Virginia Regulatory Town Hall
Department of Labor and Industry
Safety and Health Codes Board
Heat Illness Prevention Standard [16 VAC 25 ‑ 210]
Action NOIRA on Heat Illness Prevention
Comment Period Ended on 6/9/2021
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6/9/21  9:24 am
Commenter: Rachel McFarland; Legal Aid Justice Center

Virginians need heat stress protections
  1. Heat Stress Protections Are Vital for Workers.


There is no comprehensive federal or Virginia standard protecting workers against heat stress.  Without protections, Virginia’s workers are at risk of severe illness or death.  Heat kills more Americans than any other weather-related hazard.[1]  Heat illnesses occur when the total heat load exceeds what the body can handle while maintaining normal functions.[2]  Workers are at risk of heat stress in both outdoor work and indoor work, particularly when engaged in strenuous activities or with inadequate air conditioning.[3]  Even when heat illness is not a problem, productivity can suffer.[4]  Between 1992 and 2016, at least 783 workers died of heat stress and 69,374 workers were seriously injured.[5] 


There are various types of heat illness.[6]  Heat syncope occurs when someone has been standing for a long time or gets up suddenly having been sitting or lying down; it causes symptoms like dizziness or fainting.[7]  Heat rash, from excessive sweating, causes pimples and/or blisters.[8]  Heat cramps are caused by sweating when the person’s salt levels get too low; symptoms include cramps and spasms in muscles.[9]  Rhabdomyolysis occurs with prolonged physical activity and causes rapid degradation of muscle tissues and acute injury to the kidneys.[10]  Heat exhaustion occurs when the body has lost excessive amounts of water and salt.[11]  Symptoms include “headache, nausea, dizziness, weakness, irritability, thirst, heavy sweating, elevated body temperature, or decreased urination.”[12]  When not treated properly and quickly enough, heat exhaustion can lead to heat stroke, at which point the body can no longer produce sweat or control the internal temperature.[13]  Heat stroke symptoms include “confusion, slurred speech, hot and dry skin or profuse sweating, seizures, and loss of consciousness (coma),” as well as death.[14]


Although data shows high numbers of injuries and deaths from heat stress, these numbers are likely substantially lower than the true numbers.[15]  First, the data comes from Form 300 Logs, which are not required for employers not covered by OSHA and only require reporting if the injury or illness is sufficiently severe.[16]  Form 300 Logs are notoriously incomplete as employers underreport to avoid liability.[17]  Medical providers have also reported that employers have asked them to provide only enough treatment to not reach the reporting threshold.[18]  Employees underreport fearing retaliation and because of employer-sponsored incentive programs where workers get rewards for lack of injuries.[19]  Undocumented workers are especially afraid of reporting, fearing deportation.[20]  Workers may also not report because they cannot afford to miss work.[21]  Heat stress symptoms can be mistaken for symptoms of other illnesses, causing misdiagnoses.  Finally, heat stress makes workers more prone to accidents, which may be attributed as the sole cause of injury or death.[22]  All in all, millions of workers are at risk.


  1. Virginia Cannot Rely on Federal OSHA or Congress to Fill the Gap.


Virginia cannot wait for OSHA or Congress to take possible future action.  OSHA has shown no willingness to promulgate heat stress protections.  In 2011, Public Citizen, Farmworker Justice, Radio and Machine Workers of America, and Dr. Thomas Bernard petitioned OSHA to issue an Emergency Temporary Standard and begin the rulemaking process for a permanent standard.[23]  OSHA denied the petition.[24]  In 2018, Public Citizen, Farmworker Justice, United Farm Workers, Drs. Eula Bingham and David Michaels (both former OSHA directors), Ellen Widess (former CalOSHA director), Dr. Marc Schenker, 131 organizations, and 89 individuals petitioned OSHA again for a permanent standard.[25]  OSHA has never replied to this petition.  This second petition included the 2016 recommendations from NIOSH.[26]  NIOSH first issued heat stress recommendations in 1972 in the early days of OSHA’s and NIOSH,[27] but OSHA has never promulgated any standards.  By contrast, California, Washington, and Minnesota have enacted their own standards.[28]  In 2020, Maryland enacted a law requiring MOSH to promulgate protections by October 2022.[29]  Each of these states, state-plan states like Virginia, have shown that waiting for OSHA is insufficient when it comes to protecting workers. 


