The Virginia Chamber of Commerce is pleased to submit comments in response to the Department of Labor and Industry and Safety and Health Codes Board’s Notice of Intended Regulatory Action regarding the development of regulations as required by Chapters 731 and 732 of the 2026 Acts of Assembly. As the largest business advocacy organization in the Commonwealth, representing thousands of employers of all sizes and in all industries, the Virginia Chamber has a direct interest in ensuring the rulemaking process results in regulations that are workable, clearly understood, and implemented in a manner that ensures employers are able to comply.

The Virginia business community understands well the importance of heat illness prevention and heat safety. No employer wants an employee to collapse on the job, and a workforce that is hydrated, rested, and appropriately trained is a more productive one. As the Board and Department proceed with this rulemaking, we respectfully urge the development of standards that target truly dangerous conditions rather than standards which would impose new and burdensome mandates on employers generally. Standards which do not recognize the difference between a mild summer afternoon and a legitimate heat emergency do not serve the interests of employers nor employees.

1. Defining “Worksite Control”

§ 40.1-44.2(A) defines “worker” to mean an “employee, independent contractor, or other laborer whose worksite conditions are controlled by an employer.” Worksite condition control is an essential limiting principle, however what constitutes that control is undefined in statute. That principle effectively determines whether the standards to be developed applies to traditional employment relationships or extends into arrangements where the employer, as defined, has no practical control.

Heat is unlike other workplace hazards that a standard or regulation may require an employer to control. A commercial construction firm cannot control the ambient temperature on a roof in July, an agricultural employer cannot control conditions in a field, a transportation contractor cannot control heat radiating off asphalt, etc. In these cases, the employer can control some mitigating factors, such as water, shade, and training, but not the heat itself. Likewise, for contractor-based arrangements, a company cannot affect the conditions within a contractor’s personal vehicle, determine the availability of water on a delivery route, etc.

The concept of “worksite control” is significant within the context of the statute, but the statute itself provides no guidance or indication as to how these issues should be resolved. If left undefined, the term will be constructed on an ad hoc basis, and as such will provide no certainty or predictability for employers responsible for complying with the standards nor for the workers the standards are intended to serve. As such, we respectfully urge the Board and the Department to define “control” in the regulatory process with as much specificity as possible and to recognize that, especially for industries involving outdoor work, heat itself is not a factor an employer can control.

2. Setting an Appropriate Heat Threshold

§ 40.1-44.2(B)(ii) contemplates a two-tier system for heat illness standards: a general threshold (“heat”) and a separate “high-heat” threshold which are to be set by the Board. These thresholds are among the most consequential aspects of the rulemaking, and we respectfully urge the Board and Department to consider thresholds with appropriate rigor.

Earlier drafts of the legislation that became Chapters 731 and 732 made specific reference to an 80-degree Fahrenheit threshold. This language was appropriately dropped from the enacted legislation, and we respectfully urge the Board and Department to not resurrect the idea through regulation. In the Commonwealth, 80 degrees Fahrenheit is not an unusual nor elevated condition, but rather a typical afternoon temperature across most of the Commonwealth for many months of the year. Establishing a threshold at that temperature would therefore effectively establish a continuous obligation for any employer with outdoor or non-climate-controlled indoor operations for nearly half the year, an outcome which would be at odds with the contemplated two-tier structure. Moreover, while Chapters 731 and 732 require standards for both indoor and outdoor work, the conditions are materially different and we respectfully urge the Board and Department to recognize those differences in the regulations to be developed.

Regarding outdoor work, we respectfully urge the Board and Department to tie the “high-heat” threshold to existing, recognized standards. The National Weather Service (NWS) issues Heat Advisories and Extreme Heat Watches and Warnings calibrated to regional conditions based on a combination of temperature, humidity, and duration. Anchoring outdoor heat procedures to an official NWS determination serves numerous benefits, including ensuring consistency in application across the Commonwealth’s regions and employers.

Indoor work is necessarily different in kind from outdoor work, whether the work occurs in a climate-controlled environment or otherwise. We respectfully urge the Department to establish distinct standards for indoor work, focusing particularly on functional climate control (where feasible), break access, and appropriate training, developed by the Department or another independent source and provided at no cost to the employer, to recognize symptoms.

