Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1068 To direct the Occupational Safety and Health Administration to issue an occupational safety and health standard to protect workers from heat- related injuries and illnesses. IN THE SENATE OF THE UNITED STATES APRIL 12, 2021 Mr. BROWN (for himself, Mr. PADILLA, Mr. MERKLEY, Ms. WARREN, Ms. CORTEZ MASTO, and Ms. BALDWIN) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To direct the Occupational Safety and Health Administration to issue an occupational safety and health standard to protect workers from heat-related injuries and illnesses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE AND FINDINGS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Asuncion Valdivia Heat Illness and Fatality Prevention 5 Act of 2021’’. 6 (b) FINDINGS.—Congress finds the following: 7 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1068 IS (1) Excessive heat exposure poses a direct 1 threat to workers and the economy. Climate change 2 increases this danger, as 19 of the 20 hottest years 3 on record have occurred since 2001. Rising tempera- 4 tures are projected to cause an increase in heat-re- 5 lated workplace injuries and illnesses, a dramatic 6 loss in labor capacity, and decreased productivity. 7 (2) On average, 3 times as many people die 8 from extreme heat in the United States each year 9 than from hurricanes, floods, and tornadoes com- 10 bined. 11 (3) Heat-related illnesses can arise when high 12 temperatures rise above the capacity of the body to 13 dispel heat. Impacts range from comparatively minor 14 problems such as heat cramps to severe afflictions 15 such as organ damage, heat exhaustion, stroke, and 16 death. 17 (4) Heat stress and COVID–19 are individually 18 dangerous to workers and can interact, making some 19 work environments especially hazardous. Respiratory 20 infections, such as COVID–19, and the use of pro- 21 tective equipment, like face and skin coverings, can 22 increase susceptibility to heat exhaustion and heat 23 stroke. Moreover, the symptoms of heat stress and 24 respiratory illnesses may overlap in ways that exac- 25 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1068 IS erbate the diagnosis and pathophysiology related to 1 these potentially fatal conditions. 2 (5) The current scientific evidence, rate of vac- 3 cine production and distribution, racial and socio- 4 economic inequities in vaccine access, mistrust of 5 science messengers, and levels of international and 6 national preparedness, indicate it will take months 7 to years to achieve herd immunity from COVID–19. 8 Moreover, only long-term study will reveal if vaccines 9 sufficiently protect communities from all strains of 10 this coronavirus. Accordingly, workplaces must con- 11 tinue to guard against COVID–19 and other com- 12 municable illnesses well into the future, especially in 13 high-density workplaces that expose employees to 14 stressors that include unhealthy levels of heat. 15 (6) Jobs at highest risk of heat stress illness 16 and death are disproportionately held by Black and 17 Brown workers, a disparity that reflects the racial 18 injustice inherent in our economic system. 19 (7) Farmworkers and construction workers suf- 20 fer the highest incidence of heat illness, but all out- 21 door and indoor workers employed in excessively hot 22 and humid environments are at significant risk of 23 material impairment of health or functional capacity. 24 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1068 IS (8) Asuncion Valdivia was a California farm- 1 worker who died of heat stroke in 2004 after picking 2 grapes for 10 straight hours in 105 degree tempera- 3 tures. Instead of calling an ambulance, his employer 4 told his son to drive Mr. Valdivia home. On his way 5 home, he started foaming at the mouth and died. 6 (9) While heat stress is often associated with 7 outdoor jobs, some indoor workers are also at risk 8 from dangerously high temperatures. Indoor heat 9 stress is prevalent in enclosed workplaces without 10 climate control or adequate ventilation, such as 11 warehouses and factories, and workplaces with heat- 12 generating machinery such as steel mills, electrical 13 utilities, bakeries, commercial kitchens, and laun- 14 dries. 15 (10) People working in excessive heat suffer di- 16 minished mental acuity and physical ability, which 17 increases the risk of accidents. Heat-related injuries 18 and illnesses increase workers’ compensation costs 19 and medical expenses. 