7.14.24 – San Antonio Report (Texas) – As heat waves intensify across the US, OSHA is on an “aggressive timeline” finalize a rule aimed at protecting millions of workers from the significant health risks of extreme heat, says Rep. Greg Casar, D-Texas. The issue is particularly acute in San Antonio, help for workers during a busy period of construction in Texas, which does not currently have legislation that explicitly outlines protocols to help workers avoid illness from heat exposure.
San Antonio is one of the fastest growing cities in the nation. It’s also often one of the hottest, as climate change increases temperatures and extends the number of sweltering days.
Yet as it and other Texas cities are constantly under construction to absorb all the growth, they’re also rapidly running out of policy solutions to keep workers safe in the heat — the leading cause of weather-related deaths.
This month, the U.S. Department of Labor proposed rules that could protect millions of workers from the increasing risks of extreme heat, by requiring employers to create plans that could include requirements for drinking water, rest breaks and protections for unacclimated workers.
It often takes years to finalize such rules, but U.S. Rep. Greg Casar, who helped both Austin and Dallas develop their heat safety ordinances, said Friday that the Occupational Safety and Health Administration (OSHA) is now “on an aggressive timeline” to get it done after the White House fast-tracked the issue in July 2023.
Casar has become a champion on the issue of heat safety for outdoor workers, helping Austin and Dallas craft their ordinances and going on a “thirst” strike to draw attention to the issue last summer — when across the state, Texas cities were sounding the alarm on their increasingly limited abilities to regulate the issue.
At the time, San Antonio was following in Austin and Dallas’ footsteps when the state’s Republican-led Legislature approved a sweeping anti-regulatory law designed to supersede cities’ authority on a plethora of issues, including heat safety ordinances.
That law is now held up in court and not technically enforceable, but the threat caused San Antonio to narrow its ordinance on breaks for outdoor workers to cover only companies that work on certain city-funded projects.
With Texas lawmakers showing little appetite to protect workers at the state level, and local laws in limbo, OSHA’s proposed rules could be workers’ best bet.
“So these rules, in many ways, have their birthplace in Texas,” said Casar, “both in getting some of the rules passed at the local level, and then trying to bring federal rules in for workers, given that the governor eliminated these protections.”
But the path forward is hardly settled. Even as OSHA is moving quickly, Casar said it must also develop its proposed rules in a way that would survive an almost certain legal challenge, especially given the Supreme Court’s recent Chevron decision, which sharply curtailed federal agencies’ ability to interpret the laws they administer.
Why an OSHA regulation?
Major construction companies argue they’ve been innovating for years to help workers beat the heat in San Antonio, with electrolyte popsicles, bans on sugary energy drinks, acclimation plans and color-coded hats.
And in a state where businesses flock to avoid regulations, even some construction companies acknowledge the seriousness of the issue.
“We obviously take this very seriously, all year ’round,” said Matt McCaffrey, a vice president with Skanska in San Antonio, which has worked on major projects like Civic Park at Hemisfair. “Aside from the politics, I’m glad it’s getting attention. This is a good conversation to have.”
The question for many remains, whose responsibility is it to keep workers safe in the heat: the federal government, cities, private industry — or all of the above?
“The commercial construction industry is at the forefront of this,” said Lauren Mandel, president of the San Antonio chapter of the American General Contractors, which sat on a task force assembled by the city to hammer out local heat regulations. “We start talking about the heat in January. It’s a culture within our companies in San Antonio, protecting their workers from the heat.”
The proposed federal rules appear to codify what companies are already doing, Mendel said, to a point.
The national organization would also like to see the rules be regionally specific, a nuance they worry could be lost in conversations about how to write overarching rules to combat heat illnesses across the country.
“Ninety degrees in Seattle is not the same as 90 degrees in San Antonio,” she said. Yet the San Antonio chapter opposed the local ordinance, which is based on this region’s climate.
Against the backdrop of that debate, construction is underway all day every day on local roadways, skylines and along San Antonio’s outer reaches at the same time that heat-related deaths are already on the rise.
In 2023, a record 334 people died from heat-related causes in Texas, the third year in a row heat deaths set a record, according to data from the Texas Department of State Health Services compiled by the Texas Tribune. At least 42 workers have died from heat-related causes between 2011 and 2021, according to the Tribune.
Heat deaths are rising nationwide, in part because heat waves are now more frequent and last longer than they did in the past, according to an Environmental Protection Agency report released this month. Texas State Climatologist John Nielsen-Gammon estimates the average temperature across Texas in 2036 will rise about 3 degrees above average compared to the last half-century.
Yet the magnitude of the problem is likely underreported, because heat-related deaths and injuries are often recorded based on primary symptoms, such as pulmonary issues, according to recent reporting on the rise of heat-related health emergencies in The New York Times.
The issue particularly affects Hispanic workers, who represent six out of every 10 construction workers, according to U.S. Census Bureau data. Since 2010, Hispanic workers have accounted for a third of all heat fatalities nationwide, according to a 2021 investigation by a consortium of media groups. That’s almost twice their representation in the U.S. workforce.
Construction isn’t the only industry that relies on outdoor workers.
Landscaping, road work, postal delivery, agriculture and hospitality all rely to varying degrees on outdoor work, and heat safety rules — and their enforcement — aren’t consistent.
Those who don’t work for companies with strong heat safety policies or enforcement may be fearful of speaking up to insist on a water break, or may not be aware of the warning signs of heat illness.
Local interventions
Last year, the City of San Antonio joined other Texas cities in attempting a policy approach to the problem by passing a local ordinance that would require all companies with outdoor workers to offer regular water and shade breaks.
But as City Council debated the measure, Gov. Greg Abbott was poised to sign House Bill 2127, dubbed the “Death Star” bill, which would restrict cities’ abilities to pass laws that exceeded those at the state level and allow private individuals and businesses to sue cities for violating the law.
Texas has no laws on the books that specifically protect workers from heat illness; two bills filed during the same session attempting to do so failed.
The same day Abbott signed the bill, a Dallas postal worker delivering mail door-to-door collapsed and later died at a hospital. In summer 2022, a 24-year-old San Antonio construction worker died of heatstroke after being taken to the hospital.
Rather than risk running afoul of the new law, which was immediately challenged in court by San Antonio and other Texas cities, City Council approved a more narrow ordinance, applying only to companies that work on certain city-funded projects.
The new ordinance took effect in September, as outdoor workers toiled through the end of San Antonio’s hottest summer on record, and workers in Austin and Dallas lost the right to breaks that had been put into place by those cities years earlier, despite evidence that they had shown a meaningful impact.
So now, while the proposed federal rules wind their way through the process, outdoor workers in Texas are reliant on whatever policies their employers may have in place — and whether those policies are enforced.