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Local Heat Protection Rules for Outdoor Workers Face Opposition in Texas and Florida

May 22, 2023May 22, 2023

Texas, California and Florida are the three biggest states ranked by construction employment, with more than 275,000 non-self-employed construction workers between them, according to 2022 data from the U.S. Bureau of Labor Statistics (BLS).

But, of the top three, only second-ranked California requires contractors to implement heat-illness prevention measures to protect construction workers from extreme daytime temperatures. Among other rules, a 10-minute cool-down break every two hours for California construction workers is required when temperatures reach or exceed 95 degrees.

That’s happening more often, and for longer periods, as this summer’s brutal and extended heat waves attest to. Despite the current heat — and the prospect for even hotter temperatures ahead as climate change unfolds — a legislative push for new state standards to protect outdoor laborers from hot weather failed this year in both Texas and Florida. Many contractors and construction trade groups oppose such regulation, arguing that it’s cumbersome and unnecessary — and in some cases overlaps with federal rules already in place — in an already challenging labor market.

With the threat of extreme heat omnipresent in recent weeks, the White House announced on July 27 that, at President Joe Biden’s request, the Department of Labor will begin issuing a new heat hazard alert. The department will also increase enforcement of heat-safety violations by conducting more inspections in high-risk industries, including construction. Even with enforcement, however, the federal mandate is limited by the department’s vague “general duty” to protect workers from hot-weather hazards.

Absent clear federal or state rules with heat-specific protections for construction workers and other outdoor laborers, it’s been left to downstream municipalities to fill in the gaps. City and county authorities in Texas and Florida have worked to set local standards, but, in both states, the local rules could be thwarted. A new Texas law would nullify ordinances in Austin and Dallas that mandate rest breaks for outdoor workers exposed to extreme heat, while a Miami-Dade County ordinance with preliminary approval may not win final approval, and if it does may face a legal challenge

The Miami-Dade ordinance requires employers in the construction and agriculture industries to protect their workers through a heat-illness prevention program that would mandate water breaks and recovery time from possible overexertion. It may become the only municipal ordinance of its kind in the United States if the new Texas law survives a lawsuit and nullifies similar ordinances in Austin and Dallas.

Sandra Asensio of Florida City, an outdoor worker in Florida for 18 years, spoke in favor of the Miami-Dade ordinance at a July 18 meeting of the county commission, which approved it on first reading at the same meeting. “I am a heat stroke survivor,” Asensio said, speaking in Spanish with an English translator. “I have some co-workers who didn’t make it, who died from heat stroke. … We need some protections.”

But, if enacted, the proposed Miami-Dade ordinance could face a lawsuit from the construction industry. In 2008, the Florida East Coast chapter of construction trade group Associated Builders and Contractors (ABC) successfully sued Miami-Dade to prevent the county from enforcing a local ordinance regulating the use of tower cranes on construction sites.

“We’re not happy with the Miami-Dade [heat safety] ordinance, quite frankly. But we haven’t decided whether to sue them yet, like we did on the crane ordinance,” Peter Dyga, president of the Florida East Coast chapter of ABC, told Commercial Observer.

The Occupational Health and Safety Administration, or OSHA, already had federal tower-crane regulations in place when Miami-Dade passed its county crane ordinance. “We won in federal court precisely for that reason,” Dyga said, “because it’s already regulated by the federal government.”

The crane ordinance also raised the possibility of the spread of different county crane standards throughout Florida, undermining regulatory uniformity across the state’s 67 counties. “You can imagine as a business owner having to comply with 67 different ones,” Dyga said.

The pending Miami-Dade ordinance to create a hot-weather labor standard is similarly duplicative, Dyga said. “You have, again, an OSHA standard,” he said. “If you’ve got one level of government, the federal government, with a good standard, we really don’t need the state government or local governments duplicating that regulation. And that’s really what was going on here.”

OSHA regulations include a “general duty” standard that requires employers to protect their workers from known workplace hazards. OSHA doesn’t have specific rules to protect workers from heat illnesses, but the agency has issued a notice of proposed rulemaking to develop such rules.

“They are working toward it, it’s just unknown how long that might take,” said Jane Gilbert, chief heat officer of Miami-Dade County, who helped craft the ordinance.

In the meantime, county commissioners are expected to vote at the second and final hearing in September or October on the pending Miami-Dade ordinance, which would establish a hot-weather labor standard for employers with at least five employees in construction and agriculture. Affected employers would be required to provide water free of charge to employees and to inform supervisors and employees about the risks of heat illness, the symptoms, and the appropriate first aid.