20 (11) The costs of lower labor productivity under 21 rising temperatures is estimated to reach up to 22 $160,000,000,000 in lost wages per year in the 23 United States by 2090 according to the 2018 Na- 24 tional Climate Assessment. The drop in productivity 25 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1068 IS decreases income for employers and workers. Global 1 gross domestic product losses from heat are pro- 2 jected to be greater than 20 percent by the end of 3 this century. 4 (12) Every year, thousands of workers become 5 sick and some die from exposure to heat. Between 6 1992 and 2017, 815 United States workers died 7 from heat and almost 70,000 were seriously injured. 8 These numbers are generally understood to be gross 9 undercounts because many heat-related illnesses and 10 deaths are blamed on natural causes. 11 (13) Workers have a legal right to a safe work- 12 place. The vast majority of heat-related workplace 13 deaths and illnesses can be prevented by access to 14 water, rest, and shade. Many employers don’t pro- 15 vide these simple measures for workers according to 16 the Occupational Safety and Health Administration. 17 (14) Employers often retaliate against employ- 18 ees if they report or seek assistance due to problems 19 with heat. Many employees are therefore afraid to 20 report problems and face increased risk of heat-re- 21 lated illnesses or death. 22 (15) In the absence of a Federal standard, mul- 23 tiple branches of the United States Armed Forces— 24 including the Army, Navy, Marine Corps, and Air 25 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1068 IS Force—have issued heat prevention guidelines, and 1 several States—California, Washington, and Min- 2 nesota—have issued heat prevention standards. The 3 National Institute for Occupational Safety and 4 Health (‘‘NIOSH’’) issued criteria for such a stand- 5 ard in 1972, updating it in 1986 and 2016. 6 (16) Congress created the Occupational Safety 7 and Health Administration to ensure safe and 8 healthful working conditions by setting and enforc- 9 ing standards pursuant to section 6 of the Occupa- 10 tional Safety and Health Act of 1970 (29 U.S.C. 11 655). Employees are exposed to grave danger from 12 exposure to excessive heat. The Occupational Safety 13 and Health Administration must develop a standard 14 to protect workers from the significant risks of heat- 15 related illness and death. 16 SEC. 2. OSHA SAFETY STANDARD FOR EXPOSURE TO HEAT 17 AND HOT ENVIRONMENTS. 18 (a) PROPOSED STANDARD.—Not later than 2 years 19 after the date of enactment of this Act, the Secretary 20 shall, pursuant to section 6(b) of the Occupational Safety 21 and Health Act of 1970 (29 U.S.C. 655(b)), promulgate 22 a proposed standard on prevention of occupational expo- 23 sure to excessive heat. 24 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1068 IS (b) FINAL STANDARD.—Not later than 42 months 1 after the date of enactment of this Act, the Secretary shall 2 promulgate a final standard on prevention of occupational 3 exposure to excessive heat that shall— 4 (1) provide no less protection than the most 5 protective heat prevention standard adopted by a 6 State plan that has been approved by the Secretary 7 under section 18 of the Occupational Safety and 8 Health Act of 1970 (29 U.S.C. 667) and, at a min- 9 imum, include the requirements described in section 10 3; and 11 (2) be effective and enforceable in the same 12 manner and to the same extent as any standard pro- 13 mulgated under section 6(b) of the Occupational 14 Safety and Health Act of 1970 (29 U.S.C. 655(b)). 15 (c) INTERIM FINAL STANDARD.— 16 (1) IN GENERAL.—If the proposed standard de- 17 scribed in subsection (a) is not promulgated within 18 2 years after the date of enactment of this Act, the 19 Secretary shall promulgate an interim final standard 20 on prevention of occupational exposure to excessive 21 heat not later than 2 years and 60 days after such 22 date of enactment— 23 (A) to require covered employers to develop 24 and implement a comprehensive workplace ex- 25 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1068 IS cessive heat prevention plan to protect covered 1 employees from excessive heat that may lead to 2 heat-related injuries and illnesses; and 3 (B) that shall, at a minimum— 4 (i) provide no less protection than the 5 most protective heat prevention standard 6 adopted by a State plan that has been ap- 7 proved by the Secretary under section 18 8 of the Occupational Safety and Health Act 9 of 1970 (29 U.S.C. 667); 10 (ii) establish