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
Previous Comment     Next Comment     Back to List of Comments
6/9/21  8:39 pm
Commenter: Juley Fulcher, Public Citizen

Virginia should adopt a clear, strong Heat Illness Prevention Standard to save lives

Public Citizen, a consumer and health advocacy group with more than 16,400 members and supporters in Virginia and more than 500,000 members and supporters nationwide supports the efforts of Virginia Department of Labor and Industry’s Safety and Health Codes Board to implement a Heat Illness Prevention Standard. Implementation of robust workplace heat standard in Virginia is critical for worker protection.

Heat Stress Is a Significant Risk to Workers

According to the U.S. Bureau of Labor Statistics, from 1992 through 2019, exposure to excessive environmental heat killed 907 U.S. workers and seriously injured 79,584[1] – numbers that are in all likelihood vast underestimates due to underreporting.[2]Indeed, more than 600,000 Virginians work in outdoor and indoor jobs with heat hazard risks.[3]

When a worker is pushed beyond a safe heat exposure, a range of dangerous illnesses may result, including heat exhaustion, heat syncope, rhabdomyolsis, heat stroke and death. In addition to the acute threats of death and illness, these workers are also likely facing long-term health risks. Heat stress exacerbates existing health problems like asthma and heart disease, possibly shortening workers’ lives. And when coupled with dehydration, repetitive heat stress can cause depressed kidney function and chronic kidney disease.[4]

Heat Stress is Dramatically Exacerbated by the Climate Crisis

Twenty of the last 21 years were the hottest on record, and extreme high temperatures are projected to increase, as are the frequency, length and intensity of heat waves.[5] Heat waves are particularly dangerous, as the combination of both high daytime and nighttime temperatures keeps the body from cooling down during the night, making each successive day of a heat wave more deadly than the one preceding it.[6]

The summer of 2020 saw new heat records set throughout the nation, both record high temperatures and record number of days at extreme high temperatures.[7] Norfolk and Charlottesville had their hottest summers on record in 2020.[8] And Richmond had its second longest streak of daily temperatures more than 90 degrees which lasted 25 days, from July 10 to August 3, 2020.[9]

Protecting Workers from Heat Stress Is a Racial Justice Issue

There is a profound racial injustice component to workplace heat hazard risks. Essential jobs that experience the highest rates of heat illness are disproportionately held by Black and Brown workers. For example, while Latinx workers make up 17.6% of the entire workforce, they make up 65% of farm laborers, graders, and sorters,[10] and crop workers die from heat stress at a rate 20 times greater than the rest of the U.S. workforce.[11] More than 46% of laborers and freight, stock, and materials movers are Black and Hispanic/Latinx, as are more than 52% of laundry and drycleaning workers, 52% of cooks, and 58% of those working in warehouses and storage.[12] While Black Americans only make up 12.1% of the total workforce, they make up 25% of postal workers and 23% of UPS drivers.[13] They also make up nearly 28% of sanitation workers nationally and account for well over half the waste material collectors in many areas of the country.[14] Grounds maintenance workers are more than 44% Latinx, while roofers are more than 53% Latinx.[15] All of these are high heat risk jobs.

Heat Stress Has Economic Costs – and Workplace Protections Can Mitigate Them

Leaving workers unprotected from heat has significant and damaging economic effects. In high heat, people work less effectively due to “diminished ability for physical exertion and for completing mental tasks.” This reduces productivity and income for employers and employees, increases the risk of accidents, and drives up medical expenses.[16] These effects can be seen across a spectrum of economic indicators.

Heat stress has reduced labor capacity by 10 percent over the past few decades.[17] Heat-related injuries and illnesses increase workers’ compensation costs and hospital-related expenses.[18] Employers in the U.S. spend $220 billion every year on injuries and illnesses related to excessive heat.[19]

The good news is that the economic impacts of heat stress can be mitigated by the same protections that mitigate its health impacts. For instance, in 2011 a central Texas municipality implemented a heat illness prevention program for outdoor municipal workers that not only resulted in a significant decrease in heat-related illnesses, but decreased workers’ compensation costs by 50% per heat-related illness.[20]

Virginia Cannot Wait for OSHA to Develop an Enforceable Heat Standard

OSHA has had detailed recommendations for a heat standard for nearly five decades. The National Institute of Occupational Safety and Health (NIOSH) issued criteria for a recommended heat standard in 1972, which it updated in 1986 and 2016 using the most recent science.[21] 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.[22]  OSHA denied the petition.[23] 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.[24] Still, OSHA has not issued a heat standard.

Unable to rely on federal rules, California, Minnesota and Washington have issued heat standards of their own. Maryland[25] and Oregon[26] are in the process of writing standards as well. Virginia should protect its workers by joining those states in enacting a heat illness prevention standard.  


