted that some Workers Defense members also work part time in domestic cleaning, sometimes in buildings that are not yet completed or are not fully air-conditioned, and feel the effects just as they do on construction sites.

“They’re feeling like they’re working for hours on end in an oven,” Bolaños said. “That is how they’ve described it to us.”

Given the trendlines, the progress of the OSHA rule could have life and death consequences – and even if workers don’t die from heat exposure, their lives can be irreparably changed by it.

“Frequent and consistent exposure to heat has resulted in both short-term and long-term illness,” Bolaños said. “We have a member in Austin who has gotten lifelong eye damage because of frequent exposure to the sun’s rays. She is needing to undergo an operation because there has been severe damage to her cornea – there is essentially a fleshy buildup on her cornea.”

Those kinds of injuries, which are less likely to show up in official statistics, have compounding effects: Workers who suffer heat-related injuries or illnesses are often unable to work, leaving them unable to afford the kind of treatment they need to resume their lives and jobs.

It can be a vicious circle. Current OSHA standards require employers to facilitate a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees,” but enforcement is often lacking. According to an AFL-CIO report issued in April, OSHA currently has just 1,875 inspectors – meaning it would be able to inspect all of the 11.5 million workplaces under its jurisdiction just once every 186 years.

Bolaños said that, given the uncertainty around OSHA and the unlikelihood of congressional legislation on rest breaks, Workers Defense is looking at other avenues to try to protect Texas workers like joining the Center for Biological Diversity’s demand that the Federal Emergency Management Agency (FEMA) characterize heat and wildfire smoke as major disasters to get relief to affected communities.

Even if the OSHA rule is approved, it may just be a beginning to the fight for worker safety in the heat.

“In a perfect world, it would be at the very least once an hour that you are getting in the shade and rehydrating,” Captain Christa Stedman, public information officer for Austin-Travis County EMS, said.