CDM’s Comment on OSHA’s Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings

January 14, 2025

 

Occupational Safety and Health Administration

United States Department of Labor 

Submitted via regulations.gov

RE: Docket No. OSHA-2021-0009 Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings (RIN 1218-AD39)

 

1. Introduction

Centro de los Derechos del Migrante, Inc. (CDM) is a binational workers’ rights organization that supports migrant workers to defend their rights as they move between their home communities and their workplaces in the United States. CDM collaborates with workers to transform the power imbalances that harm workers in the temporary visa programs and to ensure that labor migration policies reflect workers’ voices, experiences, and priorities. CDM convenes the Comité de Defensa del Migrante (Migrant Defense Committee), a group of current and former migrant workers. The Comité empowers and organizes migrant workers at work in the United States and in their home communities. The Comité strives to center migrant workers’ perspectives in conversations about policies that affect them.

CDM writes in support of the Occupational Health and Safety Agency’s proposed rule “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.”^[1]  Each year, heat exposure in the workplace causes hundreds of workers to experience illness, hospitalization or even death. Heat-related health effects are not limited to direct harm such as heat exhaustion or heat stroke, but also include injuries like falls from dizziness and exacerbation of kidney disease.

With average temperatures rising higher every year, addressing heat-related occupational hazards is increasingly urgent. Heat hazards disproportionately impact workers in low-wage industries like construction and agriculture, where migrant and immigrant workers make up a majority of the workforce and often lack adequate access to health care. We applaud OSHA’s work in developing and proposing this rule, which will help protect workers from deadly heat hazards once finalized and implemented.

II. Comments on the Proposed Rule

CDM joins in the coalition comment submitted by Farmworker Justice and Migrant Clinicians’ Network, and submits this supplemental comment to provide additional information about key proposals that are of particular interest to CDM and the migrant workers we work alongside.

In preparing this comment, CDM conducted a focus group and interviews with over a dozen current and former H-2A and H-2B workers, including several members of the Comité. The workers who contributed to this comment have worked both indoors and outdoors in various industries throughout the United States, and have direct experience with the hazards OSHA seeks to address in this rule. In light of this experience, the workers we spoke to were generally supportive of and optimistic about the proposed rule, and below provide several suggestions to strengthen it.

A. Paid worker participation in the development and implementation of Heat Injury and Illness Prevention Plans is critical to ensuring that heat safety planning effectively addresses workplace hazards.

OSHA seeks comments on whether the proposed requirement to seek worker input in the development of Heat Illness and Injury Protection Plans (HIIPPs) under paragraph (c)(6)^[2] is adequate.^[3] CDM and workers strongly support this proposal: as OSHA recognizes, workers are the most knowledgeable about workplace hazards, including those related to heat. To ensure meaningful participation, OSHA should require that time workers spend supporting the development and implementation of their employers’ HIIPPs be compensated. An H-2A worker from Texas explained: “it would be good to form groups, where workers could talk and make sure that the employer follows the rules, and workers’ time in these groups would be paid.”^[4] Workers also caution that without safeguards, workers may feel pressure to rubber-stamp employer proposals without truly shaping them. For example, an H-2A worker in Washington noted that his employer had made welcome efforts to seek input on worker safety issues, but that opportunities were missed when these efforts were rushed:

They’ll grab a tractor driver, a harvester, a crew leader to get together every now and then to improve the work conditions . . . These meetings are paid. But what I saw recently was that they don’t have a lot of time—because the employer doesn’t want to pay—so they don’t handle things as deeply as they should. I think that greater focus on this topic is required, because there could be many improvements.