Absent a federal standard, OSHA polices heat-related injuries and deaths only by enforcing its “catch all” general duty clause that requires employers to ensure that their workplaces are “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” Enforcement is scarce, and it is reactive rather than preventive. According to the Bureau of Labor Statistics, there were 7,030 serious injuries and 92 fatalities attributed to heat exposure on the job in 2018 and 2019.[27]Yet OSHA issued only 59 heat-related violations under the general duty clause.[28] Notably, from 2013 through 2017, California used its heat standard to conduct 50 times more inspections resulting in a heat-related violation than OSHA did nationwide under the general duty clause.[29]

The Occupational Safety and Health Review Commission, an independent federal agency created to adjudicate appeals of OSHA citations and penalties, has held that the general duty clause places a high burden on OSHA to demonstrate that employers failed to provide safe workplaces. On July 15, 2020, the Commission issued decisions in five cases that make it very difficult for OSHA to protect workers from heat stress under the general duty clause. OSHA had issued citations against the U.S. Postal Service for exposing its employees “to recognized hazards of working outside during periods of excessive heat.” The Commission vacated the citations because OSHA provided no guidelines that define what constitutes dangerous levels of heat.[30]

The Commission went out of its way to point out that its findings did not necessarily mean that excessive heat didn’t exist in the cases, but rather there were no clear OSHA standards. The Commission went on to say that the lack of a standard on heat stress also made it extremely difficult to make sure employers can recognize the hazard.[31] These Commission findings demonstrate the difficulty in holding employers accountable for failure to protect workers from heat hazards under OSHA’s general duty safety requirement.

Virginia Must Implement a Strong Workplace Heat Illness Prevention Standard

The Board should adopt commonsense, basic decency measures that protect workers from heat-related illness and death. Many employers already take appropriate measures to protect workers from heat. A standard would simply ensure that all employers are meeting their employees’ basic needs.   

The Virginia heat illness prevention standard should, at a minimum, include the following elements, based largely on NIOSH’s latest (2016) iteration of its criteria for a recommended standard for occupational exposure to heat:[32]

Heat stress thresholdsAt NIOSH’s recommended exposure limits for acclimatized and unacclimatized workers, employers would be required to initiate robust protective measures. These include: (1) mandatory paid rest breaks in shaded or air-conditioned areas; (2) personal protective equipment (PPE) (e.g., water-cooled garments, air-cooled garments, or cooling vests), and (3) free access to water in quantities sufficient to maintain adequate levels of hydration at varying levels of heat, as well as electrolytes if workers are sweating for more than two hours.

Special consideration must be given to the impact of productivity requirements and incentives in developing protective measures. These systems may discourage employees from 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.[33] If they take a break, they get paid less. The same systems may discourage workers from drinking necessary water or force workers to take drastic and inhumane measures like wearing diapers to not have to stop for bathroom breaks.[34] 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.[35] Similarly, many workers in factories are subject to a system wherein they receive points or warnings for so-called infractions, which can include taking too much break time.[36]  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.

Heat acclimatization plan: All workers beginning work in high-heat environments, or who will be working in hotter conditions than usual (e.g., during a heat wave), must be gradually acclimatized to the work over a period of at least 7–14 days.

Exposure monitoring: Employers must monitor both environmental heat exposure and employee workloads to ensure that no worker is exposed to excessive heat stress.

Emergency medical plan: Employers should have clear procedures in the event that a worker develops signs or symptoms of heat illness, including effective communication systems, appropriate on-site care to reduce body temperature, and calling 911 for emergency medical care. 

Hazard notification: Employers must post prominent signs, in languages their workers understand, in high-heat areas warning of the dangers of heat stress. Employers must develop a written Heat Alert Program to be implemented whenever the National Weather Service or other authoritative weather service forecasts a heat wave for the coming day or days in order to help improve worker awareness and preparedness.

Worker information and training: All workers and supervisors who work in areas where there is a reasonable likelihood of heat illness must be trained on measures to prevent and mitigate the risk. A written training program must be developed to serve as the basis for this training.

Heat-related recordkeepingEmployers should maintain data on susceptible workers, workplace modifications to mitigate the risk of heat stress, all heat-related injuries and deaths, and all environmental and physiological measurements related to heat.

Whistleblower protections: There must be clear  whistleblower protections ensuring that workers will not be punished in any way for reporting what they believe to be a violation  of the heat standard. Virginia should have a system in place for anonymous reports of violations.

Air conditioning in employer provided housing After experiencing heat stress, it is important for the body to cool down overnight. To allow workers to recover from the heat adequately, employers who provide housing should also provide air conditioners.