Mandated supervisory procedures when the outdoor heat index tops 90 degrees Fahrenheit include reminding employees at least once every two hours to drink water throughout the day; ensuring that every employee takes a 10-minute break in a shaded area after every two hours spent working outside; and allowing any employee showing signs of heat illness to stop working and spend at least 15 minutes in a shaded recovery area.

The pending Miami-Dade ordinance also requires affected employers to inform individual workers and post notices — in English, Spanish and Creole — about outdoor workers’ rights regarding protection from heat. Public service announcements emphasize caution and readiness during the so-called “heat season” from May through October.

“The idea with the heat season campaign is to raise awareness and preparedness to the level of what we do with hurricane preparedness,” Gilbert said.

Fines against employers would range up to $1,000 per violation for repeated failures to properly inform workers or post notices; up to $2,000 per violation for repeated failures to provide either drinking water or shade to employees; and up to $3,000 per violation for repeated retaliation against employees who come forward to seek relief under the ordinance. In addition, companies with county contracts could face debarment for violations of the ordinance.

“I think it would be the strongest heat protection ordinance passed in this country to date, if passed as is,” Gilbert said. “Because it includes language around enforcement, which the other ones don’t.”

Earlier this year, Florida’s Republican-led legislature stopped in committee a bill requiring certain employers to implement an outdoor heat exposure safety program. “They outnumbered us in committee and killed the bill,” said Sen. Victor M. Torres Jr., a Democrat from Kissimmee.

Among other protections, the proposal (Senate Bill 706) would have required employers to give outdoor workers a 10- or 15-minute break every two hours “They need these jobs. Working people won’t speak up for themselves,” he said. “We have to speak up on their behalf and let the industry know we’re watching them.”

Torres believes a state agency would do a better job of enforcing a hot-weather labor standard than the Occupational Safety and Health Administration. “OSHA is not really standing up for workers,” he said. “You tell me how many workers out there will call OSHA to complain. Who’s going to call OSHA? Nobody. That’s the issue.”

The possible approval of a hot-weather labor standard in Miami-Dade County is remarkable, Torres said, because Florida’s state government has severely limited local authority in recent years in areas such as rent control, local zoning, COVID response and ESG-related investments.

“In Florida, we have so many pre-emptions on city ordinances and county ordinances that they eliminate a lot of what a city or county can enforce,” he said.

Similar preemptive measures by the Texas state government have limited what counties and cities in the Lone Star State can control — which is what’s at issue in the question of heat protections. In June, Texas Gov. Greg Abbott signed into law House Bill 2127, also known as the Texas Regulatory Consistency Act. The new law, scheduled to take effect Sept. 1, limits the power of cities and counties to enact and enforce local regulations that conflict with state regulations across a variety of areas. The law specifically bars cities and counties from enforcing hot-weather labor standards to protect outdoor workers, which would effectively eliminate such local protections in Austin and Dallas.

“They specifically mentioned the water breaks and rest breaks as part of the list of ordinances that a city could not pass,” said state Rep. Terry Meza, a Democrat from Irving, a suburb of Dallas. “It’s kind of a battle between our state government and the major cities that have these ordinances. The state doesn’t want them. … Our urban cities are Democratic-led, for the most part, so sometimes that’s an aggravation for our [Republican] leadership.”

However, the Texas Regulatory Consistency Act is already the target of a lawsuit. Two Texas cities, Houston and San Antonio, are plaintiffs in the suit alleging that the pre-emption law violates the state’s constitution.

“The Texas constitution allows home-rule cities wide powers, so there is a question of whether or not this legislation contradicts the constitution,” said Texas Rep. Maria Luisa “Lulu” Flores, a Democrat from Austin.

Flores this year unsuccessfully promoted a bill to establish a statewide board in Texas to develop a hot-weather labor standard, penalize violators, and educate the public on the danger of extreme heat. “It would also say that employers are prevented from retaliating against employees who report a heat illness,” she said.

“It didn’t get a hearing, and I’m very disappointed, because the state has actually said that it doesn’t want conflicting standards in local jurisdictions, that we would rather have statewide standards. But we have none.”

No statewide standard would be flexible enough for the construction industry, said Geoffrey Tahuahua, president of Associated Builders and Contractors of Texas.

“If everyone has to take a 10-minute break every four hours, that’s not practical and not even safe,” he said. “On a lot of job sites, you’re talking about 200 or 300 or more workers. Having everyone take a break at the same time, there’s a lot of logistics with that. Plus, you’re leaving heavy equipment potentially completely unattended, and that itself becomes a hazard. For us, it’s really about the flexibility.”