CDM and workers appreciate that OSHA plans to allow employers and workers flexibility to decide what method of feedback works best for them. One of the ideas mentioned in OSHA’s proposed rule is to offer “anonymous suggestion boxes” to receive feedback, alongside more time-intensive methods like meetings or committees. ^[5]  This is a great idea to help maximize the number of workers who could provide input in the development and implementation of the safety plan. As a former H-2B carnival worker who worked various states said, “the more people who can participate, the better.” Workers must also be assured that they will not experience any retaliation for providing input on heat safety in the workplace—and OSHA must take swift and rigorous action in the event that retaliation occurs. As a former H-2A worker in New Mexico described:

I think it’s important that workers be aware that by sharing their opinion [with their employer] under the heat safety rule, this won’t adversely affect them or result in retaliation at their workplace. Freedom of expression shouldn’t affect their employment status, because this could prevent workers from giving input or getting involved in activities related to the HIIPP.^[6]

We also support proposed paragraph (c)(7), which would require employers to review and update their HIIPP plans at least annually, as well as after any significant heat-related injury or illness.  Workers underscore the importance of ensuring consistent worker participation in all aspects of the implementation of the HIIPP, and particularly in reviews after any workplace incidents or accidents, so we welcome OSHA’s proposal to require worker feedback in the review process as well.

Finally, OSHA seeks input on whether to define “employee representative” and, if so, whether non-union employees should be allowed to designate a non-employee third-party as their representative for the purpose of providing input on their employers’ HIIPPs.^[7] We urge OSHA to explicitly allow non-union employees to designate non-employee third-parties as their representatives if wish. Many low-wage workers face barriers to unionization, so many organize with local worker health and safety groups and worker centers, or seek support from other workers’ rights advocates to improve health and safety conditions at their workplaces. It is important to allow workers to involve these external advocates, if they so choose, to assist them in strengthening and implementing their safety plans.

B. Requiring employers to provide paid breaks in shaded, cooler areas with access to cool drinking water will make an important difference to workers’ safety in high heat environments.

CDM and the workers we collaborated with in the preparation of the comment welcome OSHA’s proposal, in paragraph (e)(6) to require employers to provide workers with a fifteen-minute paid rest break at least every two hours after the high heat trigger. This will make a critical difference to workers in high heat environments, and if properly implemented will represent a badly-needed change from the status quo. As a former H-2A worker explained:

I worked in Texas picking squash. I think it was hotter than 100 degrees. We didn’t have breaks, we didn’t have access to shade. We did bring water with us in the truck, but they didn’t give us time to drink it . . .  so we had to work until we were done with the harvest task we were assigned that day. We would go out to the ditches to drink water [out of view of the supervisors] because to the boss, that was money they were losing. So if this [rule] can apply, that would be a big help in situations of extreme heat like that.

The worker’s experience was echoed by that of another former H-2A worker in North Carolina:

Picking tobacco is really intense work. There are basically no breaks. We could only really drink water when we left the field, and that’s not even minutes—it’s seconds. You just drink water and go straight back to work.

Non-agricultural workers in high heat environments also suffer the consequences of denied breaks. A former H-2B carnival worker who has worked in more than 10 states described his experience:

In carnivals, in the summer months, there is no break. You have to work constantly no matter what the temperature. Once, I was working in Maryland in the summer on a really hot day, and a girl from South Africa [another H-2B worker] fainted. Sometimes we would get sick [from the heat], but we just had to take some medicine to try to get better.

In light of these experiences, we celebrate the proposed rest break provisions and provide the following suggestions to strengthen them.

i. To support successful implementation of rest break protections, OSHA must ensure that workers who are paid by the piece are not prejudiced by exercising their rights.

We appreciate OSHA’s attention to the heightened barriers workers who are paid by the piece face to taking rest breaks. Most workers who contributed to this comment were paid by the piece, and rest breaks in their workplaces are generally unpaid and rare. An H-2B crab worker in Maryland put it succinctly: “We don’t take breaks because we are paid by the pound.”

Consistent with the literature OSHA cites, piece-rate workers face two key disincentives to taking rest breaks: 1) they lose money; and 2) they risk being seen as less productive, which may result in adverse employment action in the future.^[8] The proposed rule takes important steps towards addressing the first of these disincentives through the proposed Formula for Heat-Related Rest Break Compensation of Piece-rate Employees.^[9] In response to OSHA’s request for input, we urge OSHA to make this calculation explicit in paragraph (j) of the final rule. We also call on OSHA to strengthen the rule by adding “plus total time for employee to walk to and from break area(s) and total time for employee to doff and don personal protective equipment before and after breaks” to “Total heat-related rest break time” in the formula as it is incorporated. Including this language in the rule itself would ensure that both employees and employers are clear that walking, donning, and doffing time are compensable, even though it is not counted toward rest period time. Finally, OSHA should make clear that the requirement to pay walking and donning and doffing time applies to “if-needed” rest breaks after the initial heat trigger as well.

