Virginia Nixes Effort to Issue Heat Safety Rules for Workers

In a surprising move, Virginia regulators voted narrowly to reject a standard to protect workers from extreme heat, two years after they initiated the rulemaking process with a unanimous decision.

Virginia Safety and Health Codes Board members voted 6-5 last week to end that process, after a panel they’d appointed presented them with a proposed rule. The decision frustrated worker safety advocates who have long pushed states to protect workers from extreme heat. 

“It was clear that minds had been made up long before they walked into that room,” said Juley Fulcher, worker health and safety advocate with Public Citizen, a consumer advocacy nonprofit based in Washington, D.C. “None of the testimony mattered.”

But opponents of the Virginia proposal noted that the federal Occupational Safety and Health Administration has begun its own rulemaking process on heat standards that will apply nationwide, arguing that the state does not need a separate rule.

Fulcher served on the 40-person panel appointed by the state. The group comprised labor leaders, business officials and health experts.

The panel’s proposed standard would have required employers to provide water and rest breaks at certain temperature thresholds, with mandates for shaded or cooled rest areas. While the Safety and Health Codes Board had voted unanimously to initiate the process in 2019, Fulcher said Democratic Gov. Ralph Northam has since stacked that board with industry-friendly members. Northam has not commented publicly on the decision.

Even so, labor advocates expected the group to advance the proposal, with several more steps remaining before it would take effect. But on the day of the vote, some board members cited a little-known rule that precluded members from voting virtually two meetings in a row. Several board members who were not physically in attendance had been unaware that would prevent them from voting, Fulcher said. 

Ultimately, three members missed the vote, which Fulcher believes changed the outcome of the decision.

While the vote was an unexpected setback, labor advocates already were anticipating that Gov.-elect Glenn Youngkin, a Republican, would not allow the rule to take effect.

Fulcher said the federal rulemaking process takes an average of seven to eight years to issue a standard, and there’s no guarantee those efforts will continue if President Joe Biden is defeated in the next election.

“States can get it done faster and get their workers protected,” she said. “This can get stopped or weakened at the federal level.”

Oregon and Washington issued emergency heat rules earlier this year after a heat wave in the Northwest caused hundreds of deaths, including an Oregon farmworker who died on the job. California was the first state to enact heat standards in 2005, while Minnesota has heat rules for indoor workers only. 

A joint report published by NPR and Columbia Journalism Investigations found that at least 384 workers died from environmental heat exposure in the past decade. Labor advocates say that extreme heat events caused by climate change are likely to worsen the problem in the years to come.