Introduction: The Scorching Reality of Working Under a Heat Dome
As the summer continues to sizzle in the United States, the season’s unrelenting triple-digit temperatures have cast a new spotlight on the climate. Day in, day out, a significant portion of the laboring population ventures into the heart of the heat dome, building our homes, landscaping our lawns, harvesting our food, sweeping our trash, and delivering our packages.
The Passage of HB 2127: A Closer Look
It didn’t take long for headlines to report on the passage of HB 2127 in the State of Texas, a bill recently signed into law by Governor Greg Abbott. The new law overrules existing local labor standards, effectively nullifying the heat safety ordinances put in place in Dallas and Austin, such as local requirements to provide mandated water breaks: ten minutes for every four hours of outdoor work. In an attempt to appease critics, supporters of the bill argue that the water break ordinances were never a direct target of the bill. In fact, they say, industry standards provide more heat safety breaks than those required by both cities.
Federal Response: The Slow March Toward Heat Safety Guidelines
As the planet experiences its highest recorded average temperatures, we are reminded that the majority of workers in the United States lack adequate legal safeguards concerning extreme heat conditions. The federal government is currently engaged in a multi-year effort to formulate guidelines for heat safety. Meanwhile, only six states have established their own regulations to ensure that workers have access to water, rest, and shade—the three essential elements that medical experts say can protect workers from heat-related illnesses. In all the other states, workers are left to fend for themselves under the blazing sun.
Case Spotlight: Litigating Violations of Cooldown Recovery Break Ordinances
With Trellis, we can see how heat-protection laws shake out at the state trial court level. For example, in a tentative ruling authored by the Hon. Kenneth R. Freeman of the Los Angeles County Superior Court, the requirements for litigating a violation of cooldown recovery break ordinances are rendered clear and transparent. According to the California Department of Industrial Relations’ Heat Illness Prevention in Outdoor Places of Employment regulation, “shade shall be present when the temperature exceeds 80 degree Fahrenheit. When the outdoor temperature in the work area exceeds 80 degrees Fahrenheit, the employer shall have and maintain one or more areas with shade at all times.” (CCR §3395(d)(1); See Shady Business: Tree Litigation in a State Trial Court to learn more about the legal significance of the word ‘shall’.)
OSHA’s General Duty Clause: A Catch-All with Limitations
More broadly, within the United States, the realm of extreme heat hazard is encompassed by the Occupational Safety and Health Administration’s (OSHA) ‘general duty’ clause, which serves as a catch-all for workplace risks lacking precise directives. This situation makes it difficult for regulatory bodies to hold employers liable for heat-related injuries, as regulators are required to meet a more rigorous standard of evidence to establish heat as the direct cause of an injury or fatality. Although OSHA has the authority to impose penalties for heat hazards, the legal and procedural hurdles only allow for penalties after a worker has suffered harm or death on the job. That is to say, the system is not necessarily designed to operate proactively, to compel employers to provide sufficient water, shade, and breaks.
The Challenge of Establishing Causation in Heat-Related Deaths
Let’s take another look at the state trial court level. We can see the enfolding of the general duty clause into a pandora’s box in Los Angeles County, where a non-employment related wrongful death suit showcases the challenges in establishing causation in heat-related deaths. Kithe Brewster v. Avis Rent A Car System, LLC, et al. (2015) is a case in which the defendant’s demurrer to the plaintiff’s first amended complaint was sustained based upon the plaintiff’s failure to allege sufficient facts demonstrating causation and foreseeability. According to the Hon. Samantha P. Jessner, “there are no allegations in the [First Amended Complaint] as to how exactly decedent died. The allegations are simply that Avis’ wrongful conduct caused decedent to be exposed to various dangerous conditions that caused his death” (Case No. BC595320).
Emerging Risks: The Legal Paradigm Shift Triggered by Climate Change
Everyday, new questions arise as we collectively work through the intersection of the law and the climate. The relentless presence of the current heat dome has not only enveloped us in sweltering temperatures but has also unveiled new categories of hazards.
Conclusion: The Path Forward for Heat Safety and Workers’ Rights
The intensity of these newly emerging risks has outpaced occupational safety regulations and employment law, demanding new attention, further exploration, and the need to adapt our legal paradigms to address this uncharted litigation challenge.
Nicole Clark
Prior to founding Trellis, Nicole Clark was a business litigation and labor and employment attorney who handled litigation in both state and federal courts. She regularly represented multinational corporations in claims ranging from high-profile trade secret disputes to complex class-action litigation. Frustrated by sending internal emails and collecting anecdotes on judges in order to make strategic case recommendations, she built Trellis to solve her own need for access to data, information, and analytics at the state trial court level. Prior to law school, Nicole attended Bard College, beginning her college coursework at the age of sixteen. She graduated with honors from University of Massachusetts Amherst with a BA in Journalism, and received her Juris Doctorate from Rutgers School of Law in Newark, NJ. Nicole sat for the Bar Exam in California, Massachusetts, and Connecticut, and remains licensed to practice law in all three states.