OSHA acknowledges that workers’ concerns about not being seen as sufficiently productive may impede their ability to exercise their right to breaks. ^[10] This concern is grounded in real risk: CDM regularly hears from H-2 workers in piece-rate workplaces who are told that if they do not keep up with often-rigorous production metrics they may be sent home before the end of their contract or not hired back the following year. As such, we recommend OSHA strengthen the rule by adding safeguards against the risk of retaliation against workers who exercise their rights to if-needed or mandatory rest breaks. For example, OSHA could add a provision stating that employers may not implement productivity standards that directly or indirectly penalize workers for taking heat-related rest breaks, such as a weekly productivity standard that is not adjusted for any mandatory or if-needed rest breaks taken.

ii. OSHA should adopt a clearer standard for when rest breaks are required between the initial heat trigger and the high heat trigger.

While we appreciate the intention of OSHA’s proposed paragraph (e)(8), which would require employers to “allow and encourage employees to take paid rest breaks . . . if needed to prevent overheating” (emphasis added) between the initial heat trigger and the high heat trigger, we are concerned that this provision may not achieve its intended preventative impact. Employers are economically incentivized to consider these rest breaks not necessary: as the Texas H-2A worker described above, “to the boss, that [time workers were on break] was money they are losing.” And we have discussed, workers face several barriers to asserting that a rest break is needed. OSHA itself cites a tragic case where a farmworker died after declining a break on a day that “the heat index ranged from 86 to 112 °F.”^[11] As currently written, the proposed standard would only have mandated rest breaks during part of this day.

To ensure workers can take preventative rest breaks between the initial and high heat triggers, OSHA should consider requiring that workers be relieved of duty and encouraged to take a scheduled rest break of up to 15 minutes every two hours when the temperature is between the initial and high heat trigger, but allow workers to opt out or opt to take a shorter break if they desire. At the very least, OSHA should explicitly require employers to emphasize in the HIIPP and worker trainings that workers have the right to take paid rest breaks if they feel they need them after the initial heat trigger.

• For rest periods to have their intended impact, workers must have access to a cool, shaded space with access to cool drinking water.

CDM and workers welcome OSHA’s standards for break areas, described in paragraphs (e)(3) and (e)(4). In outdoor workspaces, the proposed rule would require that workers be provided with either a shaded break area that is open to the outside air, or an air-conditioned enclosed break area, such as a “trailer, vehicle, or structure.”^[12] OSHA seeks feedback on whether it has appropriately defined “shade” for the purpose of determining whether an adequate break area is provided.^[13] The proposed regulation defines “shade” as “the blockage of direct sunlight, such that objects do not cast a shadow in the area of blocked sunlight.”^[14] While we believe the proposed definition of “shade” is appropriate, we note that implementation of this requirement may not always be as straightforward as it seems. As an H-2A worker in Washington, where a state heat standard was recently implemented, explained:

Starting last year, [my employer] started to put up canopies for breaks. But, what I notice is that the canopy is very small. They tell us to put the water jug in the middle of the shade structure, but since the shade structure is very small, the sun often goes there . . .  Often, we’ll put the water in its place at the beginning of the shift, as we’re instructed, but by the time it gets to break time the water is in the sun. We are 15 people in my crew and we can all fit inside, but the problem is that the sun comes underneath. They give us training and everything but what good is it if by the time we get to have the break, the water is in the sun?

OSHA acknowledges a similar issue as it relates to natural shade, noting that “would need to consider the path of shade movement throughout the day to ensure adequate areas of [natural] shade are maintained.”^[15]  In light of these practical concerns, instead of modifying the definition of “shade,” OSHA should build in supports for implementation to this provision. For example, a former H-2B worker suggested that if a portable canopy is used, the employer should be required to assign an employee to move it as needed throughout the day. This could be a duty of the workplace safety coordinator, or it could be a required element of the HIIPP where employers are using portable shade structures.

