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CAROLINA JOURNAL: Luke Farley Fights Joe Biden's New Regulation

Biden wants federal heat-stress regulations. Let’s make sure cooler heads prevail

By LUKE FARLEY, originally published in the Carolina Journal.

The hottest issue in workplace safety is whether the Occupational Safety and Health Administration (OSHA) under Joe Biden will impose a new “heat stress” regulation on American businesses. But a new federal regulatory scheme isn’t necessary and will hurt our economy more than it helps workers.

A heat-stress regulation would establish new rules for working in the “heat.” The push for a heat regulation is part of a larger liberal agenda that conveniently dovetails with climate alarmism. The AFL-CIO has been explicit about the link, writing in 2022 that as the “global temperature rises, workers are even more at risk for occupational heat exposures.” That alone is reason to treat the regulation with a healthy dose of skepticism.

In August 2023, OSHA issued a framework to give stakeholders a sense of what the heat-stress regulation might ultimately look like. The framework is heavy on concepts but light on details, so the final rule could be even worse than what’s been previewed.

Among things OSHA might require as part of the heat-stress standard:

  • daily monitoring of weather conditions by either (a) tracking local forecasts or (b) measuring the temperature at the worksite on a periodic basis;

  • requiring 15-minute breaks for every 2 hours of work, resulting in an hour of lost work time per employee per day;

  • providing a “cool-down area” at the worksite that might include cooling fans, misting machines, or even air-conditioned trailers;

  • ensuring that drinking water maintains a certain temperature (OSHA already has regulations that require employers to provide drinking water);

  • creating limited work schedules until employees are properly acclimatized (e.g., day one: heat exposure restricted to 20% of normal duration, day two: heat exposure restricted to 40%, and so on);

  • and keeping records of worksite temperatures and a log of all efforts to acclimatize employees (yes, more paperwork).

When would employers have to implement these measures? Falling under the category of “You Can’t Make this Stuff Up,” the proposed regulation has a “heat trigger” of just 76 degrees. Good luck getting any work done in North Carolina from April to October.

In a country as big as ours with so many varied climates, a one-size-fits-all approach to heat safety is unworkable. Heat doesn’t affect everyone equally. Factors like health, physical fitness, age, prescription medications, and even caffeine intake each affect how our body responds to heat stress. The federal framework doesn’t account for these individualized factors.

For obvious reasons, agriculture and construction will be the industries hit hardest by a new OSHA heat regulation. The cost of implementing these regulations will invariably be passed on to consumers. It’s already expensive enough to put food on the table or to buy a house without baking in the cost of Biden’s proposed heat-stress regulations.

Proponents of new heat-stress regulations present us with a choice — either adopt expansive new heat-stress regulations or leave workers totally unprotected. But that’s a false dichotomy. Of course, we need to protect workers from the heat, but we don’t need a new set of burdensome regulations to do it.

We already have a robust legal tool in place to keep workers safe: the so-called “General Duty Clause” of the Occupational Safety and Health Act. In addition to countless regulations governing the minutiae of workplace safety, the act also imposes a general duty on employers to provide a workplace “free from recognized hazards … likely to cause death or serious physical harm …. ” For years, employers have been cited under the General Duty Clause when they did not reasonably protect workers from the heat.

The General Duty Clause allows for common-sense flexibility in dealing with heat. Heat is an obvious problem, and the best way to protect against heat injury is to be sure employees understand the signs and symptoms of heat illness and provide ample water, shade, and rest — all things we can do without pages and pages of new federal regulations. And if employers don’t take these reasonable precautions, they can be cited for violating the General Duty Clause.

North Carolina’s Department of Labor will have to respond to any new OSHA heat-stress standard and should use all available legal means to fight this burdensome new regulation. North Carolina is in a good position to do it.

By statute, when federal OSHA creates a new workplace safety regulation, the North Carolina Department of Labor is required to adopt that regulation verbatim, unless they can develop an alternative that is at least as effective as the proposed federal standard. If OSHA ultimately releases a heat-stress standard, the NC Department of Labor must stand ready to propose an alternative that is at least as effective but less burdensome — and go to court to defend it if needed. One obvious alternative is to set heat triggers at temperatures that are actually hot and dangerous, instead of a comfortable 76 degrees.

North Carolina needs to protect its workers without bankrupting businesses in the process. A new, burdensome, expensive, one-size-fits-all federal heat regulation is the wrong way to do it. Instead, we need a flexible, common-sense approach to the problem that protects our workers and their jobs at the same time.

Luke Farley is a Republican candidate for NC Labor Commissioner. An OSHA and construction lawyer in private practice, he's a graduate of UNC-Chapel Hill and Wake Forest University School of Law. He lives in Raleigh with his wife of 10 years and two young sons.


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