States take lead on heat protection rules for workers

While it is unclear what the second Trump administration will mean for the Occupational Safety and Health Administration, experts expect work will halt at the federal level on hazard-specific safety standards, including the ongoing development of one to protect outdoor and indoor workers from extreme heat.

“In the absence of a national standard, we will continue to see individual states pursue worker heat regulations to protect outdoor workers and, in some cases, indoor workers,” said Andrew Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP.

OSHA in August introduced a proposal for a heat standard. The public comment period now ends Jan. 14, 2025, extended from the original Dec. 30 deadline, meaning the Biden administration will not have enough time to put a standard in place, experts said. As of Tuesday, 16,675 comments had been filed, according to the Federal Register website.

The agency on Monday announced an informal public hearing on the proposed rule will begin June 16, 2025.

As of late November, seven states had in place heat-related mandates for employers — California, Colorado, Maryland, Minnesota, Nevada, Oregon and Washington.

On Nov. 14,  New Jersey lawmakers introduced a bill that would create heat guidance for employers. The measure states that it was prompted by the federal government’s failure to do so.

“There’s nothing stopping states from going in and passing their own regulations that have to do with safety,” said Alka Ramchandani-Raj, Walnut Creek, California-based shareholder and co-chair of the Occupational Safety and Health Practice Group at Littler Mendelson P.C. She added that “states are figuring out ways to pass laws that they think are necessary … and not just relying on OSHA to create those regulations.”

Ava Gallo, climate & energy manager of the National Caucus of Environmental Legislators in Washington, said that while the federal government must contend with the needs of all states with regard to climate issues, individual states have a better handle on the needs of their own workforces. Some states with hotter climates have been working on heat standards for years, and other states are picking up the pace, she said.

“We’ve already seen states lead on this. I think that states will continue to lead on that front to create heat safety standards in the U.S.,” Ms. Gallo said.

Texas and Florida have been outliers in that both passed laws — in 2023 and 2024, respectively — prohibiting individual jurisdictions from developing heat-related rules. Florida’s law, however, calls on the state to develop its own standard if federal OSHA doesn’t do so by 2028.

Chris Nickels, Milwaukee-based labor and employment attorney at Quarles & Brady LLP, advises employers, regardless of whether mandates are in effect, to assess the needs of their workplaces. OSHA, even without a heat standard, can still cite an employer for failing to protect workers under the agency’s general duty clause, which states that workplaces must be free from known hazards, he said.

“We were always in a wait and see as it relates to the specifics of the federal OSHA heat stress rule,” he said. “But if you’re an employer operating in environments where heat is a factor — whether that’s due to environment or heat-generating manufacturing processes — it is important now to prioritize worker safety and implement a heat injury prevention plan that can include simple and effective measures, some of which were part of this OSHA plan, such as providing access to cool drinking water, designated break areas, and maintaining open lines of communication with workers.”