Additionally, we respectfully urge the Board and Department to recognize many employers already use tools such as wet-bulb globe temperature on their own initiative to provide more precise, real-time data on worksite conditions. These employers undertake such initiatives because it better enables them to protect their workforce and more efficiently manage their operations. Such efforts should be recognized and encouraged by the regulations to be developed.

3. Performance-Based Standards

§ 40.1-44.2(B)(i) lists categories of required protections, including water, shade, climate-controlled access when practicable, rest periods, acclimatization, and training, but does not prescribe how an employer must satisfy those requirements. We respectfully urge the Board and Department to preserve and reinforce that flexibility in the regulations, as a prescriptive, one-size-fits-all approach fails to recognize immutable and practical differences across industries.

For example, “shade” has a materially different meaning for a warehouse with a loading dock, a highway work crew, a farm, or a restaurant kitchen. A prescriptive checklist, for shade, water, rest, acclimatization, or training, may fit some employers or industries reasonably well and others not at all. Under such a regulatory framework, employers seeking to protect their workforce may incur substantial costs to satisfy a specific requirement that does not reflect the material conditions, rather than direct limited resources toward efforts that would meaningfully reduce risk for their workforce. Such an outcome serves neither the employer nor the workforce the regulations are intended to protect.

Heat illness risk also varies significantly across individuals, independent of industry, job type, or other factors. Individual personal factors, including acclimatization, age, medication use, hydration, and underlying health conditions, can all affect an individual’s physiological response to heat. In any given scenario, indoor or outdoor, two workers performing the same task in identical conditions may experience meaningfully different levels of risk. A standard that is constructed around uniform or fixed requirements necessarily cannot account for such variations. A performance-based approach focused on identifying signs and symptoms of heat illness will better protect individual workers whose actual risk cannot be predicted by any independent factor such as temperature, job type, or industry.

Across industries, employers are best able to determine what protective measures are needed for their own operations because they have a better understanding of their day-to-day operations than any statewide regulation can anticipate. A performance-based standard which specifies required outcomes while affording employers discretion in achieving those outcomes allows employers to apply their knowledge productively rather than force a one-size-fits-all mechanism onto meaningfully disparate working conditions.

Such an approach would also be consistent with the second enactment clause of Chapters 731 and 732, which directs the Board, in consultation with the Department, to consider a range of existing and proposed standards. Just as these standards differ meaningfully in their mechanics while supporting a common goal, so too should the Commonwealth’s standards give employers the flexibility to adapt in pursuit of a shared outcome.

4. “Practicable”

Finally, the statute appropriately conditions the shade or climate-controlled-environment requirement on practicability, a standard which recognizes individual employers have varying degrees of environmental control. That term must not be left undefined in regulation, however, as failure to define the term will result in inconsistent application of the standard. As above, such inconsistency benefits neither employer nor employee.

We respectfully urge the Board and the Department to define practicability with reference to employer size and industry. Factors within the definition should include, at minimum, consideration of cost relative to an employer’s resources, the operational feasibility given the nature and location of the work undertaken, and the availability of alternatives which achieve the same purpose. A clear and workable definition is essential to ensure employers can comply with the regulations in good faith.

In conclusion, we respectfully urge the Board and the Department to make full and genuine use of the regulatory advisory panel required by Chapters 731 and 732. As the application for that panel explicitly references practical knowledge and experience, we encourage the Department to include employer representatives with practical knowledge across the full spectrum of industry and to make use of that expertise. Virginia employers already take meaningful steps, on their own initiative, to protect their employees from heat-related illness because it is good practice and because a healthy workforce is a more productive workforce. Standards developed with robust input from the business community, and with meaningful consideration of business concerns, will best enable Virginia’s employers to comply with the requirements in good faith and will be the outcome that best protects Virginia’s workers.

The Virginia Chamber of Commerce thanks the Board and the Department for its thoughtful consideration of this comment, and we look forward to continued engagement and active participation as regulations are developed.