OSHA’s dereliction of its duties is further illustrated by the COVID-19 pandemic, to which OSHA has utterly failed to respond.[30]  Not only has OSHA conducted substantially fewer inspections than normal, despite more complaints,[31] it has not issued an Emergency Temporary Standard (ETS).  President Biden issued an Executive Order on his first day in office ordering OSHA to issue an ETS, should the agency determine one necessary, by March 15, 2021.[32]  OSHA did not send anything to the OMB until April 26, 2021,[33] more than a month late.[34]  If OSHA does not act in a timely fashion under presidential orders, it stands to reason they will also not act timely without one. 


Indeed, knowing that Virginia could not wait for OSHA to act against COVID-19, this very board enacted the country’s first COVID-19 ETS and later permanent standards.[35]  These standards are a perfect illustration of how Virginia can and should go beyond federal OSHA and proactively protect Virginian workers.  Of note, the Safety and Health Codes Board (“the Board”) unanimously voted to push the current NOIRA forward, showing that they know the importance of these standards.


Finally, although a bill was introduced in Congress for federal protections, [36] even if it passes, the process will be lengthy.  The bill does not require a proposed standard until 2 years after the bill’s enactment, and the final standard would not be required until 42 months after enactment.[37]  Virginia would then have six months from the effective date of the standard to adopt the same or an equivalent standard, assuming that is required.[38]  Thus, even if the bill passes, Virginians would not be protected for at least 4 years from the date of enactment.  This is grossly insufficient to protect workers’ lives that are in danger now.    


  1. The Board Should Explore Options to the Maximum Extent Possible.


OSHA’s use of the general duty clause has proven insufficient and illustrated why specific standards are essential.  As the Board conducts its investigation, it should cast a wide net to ensure maximum and sufficient coverage. 


Workers can currently only seek protection from employers’ failure to protect them from heat stress through the general duty clause,[39]  which requires employers to “furnish to each of [their] employees safe employment and a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees.”[40]  Though hazards can be “recognized” by common-sense, it is much harder to show the existence of a hazard not covered by regulations.[41]  The agency must also show that there was a condition that “exposed employees to a ‘significant risk’ of harm that “was ‘causing or likely to cause death or serious physical harm.’”[42]  As such, the general duty clause is rarely used—indeed in 2018, OSHA only used the general duty clause in 1.5% of their citations.[43]   


Even when the general duty clause is used, the agency may not be able to enforce a citation; in a series of cases in front of the Occupational Safety and Health Review Commission in 2020, the administrative law judge reviewed citations under the general duty clause issued against the United States Postal Service for failure to provide sufficient protections against heat stress.[44]  OSHA had relied on heat index levels created by the National Weather Service.[45]  In deciding to give the chart less weight, the judge found that there had been no evidence regarding the scientific basis for the chart’s categorization, even though the reliability of the calculations were not in dispute.[46]  The judge also noted that determining when the heat reached the threshold of high heat was not clear, specifically acknowledged that one cause for this difficulty is the lack of a heat stress standard,[47],[48] and thereby reversed the citations.[49],[50]


Because specific, clear standards will result in better compliance and protections, the Board should investigate as expansively as possible to include all feasible requirements.  The standards the Board should adopt are not burdensome, but common sense, basic decency measures that many employers already provide; the standards would simply ensure that all employers are meeting their employees’ basic needs.  Furthermore, because heat illness reduces productivity,[51] these standards help employers, too.


Although the following is not an exhaustive list, the Board should consider the following:


  1. Acclimatization


Acclimatization—the gradual adaptation to high temperatures—is necessary to help tolerating exposure to high heat.[52]  NIOSH recommends limiting heat exposure for unacclimatized workers, and for acclimatized workers if the temperatures are higher than those for which they are acclimatized.[53]  Additionally, employers should have a plan for acclimatization.[54]


  1. Provision of water and electrolytes


Water—provided by the employer—is essential to mitigate heat stress; one should drink 8 ounces of water every 15 to 20 minutes.[55]  If a worker has been working for more than 2 hours, she should be provided water and electrolytes.[56]  Because, as discussed infra, workers may have incentives to not stop for water, the Board should consider how to ensure workers take advantage of water breaks.[57]


  1. Breaks


Breaks in cool, shady areas are necessary.[58]  Taking breaks helps slow down the accumulation of heat.[59]  The frequency and length of the break workers need depends on the total heat load, but in general should range from 15 to 45 minutes per hour.[60]  As with water, how to ensure workers take advantage of breaks should be considered.[61] 


  1. Protections against both heat and cold stress


Workers can be at risk of cold stress from overly cold environments, both inside and outside.[62]  Like heat stress, cold stress can lead to death.[63]  Many cold stress prevention measures mirror those for heat stress.[64]  Although heat and cold stress are on two opposite ends of the temperature spectrum, both should be addressed to be most efficient and protect the most workers.