requirements for covered 11 employers with respect to— 12 (I) exposure limits that trigger 13 action to protect covered employees 14 from heat-related illness; 15 (II) hydration; 16 (III) scheduled and paid rest 17 breaks in shaded or climate-controlled 18 spaces; 19 (IV) an acclimatization plan; 20 (V) exposure monitoring, and 21 other measures to prevent exposure to 22 heat above safe limits; 23 (VI) covered employee and super- 24 visor training; 25 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1068 IS (VII) hazard notification; 1 (VIII) an emergency medical re- 2 sponse plan; 3 (IX) heat-related surveillance rec- 4 ordkeeping; and 5 (X) procedures for compensating 6 covered employees paid on a piece rate 7 basis for required heat-related rest 8 breaks; 9 (iii) take into consideration the Cri- 10 teria for a Recommended Standard: Occu- 11 pational Exposure to Heat and Hot Envi- 12 ronments published by the National Insti- 13 tute for Occupational Safety and Health in 14 2016; and 15 (iv) include a requirement to protect 16 covered employees of covered employers 17 from discrimination or retaliation for exer- 18 cising the rights of covered employees 19 under the interim final standard. 20 (2) APPLICABILITY OF OTHER STATUTORY RE- 21 QUIREMENTS.—The following shall not apply to the 22 promulgation of the interim final standard under 23 this subsection: 24 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1068 IS (A) The requirements applicable to occupa- 1 tional safety and health standards under section 2 6(b) of the Occupational Safety and Health Act 3 of 1970 (29 U.S.C. 655(b)). 4 (B) The requirements of section 553(c) of 5 chapter 5 and chapter 6 of title 5, United 6 States Code. 7 (C) The requirements of the National En- 8 vironmental Policy Act of 1969 (42 U.S.C. 9 4321 et seq.). 10 (3) EFFECTIVE DATE OF INTERIM STAND- 11 ARD.—The interim final standard shall— 12 (A) take effect on a date that is not later 13 than 30 days after the promulgation of such 14 standard, except that such interim final stand- 15 ard may include a reasonable phase-in period 16 for the implementation of required engineering 17 controls that take effect after such date; 18 (B) be enforced in the same manner and 19 to the same extent as any standard promul- 20 gated under section 6(b) of the Occupational 21 Safety and Health Act of 1970 (29 U.S.C. 22 655(b)); and 23 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1068 IS (C) be in effect until the final standard de- 1 scribed in subsection (b) becomes effective and 2 enforceable. 3 SEC. 3. REQUIREMENTS FOR FINAL STANDARD ON PRE- 4 VENTION OF OCCUPATIONAL EXPOSURE TO 5 EXCESSIVE HEAT. 6 (a) IN GENERAL.—The final standard promulgated 7 under section 2(b) shall, at a minimum— 8 (1) take into consideration the Criteria for a 9 Recommended Standard: Occupational Exposure to 10 Heat and Hot Environments published by the Na- 11 tional Institute for Occupational Safety and Health 12 in 2016; 13 (2) establish requirements for covered employ- 14 ers with respect to— 15 (A) exposure limits that trigger action to 16 protect covered employees from heat-related ill- 17 ness; 18 (B) hydration; 19 (C) scheduled and paid rest breaks in 20 shaded or climate-controlled spaces; 21 (D) an acclimatization plan; 22 (E) exposure monitoring, and other meas- 23 ures to prevent exposure to heat above safe lim- 24 its; 25 VerDate Sep 11 2014 01:32 Apr 27, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1068.IS S1068 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1068 IS (F) covered employee and supervisor train- 1 ing; 2 (G) hazard notification; 3 (H) medical monitoring; 4 (I) an emergency medical response plan; 5 (J) heat-related surveillance recordkeeping; 6 (K) procedures for compensating covered 7 employees paid on a piece rate basis for re- 8 quired heat-related rest breaks; and 9 (L) a heat prevention plan; and 10 (3) include the requirements described in sub- 11 section (b) with respect to covered employers. 12 (b) REQUIREMENTS.—The final standard promul- 13 gated under section 2(b) shall, with respect to covered em- 14 ployers, include the following: 15 (1) HEAT ILLNESS PREVENTION PLANS.— 16 (A) IN GENERAL.—A covered employer 17 shall develop, implement, and maintain an ef- 18 fective, written excessive heat illness prevention 19 plan for covered employees of the covered em- 20 ployer, which shall— 21 (i) for all aspects of the plan, be de- 22 veloped and imp [Text truncated for display. 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