Businesses across the country could soon be facing some serious heat from federal regulators. In response to worker deaths and injuries spurred by dehydration and roiling temperatures, the Biden administration will soon propose a federal heat standard via the Occupational Safety and Health Administration’s (OSHA) rulemaking process (the same agency tasked with implementing vaccine mandates). And already, familiar fault lines are emerging between labor groups such as United Farm Workers and businesses and entrepreneurs fearful of runaway costs. Before overhauling federal rules, regulators should consider the unintended consequences of reinventing the wheel and mull less costly alternatives. OSHA can ensure that farmworkers have shade and water without mandating costly paperwork requirements and heat illness plans.
It is easy to discount the dangers of heat from behind a laptop in an air-conditioned room. The simple fact, though, is that dozens of people working in agricultural fields die each year due to exposure to heat and sunlight. A recent investigation by NPR and Columbia Journalism Investigations revealed nearly 400 workers have died from environmental heat exposure in the U.S. over the past 10 years. These deaths are happening even though the “General Duty Clause” of the Occupational Safety and Health Act of 1970 requires employers to mitigate known risks. In addition, OSHA’s Field Sanitation standard, “requires employers in agricultural operations to provide sufficient toilet facilities, handwashing facilities, potable drinking water (suitably cool and in sufficient amounts) to their employees.”
The standard also stipulates, “[t]he employer shall notify each employee of the location of the sanitation facilities and water and shall allow each employee reasonable opportunities during the workday to use them.” Based on these laws and standards in place, OSHA could make a point of more consistently monitoring employers to make sure they are giving their workers “reasonable opportunities” to drink water under adequate shade in order to mitigate the known risks of heat exposure. And, OSHA has certainly handed out heat illness-related citations.
The Biden administration, though, wants to focus on more expansive regulations that could mandate everything from required training and increased mitigation paperwork to more paid breaks. Unlike, say, more consistent water and shade, these interventions are far from no-brainers. Oregon Farm Bureau Policy Counsel Samantha Bayer points out, “[f]armers have to keep track of so much… And then to go and learn new rules that are pages and pages of legalese and then not only learn them and apply them on their own farm but then effectively communicate those with their employees when there’s language barriers is really challenging.” Any (inevitable) delegation of that responsibility will lead to increased costs, much of which will be passed along to consumers in the form of higher produce prices. Regulators, then, need to carefully weigh the benefits of compliance beyond ordinary shade and water requirements with the cost of a regressive tax on food.
While the benefits of a strict federal standard are unknown, regulators could at least look to California’s rules (from 2005) mandating training, prevention plans, emergency procedures, and close observation. And, despite roughly 4,000 heat-related inspections per year and a citation rate of 47 percent, California has still seen about four dozen worker heat deaths since 2010. Compared to the roughly 400 worker heat deaths nationwide over the same period, this figure suggests that California hasn’t found a regulatory panacea.
Ultimately, more consistent enforcement of basic rules might prove more useful in preventing worker deaths than broad-based mandates which could lead to compliance headaches and higher food prices. The Biden administration and OSHA should think twice before fanning the flames of the regulatory state.