  1. Training


Workers can best protect themselves and their coworkers when properly trained about risks and prevention measures.[65]  Train-the-trainer programs are useful because they reinforce the material through teaching workers how to teach their coworkers.[66]


  1. Creation of preparedness plans


Employers should have an emergency plan—that workers know—to use in the event of heat illness.[67]  This includes how to communicate an emergency and what to do (e.g., where to take the worker, who to call, how to cool the worker down, etc.).[68]


  1. Provision of air conditioning in employer provided housing


Because of acclimatization, it is important for workers to have a cool environment at home;[69] To allow workers to recover from the heat adequately, employers who provide housing should also provide air conditioners.


  1. Ensuring compliance with ADA protections


Some risk factors are tied to the individual’s health factors.[70]  The employer should be sure not to violate any employee’s rights under the Americans with Disabilities Act in determining risk factors.


  1. Considerations for piece rates and points systems


Other considerations may impact an employee stopping to get water or take a break; for example, many farmworkers are paid on a piece-rate system, being paid more for picking more.[71]  If they take a break, they get paid less.  There are reports of workers wearing diapers to not have to stop for bathroom breaks.[72]  To combat this, California requires employers to calculate the piece rate excluding the break time and then use that rate to calculate the rest time rate.[73]  Similarly, many workers in factories are subject to a system wherein they receive points or warnings for so-called infractions, which can include break times.[74]  These workers may be wary of taking breaks.  The Board should keep these countervailing interests in mind and create ways to ensure workers receive the benefits of the standards.


[1] Georges C. Benjamin, Killer Climate: More Americans Are Dying From Extreme Heat, The Hill (Sep. 12, 2019), (last accessed June 2, 2021).

[2] Brenda Jacklitsch et al., Dept. of Health and Human Serv., Criteria For A Recommend Standard: Occupational Exposure to Heat and Hot Environments 1 (2016), (last accessed June 2, 2021). 

[3] Id. at v; Letter from Sammy Almashat, M.D., M.P.H., Staff Researcher, Public Citizen’s Health Research Group et al., to Hon. Dr. David Michaels, Ph.D, M.P.H., Asst. Sec. of Labor for Occupational Safety and Health, Dept. of Labor 21 (Sep. 1, 2011), (last accessed June 2, 2021).

[4] International Labour Organization, Working on a Warmer Planet: The Impact of Heat Stress on Labour Productivity and Decent Work 18 (2019), (last accessed June 2, 2021).

[5] Letter from Sidney Wolfe, M.D., Founder and Senior Advisor, Public Citizen’s Health Research Group, to Loren Sweatt, Acting Asst. Sec. of Labor for Occupational Safety and Health, Dept. of Labor 8-9 (July 17, 2018), (last accessed June 2, 2021).

[6] Centers for Disease Control and Prevention, Heat Stress – Heat Related Illness, (last accessed June 2, 2021).

[7] Wolfe, supra note 5, at 7.

[8] Centers for Disease Control and Prevention, supra note 6.

[9] Id.

[10] Wolfe, supra note 5, at 7.

[11] Centers for Disease Control and Prevention, supra note 6.

[12] Wolfe, supra note 5, at 8.

[13] Id.

[14] Id.; Centers for Disease Control and Prevention, supra note 6.

[15] Wolfe, supra note 5, at 10.

[16] Id. at 10-11.

[17] Id. at 11.

[18] Id.

[19] Id.

[20] Id. at 11-12.

[21] Id. at 12.

[22] Id.

[23] Almashat, supra note 3 at 1

[24] Letter from Dr. David Michaels, Ph.D, M.P.H., to Sidney Wolfe, Director, Public Health Citizen‘s Research Group 1 (Jun. 7, 2012), (last accessed June 2, 2021).

[25] Wolfe, supra note 5, at 1.

[26] Id.

[27] Centers for Disease Control and Prevention, Criteria for a Recommended Standard: Occupational Exposure to Hot Environments (1972), (last accessed June 2, 2021).

[28] Wolfe, supra note 5, at 1.

[29] Occupational Health and Safety, Maryland Enacts AIHA-Support Bill Protecting Workers from Heat Stress (May 18, 2020), (last accessed June 2, 2021).

[30] Irina Ivanova, U.S. Workplace Safety Enforcer Failed During COVID-19, Watchdog Says, C.B.S. News (Mar. 2, 2021), (last accessed June 2, 2021).