CDM and workers additionally welcome the proposed requirement that any indoor or enclosed break spaces be air conditioned. The Texas H-2A worker quoted above explained that when he and his coworkers were given time to eat, they would do so in an indoor space without air conditioning, and as a result found it hard to meaningfully cool down.

Providing consistent access to cool drinking water during breaks will also make an important difference for workers, as would ensuring that cool drinking water is readily accessible during the work day, as proposed in paragraph (e)(2). In response to some of OSHA’s specific requests for feedback, we make the following recommendations to strengthen the protective impact of this provision.

• OSHA requests feedback on whether to require a “specific temperature or ranges of temperature for drinking water,” such as Colorado’s 60°F requirement.^[16] We believe the rule would be strengthened by doing this, as workers note that even where employers provide drinking water, they are consistently inattentive to keeping it cool. As the North Carolina H-2A worker who harvested tobacco explained, “the water coolers are in the trucks in the sun.” The Washington H-2A worker noted that, despite challenges with the water cooler staying shaded, at some worksites the employer put ice in the water coolers, which made a difference. As opposed to the subjective definition of “suitably cool,” a more objective compliance standard would reinforce that employers are responsible for ensuring that the drinking water provided is cool throughout the high temperature periods, not just at the start of the day.
• OSHA asks “[w]hether the agency should require the provision of electrolyte supplements/ solution in addition to water.”^[17] OSHA notes that electrolyte supplements can contain sugar and calories, and that they may not be necessary for all workers.^[18] Nevertheless, OSHA should require employers to provide access to electrolyte supplements in addition to water—individual workers are best positioned to weigh the benefit of rehydration against other nutritional considerations, and can always choose not to use them. Many workers in high heat workplaces feel obligated to purchase their own Gatorade or electrolyte solutions, finding them necessary to stay adequately hydrated. The former H-2B carnival worker who witnessed a coworker’s heat illness in Maryland explained: “When you are sweating a lot, water rehydrates you a little bit, but [my coworkers and I] would also have to buy electrolytes to get through the day. If you just drink water, you won’t get rehydrated enough. This would be my suggestion for OSHA.”

All in all, the proposed rest break and access to water provisions will represent an important improvement for workers.

C. OSHA must prioritize language access by ensuring that workers receive necessary safety plans and training in their own languages in order to create an informed workforce that can advocate for their heat protection rights.

CDM appreciates OSHA’s attention to language access. Many workers in high heat workplaces do not speak English fluently. For example, the 2021–2022 National Agricultural Workers Survey (NAWS) found that about two thirds of farmworkers did not speak or read English well or at all.^[19] Most farmworkers report that Spanish is the language in which they are most comfortable, with a growing minority preferring to speak Indigenous languages from Mexico and Central America, in addition to other languages.^[20] As such, information that is only provided in English is inaccessible to most farmworkers.

Current employer efforts are inadequate to inform workers of the risk of heat injury and illness and to protect workers from these risks. A former H-2B worker in Louisiana who contributed to this comment stated, “I didn’t know anything, I didn’t have any information about this. I didn’t know the difference between golpe de calor (heatstroke) and the normal heat that you feel.” The former H-2B carnival worker who witnessed a coworker’s heat injury in Maryland emphasized the need for this rule:

We’ve gotten information about work instructions in two languages—English and Spanish. But they don’t give us information about safety [in either language]—they’re interested in the rides getting built, but workers’ safety, they don’t pay much attention about that.”

Worker education is a key to ensuring that any worker protection is effective. Training workers on the risks of heat exposure, the HIIPP, and their rights to breaks and water will decrease workers’ risks from heat. However, only workers who understand the risks and their rights can protect themselves. Accordingly, CDM urges OSHA to commit to language access through the following actions:

i. Finalize paragraph (c)(9) (“The HIIPP must be available in a language each employee, supervisor, and heat safety coordinator understands”).

