June 8, 2021

Jay Withrow

Director, Division of Legal Support, ORA, OPPPI, and OWP

Virginia Department of Labor and Industry

600 E. Main Street, Suite 207

Richmond, VA 23219

Mr. Withrow, 

The Commonwealth Institute for Fiscal Analysis (TCI) submits the following comments in response to NOIRA the Virginia Department of Labor and Industry/Safety and Health Codes Board published in the Virginia Register on May 10, 2021 (16 VAC 25-210). 

TCI works to advance racial and economic justice in Virginia by advocating for public policies that are designed in partnership with people most impacted, and shaped by credible, accessible fiscal and policy research. As part of that mission, we believe that workers in Virginia deserve strong, comprehensive, and enforceable protections from the dangers posed by heat stress. We offer the following background information and recommendations as the Safety and Health Codes Board considers new standards to help prevent worker injuries, illnesses, and fatalities due to excessive heat at places of work. 

Heat Stress Protections Are Essential for Workers

According to analysis of data from the Bureau of Labor Statistics (BLS) from 1992 through 2016, exposure to excessive heat killed 783 workers in the United States and seriously injured nearly 70,000 more. But for a variety of reasons, these figures almost certainly understate the number of injuries and fatalities each year. For example, federal law generally does not require farms with fewer than 11 workers to report heat-related events, even though agricultural workers are at significant risk of heat-related illness. Workers are also likely to underreport injuries and illness on account of retaliation concerns and, in cases where the individual is an undocumented worker, fear of deportation. The National Institute for Occupational Safety and Health estimates that for every 1,000 workers, at least two workers are at risk of heat stress, although that figure is higher in certain at-risk occupations (e.g., agriculture, construction, etc.) 

A Lack of Enforceable Protections Against Heat Stress Puts Virginia’s Workers At Risk

Virginia workers currently have no comprehensive, enforceable protections against heat stress under federal law or state law. Given the danger that workers in the Commonwealth face, Virginia should not wait for possible future action on this issue by Congress or OSHA and should move forward with strong state-level protections. In taking this step, Virginia would not be an outlier. Indeed, several other states across the country—from Washington to Minnesota—have successfully developed their own heat-stress standards. Similarly, a new law in Maryland that passed in 2020 directs the state to promulgate new heat-stress regulations by October 2022. 

Clear and Comprehensive Standards Will Benefit Virginia’s Workers and Employers

As the Safety and Health Codes Board considers the scope of any new heat-stress standards, TCI highlights the following priority areas (not intended as an exhaustive list of the key issues): 

• Acclimatization: Acclimatization, or the gradual adaptation to higher temperatures, is necessary to help people withstand exposure to heat. Acclimatization is particularly important for new workers who are adjusting to a hot work environment. NIOSH recommends limiting heat exposure for unacclimatized workers and requiring employer acclimatization plans for new and returning workers. 

• Access to Water: In 2021, the Virginia General Assembly passed a resolution recognizing that access to clean, potable, and affordable water is a necessary human right. Water is also critical to help mitigate heat stress and NIOSH recommends that a person involved in “moderate work activities” drink eight ounces of water every fifteen to twenty minutes. 

• Breaks: Workers should be guaranteed regularly-scheduled breaks of appropriate length, depending on workplace temperature and worker activity level. 

• Protections Against Cold Stress: While heat and cold stress are on opposite ends of the temperature spectrum, both should be addressed by the Safety and Health Codes Board  to protect the most workers in Virginia. 

• Training & Preparation Plans: All workers and supervisors who work in areas where there is a likelihood of heat-related illness should be trained on specific measures to manage the risks and respond appropriately to heat stress symptoms and emergencies. 

Thank you for the opportunity to submit comments on this proposed rulemaking. Feel free to contact me with questions or requests for information.

Ashley Kenneth

President & CEO

The Commonwealth Institute for Fiscal Analysis