Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2020

II 116TH CONGRESS 2D SESSION S. 4781 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 OCTOBER 1, 2020 Mr. SCHUMER (for Ms. HARRIS (for herself, Mr. BROWN, Ms. BALDWIN, Ms. WARREN, and Mr. MERKLEY)) 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 2020’’. 6 (b) FINDINGS.—Congress finds the following: 7 VerDate Sep 11 2014 01:35 Oct 21, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 2 •S 4781 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 body’s capacity to dispel 13 heat. Impacts range from comparatively minor prob- 14 lems such as heat cramps to severe afflictions such 15 as organ damage, heat exhaustion, stroke, and 16 death. 17 (4) Heat stress and COVID–19 are a combined 18 threat to workers. Respiratory infections, such as 19 COVID–19, and protective equipment, like essential 20 face masks, can increase susceptibility to heat ex- 21 haustion and heat stroke. Many of the symptoms of 22 COVID–19 and heat stress may combine to cause 23 acute illness that is especially deadly. 24 VerDate Sep 11 2014 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 3 •S 4781 IS (5) Jobs at highest risk of heat stress illness 1 and death are disproportionately held by Black and 2 Brown workers, a disparity that reflects the racial 3 injustice inherent in our economic system. 4 (6) Farmworkers and construction workers suf- 5 fer the highest incidence of heat illness, but all out- 6 door and indoor workers employed in excessively hot 7 and humid environments are at significant risk of 8 material impairment of health or functional capacity. 9 (7) Asuncion Valdivia was a California farm- 10 worker who died of heat stroke in 2004 after picking 11 grapes for 10 straight hours in 105 degree tempera- 12 tures. Instead of calling an ambulance, his employer 13 told his son to drive Mr. Valdivia home. On his way 14 home, he started foaming at the mouth and died. 15 (8) 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 (9) 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 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 4 •S 4781 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 (10) 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 (11) 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 (12) 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 (13) 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 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 5 •S 4781 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 standard 5 in 1972, updating it in 1986 and 2016. 6 (14) 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. Employees 11 are exposed to grave danger from exposure to exces- 12 sive heat. The Occupational Safety and Health Ad- 13 ministration must develop a standard to protect 14 workers from the significant risks of heat-related ill- 15 ness 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 of 20 Labor shall, pursuant to section 6(b) of the Occupational 21 Safety and Health Act of 1970 (29 U.S.C. 655(b)), pro- 22 mulgate a proposed standard on prevention of occupa- 23 tional exposure to excessive heat. 24 VerDate Sep 11 2014 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 6 •S 4781 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 4; 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 not 18 later than 2 years after the date of enactment of 19 this Act, the Secretary of Labor shall promulgate an 20 interim final standard on prevention of occupational 21 exposure to excessive heat not later than 2 years and 22 60 days after such date of enactment— 23 (A) to require covered employers to develop 24 and implement a comprehensive workplace ex- 25 VerDate Sep 11 2014 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 7 •S 4781 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 with re- 11 spect to exposure limits that trigger action 12 to protect covered employees from heat-re- 13 lated illness, hydration, scheduled and paid 14 rest breaks in shaded or climate-controlled 15 spaces, an acclimatization plan, exposure 16 monitoring, and other measures to prevent 17 exposure to heat above safe limits, em- 18 ployee and supervisor training, hazard no- 19 tification, an emergency medical response 20 plan, heat-related surveillance, record- 21 keeping, and procedures for compensating 22 piece rate workers for required heat-related 23 rest breaks; 24 VerDate Sep 11 2014 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 8 •S 4781 IS (iii) take into consideration the 1 NIOSH Criteria for a Recommended 2 Standard: Occupational Exposure to Heat 3 and Hot Environments published by the 4 National Institute for Occupational Safety 5 and Health in 2016; and 6 (iv) include a requirement to protect 7 employees from discrimination or retalia- 8 tion for exercising the rights of the em- 9 ployees under the interim final standard. 