Workers must have a firm understanding of the HIIPP in order to benefit from it, and consistently communicate the need for language access in the context of heat stress. As such, CDM emphasizes the importance of including this provision in the final rule. An H-2B worker in the seafood industry in Maryland and Virginia explained:

We have not been given information about the heat. We have not been given information [about safety] in our language. We have never had someone speak to us. We cannot communicate with the boss. On the other hand, there are other people who are very close to the boss, who know how to speak English, but . . . it is necessary to have someone who speaks the language. It would be easier to communicate. I think it is more necessary in [agricultural work] because new people are always coming in. And it is important because the heat is very strong.

CDM answers OSHA’s question, “[w]hether it is reasonable to require the HIIPP be made available in a language that each employee, supervisor, and heat and safety coordinator understands,” in the affirmative. As OSHA notes in the preamble, “OSHA expects that an individual who speaks employees’ languages will be available in all workplaces since effective communication between individuals such as employers, supervisors, and employees would need to occur in order for employees to understand the details about the work tasks they need to complete.”^[21] While we generally agree, CDM notes that employers of workers who speak indigenous languages often require other workers to provide interpretation, as many companies who employ indigenous workers do not have supervisory staff who speak indigenous languages. To the extent employers rely on coworkers to interpret or translate HIIPPs for non-English or non-Spanish speaking workers, it is important that these coworkers be provided with additional paid training to ensure accurate interpretation. Further, for workers speaking a traditionally spoken language, it may be reasonable to make the HIIPP available orally and not in writing, but it is important to make the HIIPP available to all individuals in an appropriate form.

Finally, given the diversity of languages spoken at agricultural workplaces and the range of ability to understand spoken and written English and Spanish, worker involvement to identify languages spoken and communication needs of workers will thus be important to ensure that all workers receive the necessary information. OSHA should consider specifying that worker input on the HIIPP should include input on which languages it should be disseminated in, and whether translation or interpretation is the preferred method of dissemination.

ii. Clarify that employers with over ten employees must provide a translated version of the written plan in the text of the rule.

In the preamble, OSHA explains that “Paragraph (c)(9) would require the employer to ensure the HIIPP is available in a language each employee, supervisor, and heat safety coordinator understands. Under proposed paragraph (c)(4), this would require written translations of the plan in all languages that employees, supervisors, and heat safety coordinators understand.”^[22] CDM encourages OSHA to codify this provision in the actual text of the rule. Since paragraph (c)(9) (language access) applies to all employers, but paragraph (c)(4) (written HIIPP) applies only to employers with more than 10 employees, the rule as written may be misinterpreted to mean that all employers, large or small, can comply with the language access provisions by explaining the plan verbally, but do not need to have translated written plans. This can be easily addressed by incorporating the language above into the final rule.

CDM agrees with OSHA that employers of more than 10 employees should be required to provide translated written HIIPPs, at least for traditionally written languages like Spanish where this would be useful to most employees. In the case of traditionally oral languages, like many common Indigenous languages, OSHA might consider allowing employers to provide workers with video or audio recordings of verbal interpretations in lieu of a written translation.^[23]

iii. Emphasize access to the HIIPP for workers with low literacy levels.

CDM recognizes OSHA’s consideration of workers with low literacy levels in the preamble but urges OSHA to move these protections into the rule itself. Many workers in high heat workplaces have limited or no literacy, and Indigenous workers may face additional challenges where their first languages are mainly oral. OSHA recognizes literacy barriers in the preamble of the rule, stating, “If one or more employees are not literate, the employer would have to ensure that someone is available to read the written plan in a language that each employee understands.”^[24] This is an essential cornerstone of this plan for ensuring access for all workers. As a key part of ensuring access, particularly because workers with low literacy may be more vulnerable, this provision should be included in the text of the final rule.

iv. Finalize paragraph h(5) (“Training must be provided in a language and at a literacy level each employee, supervisor, and heat safety coordinator understands. The employer must provide employees with an opportunity for questions and answers about the training materials.”)