[1] Occupational injuries/illnesses and fatal injuries profilesBureau of Labor Statistics

[2] Government Accountability Office, Workplace Safety and Health: Enhancing Osha’s Records Audit Process Could Improve the Accuracy of Worker Injury and Illness Data, (Oct. 2009), http://bit.ly3fQ6Dlk; AFL-CIO, Immigrant Workers at Risk: The Urgent Need for Improved Workplace Safety and Health Policies and Programs, (2005), Mines, U.S. Department of Labor, An Evaluation of the Gathering of Occupational Injury Data by The National Agricultural Workers Survey (NAWS) 30 (July 13, 2004); Larry Jackson & Howard Rosenberg, Preventing heat-related illness among agricultural workersJournal of Agromedicine 15 200-215 (2010); Jonathan Hofmann, Karen Snyder & Matthew Keifer, A descriptive study of workers’ compensation claims in Washington state orchardsOccupational Medicine 56 251-257 (2006); Eric Hansen & Martin Donahoe, Health issues of migrant and seasonal farmworkersJournal of Health Care for the Poor and Underserved 14 2 153-164 (May 2003).

[3] Based on data from May 2020 State Occupational Employment and Wage Estimates — Virginia, BLS (2020)

[4] Brian Curwin, NIOSH, Chronic Kidney Disease of Unknown Etiology: Niosh Pesticide Exposure Study in El Salvador Sugarcane Workers (Sept 27, 2016),

[5] RS Vose, DR Easterling, KE Kunkel, et al., 2017: Temperature changes in the United StatesClimate Science Special Report: Fourth National Climate Assessment 1 185 (2017); Umair Irfan, Eliza Barclay & Kavya Sukumar, Weather 2050, VOX (July 19, 2020),

[6] Newburger, Emma, Heat waves are becoming more deadly as nights warm faster than days, CNBC (Sep. 12, 2020),

[7] Global Temperature, Latest Annual Anomaly: 2020, NASA,; Rebecca Lindsey and LuAnn Dahlman, Climate Change: Global Temperature, NOAA CLIMATE.GOV,

[8] Karma Allen, 2020 Was the Hottest Summer on Record for Dozens of U.S. Cities, ABC News (Sep. 2, 2020),

[9]  Nick Russo, Virginia’s 2020 Summer in review: Hot and Dry First Half, Then Wet and Cooler Second Half, NBC12 News, (Sep. 22, 2020), NBC12,

[10] Farm LaborUnited States Department Of Agriculture Economic Research Service (data from 2018),

[11] Heat Related Deaths Among Farmworkers, United States — 1996-2006, CDC,

[12] Labor Force Statistics from the Current Population Survey, BLS (2020), Force Statistics from the Current Population Survey, BLS (2020),

[13] Labor Force Statistics from the Current Population Survey, BLS (2020), We Are, UPS (2015),

[14] Labor Force Statistics from the Current Population Survey, BLS (2020),; Cole Rosengren and E.A. Crunden, Risk and Race Concerns Fuel Ongoing Debate around Hazard Pay During PandemicWaste Dive (July 9, 2020),; Juliana Feliciano Reyes, Trash is Piling Up but People Aren’t Blaming Philly Sanitation WorkersPhiladelphia Inquirer (Aug. 4, 2020),

[15] Labor Force Statistics from the Current Population Survey, BLS (2020),

[16] Climate Change and Labor: Impacts on Health in the WorkplaceUnited Nations Development Programme27 (Apr. 28, 2016),

[17] John P. Dunne et al., Reductions in Labour Capacity from Health Stress under Climate WarmingNature Climate Change 3 6 563-566 (2013); International Labour Organization, Working on a Warmer Planet: The Impact of Heat Stress on Labour Productivity and Decent Work, 26 (2019),

[18] Sidney Shapiro & Katherine Tracy, Public Law and Climate Disasters Occupational Health and Safety Law (Rosemary Lyster et al. eds., 1st ed., Edward Elgar Pub, 2018), Global Change Research ProgramFourth National Climate Assessment, Volume II (Nov. 2018),

[19] Lehmann, Heidi, Hidden Heat: The Costly Impact of Heat-Related InjuriesNorth American Clean Energy (July 15, 2020),

[20] Ronda McCarthy, Francis Shofer & Judith Green-McKenzie, Occupational Heat Illness in Outdoor Workers Before and After Implementation of a Heat Stress Awareness ProgramJournal Of Occupational And Environmental Medicines 75 A505 (April 24, 2018)

[21] NIOSH [2016]. NIOSH criteria for a recommended standard: occupational exposure to heat and hot environments. By Jacklitsch B, Williams WJ, Musolin K, et al. Cincinnati, OH: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health, DHHS (NIOSH) Publication 2016-106.

[22] 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 1 (Sep. 1, 2011), (last accessed June 2, 2021).

[23] Lette

CommentID: 99054