10 (2) APPLICABILITY OF OTHER STATUTORY RE- 11 QUIREMENTS.—The following shall not apply to the 12 promulgation of the interim final standard under 13 this subsection: 14 (A) The requirements applicable to occupa- 15 tional safety and health standards under section 16 6(b) of the Occupational Safety and Health Act 17 of 1970 (29 U.S.C. 655(b)). 18 (B) The requirements of section 553(c) of 19 chapter 5 and chapter 6 of title 5, United 20 States Code. 21 (C) The requirements of the National En- 22 vironmental Policy Act of 1969 (42 U.S.C. 23 4321 et seq.). 24 VerDate Sep 11 2014 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 9 •S 4781 IS (3) EFFECTIVE DATE OF INTERIM STAND- 1 ARD.—The interim final standard shall— 2 (A) take effect on a date that is not later 3 than 30 days after the promulgation of such 4 standard, except that such interim final stand- 5 ard may include a reasonable phase-in period 6 for the implementation of required engineering 7 controls that take effect after such date; 8 (B) be enforced in the same manner and 9 to the same extent as any standard promul- 10 gated under section 6(b) of the Occupational 11 Safety and Health Act of 1970 (29 U.S.C. 12 655(b)); and 13 (C) be in effect until the final standard de- 14 scribed in subsection (b) becomes effective and 15 enforceable. 16 SEC. 3. DEFINITIONS. 17 In this Act: 18 (1) COVERED EMPLOYEE.—The term ‘‘covered 19 employee’’ includes an individual employed by a cov- 20 ered employer. 21 (2) COVERED EMPLOYER.—The term ‘‘covered 22 employer’’— 23 (A) means an employer that employs an 24 individual to work at a covered workplace; and 25 VerDate Sep 11 2014 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 10 •S 4781 IS (B) includes a contractor, subcontractor, a 1 temporary service firm, or an employee leasing 2 entity. 3 (3) COVERED WORKPLACE.—The term ‘‘covered 4 workplace’’ includes a workplace with occupational 5 exposure to excessive heat. 6 (4) EMPLOYER.—The term ‘‘employer’’ has the 7 meaning given the term in section 3 of the Occupa- 8 tional Safety and Health Act of 1970 (29 U.S.C. 9 652). 10 (5) EXCESSIVE HEAT.—The term ‘‘excessive 11 heat’’ includes outdoor or indoor exposure to heat at 12 levels that exceed the capacities of the body to main- 13 tain normal body functions and may cause heat-re- 14 lated injury, illness, or fatality (including heat 15 stroke, heat exhaustion, heat syncope, heat cramps, 16 or heat rashes). 17 (6) SECRETARY.—The term ‘‘Secretary’’ means 18 the Secretary of Labor. 19 SEC. 4. REQUIREMENTS FOR FINAL STANDARD ON PRE- 20 VENTION OF OCCUPATIONAL EXPOSURE TO 21 EXCESSIVE HEAT. 22 (a) IN GENERAL.—The final standard promulgated 23 under section 2(b) shall, at a minimum— 24 VerDate Sep 11 2014 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 11 •S 4781 IS (1) take into consideration the NIOSH Criteria 1 for a Recommended Standard: Occupational Expo- 2 sure to Heat and Hot Environments published by 3 the National Institute for Occupational Safety and 4 Health in 2016; 5 (2) establish requirements with respect to expo- 6 sure limits that trigger action to protect covered em- 7 ployees from heat-related illness, hydration, sched- 8 uled and paid rest breaks in shaded or climate-con- 9 trolled spaces, an acclimatization plan, exposure 10 monitoring, and other measures to prevent exposure 11 to heat above safe limits, employee and supervisor 12 training, hazard notification, medical monitoring, an 13 emergency medical response plan, heat-related sur- 14 veillance recordkeeping, procedures for compensating 15 piece rate workers for required heat-related rest 16 breaks, and a heat prevention plan; and 17 (3) include the requirements described in sub- 18 section (b) with respect to covered employers. 19 (b) REQUIREMENTS.—The final standard promul- 20 gated under section 2(b) shall, with respect to covered em- 21 ployers, include the following: 22 (1) HEAT ILLNESS PREVENTION PLANS.— 23 (A) IN GENERAL.—A covered employer 24 shall develop, implement, and maintain an ef- 25 VerDate Sep 11 2014 00:32 Oct 18, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4781.IS S4781 ctelli on DSK11ZRN23PROD with BILLS 12 •S 4781 IS fective, written excessive heat illness prevention 1 plan for covered employees, which shall— 2 (i) be developed and implemented with 3 the meaningful participation of covered 4 employees and, where applicable, employee 5 representatives and collective bargaining 6 representatives, for all aspects of the plan; 7 (ii) be tailored and specific to hazards 8 in the covered workplace; 9 (iii) be in writing, in English and in 10 the language understood by a majority of 11 the employees, if such language is not 12 English; and 13 (iv) be made available, upon request, 14 to such employees, the employee represent- 15 atives for such employees, and the Sec- 16 retary. 17 (B) PLAN CO [Text truncated for display. 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