As the former New Mexico H-2A worker who contributed to this comment put it, “[i]t’s extremely important for both workers and employers to understand and have training on heat-related illness to know what to do in the event [of an incident]. ^[25] But this critical training will only have its intended effect if it is delivered in workers’ languages and at an appropriate level of literacy. Accordingly, CDM strongly supports the inclusion of the language in paragraph h(5), as well as complementary language proposed in  paragraph (h)(1), which states that “the employer must ensure that each employee receives training on, and understands, [the subjects of the training].” (Emphasis added).^[26] Workers can only understand the training’s content if it is imparted in a language in which they are comfortable.

v. Clarify that more time for training will be required if workers are translating the HIIPP and training materials for other workers, and that time dedicated to preparing to translate or interpret must also be compensated.

As emphasized above, successful trainings are key to the success of this rule. CDM applauds the inclusion of training in the rule, but notes that trainings without sufficient time allocated will ultimately fail to achieve much. This is especially true where employers expect workers or supervisors to translate or interpret trainings for other workers, as interpretation will necessarily add time.

In response to OSHA’s inquiry, “Whether individuals are available at workplaces to provide verbal translations of the plan for employees who are not literate or do not speak English,” CDM believes the answer is generally yes, but urges OSHA to include additional measures. Accurate interpretation requires a high level of skill and training. OSHA should consider requiring employers to provide professional interpretation services to ensure that all workers are trained on heat safety plans. To the extent OSHA considers this infeasible, such as for smaller employers, at a minimum, bilingual or trilingual workers who are interpreting trainings should receive a training themselves first before they are expected to train other workers on a training that they have not yet received. This will ensure that translating workers are able to accurately convey the training content.

CDM urges OSHA to emphasize the need for adequate time for trainings and for additional time if the employer is utilizing workers as translators or interpreters.

III. Conclusion

CDM applauds OSHA’s efforts to address a gap in the safety of workers in the United States. We appreciate the opportunity to provide comments, and urge OSHA to promptly implement these badly-needed protections.

Sincerely,

Centro de los Derechos del Migrante, Inc.

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[1] Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, 89 Fed. Reg. 70698, 70775 (proposed Aug. 30, 2024) (to be codified at 29 C.F.R. §§ 1910, 1915, 1917, 1918, 1926, and 1928) (“Heat Injury Prevention”).

[2] Unless otherwise noted, all paragraph references in this comment are to proposed 29 C.F.R. § 1910.148.

[3] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[4] CDM focus group with current and former H-2A workers, December 20, 2024. Except where noted, all worker quotes in this comment are from this focus group.

[5] Heat Injury Prevention, 89 Fed. Reg. at 70774.

[6] CDM interview with former H-2A worker who worked in New Mexico, January 6, 2025.

[7] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[8] See Heat Injury Prevention, 89 Fed. Reg. at 70788.

[9] Heat Injury Prevention, 89 Fed. Reg. at 70801.

[10] See, e.g. Heat Injury Prevention, 89 Fed. Reg. at 70800 (citing a study that found that piece-rate farmworkers feared “that they might be replaced by another employee if they took breaks”).

[11] Heat Injury Prevention, 80 Fed. Reg. at 70788.

[12] Proposed paragraph (e)(3).

[13] Heat Injury Prevention, 89 Fed. Reg. at 70781.

[14] Proposed paragraph (b).

[15] Heat Injury Prevention, 89 Fed. Reg. at 70780.

[16] Heat Injury Prevention, 89 Fed. Reg. at 70779.

[17] Id.

[18] Heat Injury Prevention, 89 Fed. Reg. at 71041.

[19] JBS Int’l, Findings from the National Agricultural Workers Survey (NAWS) 2021–2022 16 (Sept. 2023), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS%20Research%20Report%2017.pdf.

[20]Id.; see also Isabel Gross, Indigenous Farmworkers Face Unique Barriers to Healthcare, Farmworker Justice.org (Apr. 26, 2021), https://www.farmworkerjustice.org/blog-post/indigenous-farmworkers-face-unique-barriers-to-healthcare/

[21] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[22] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[23] See Indigenous Languages, Indigenousfarmworkers.org, http://www.indigenousfarmworkers.org/indigenous_languages.shtml#Languages.

[24] Heat Injury Prevention, 89 Fed. Reg. at 70775.

[25] CDM interview with former H-2A worker who worked in New Mexico, January 6, 2025.

[26] Heat Injury Prevention, 89 Fed. Reg. at 71071.