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Sept. 26, 2022

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Proposal would keep worker heat protections in place all year in Washington

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New rules for people working outside in Washington may be in place year-round under a proposal from the state Department of Labor and Industries.

For the past two years, L&I has released emergency rules for the summer which add to guidance already in place. The rules require rest breaks, water and shade for those working in the heat. They apply to construction, agriculture and delivery jobs, among other industries.

This year’s emergency heat protections are in effect from June 15-Sept. 29. But staff members said temperatures are rising and they could be high outside of summer months. In May 2021, for example, the high temperature reached 92 degrees in the Yakima area, according to the National Weather Service.

Technical specialists and staff at L&I also discussed causes of work-related heat stress, while proposing lower trigger temperatures for worker protections. L&I also is reviewing how to define heat waves.

The rules for heat exposure apply to all outdoor occupations where employees are exposed to heat more than 15 minutes in any hour-long period.

L&I had a stakeholder meeting on Aug. 4 where it presented draft language for the new permanent outdoor heat exposure rules.

Reaction

Employers and employees have advocated for new permanent rules in the past, saying the rules will be easier to implement when they are consistent. Employers can better prepare in the long-term for costs and equipment. Workers can focus on improvement and safety, rather than basic education.

During the Aug. 4 meeting, participants raised questions about how the new rules might apply across significantly different environments and geography in Washington. Temperatures which are noteworthy west of the Cascades may be normal in Eastern Washington.

Jon DeVaney, president of the Washington State Tree Fruit Association, said in an email that heat is a serious safety concern, but more time needed for the rulemaking process. He pointed out that many different industries work outdoors in many different places.

“We are concerned that LNI (Labor and Industries) has put forward several major changes from the current rule and the two temporary emergency rules, and this new proposal comes with very little time to assess and respond,” DeVaney said in an email. “We believe LNI should analyze the full implementation and effectiveness of these new emergency measures before enacting new permanent rules.”

Edgar Franks, the political director of the independent farmworker union Familias Unidas por la Justicia, said the rules should be uniform within industries, even across state lines. Agricultural worker advocates want regional or national standards, so that migratory workers will have the same rules no matter where they are.

New trigger temperatures

Right now, employers must provide workers with water, shade and rest when temperatures reach 89 degrees, 77 degrees for workers in double-woven clothing and 52 degrees for workers in non-breathable clothing.

L&I is proposing new temperature triggers: 52 degrees for workers in non-breathable clothing and 80 degrees for all other workers. When temperatures are above 90 degrees, additional high heat procedures are being considered.

L&I presenters noted that in Washington from 2006-21, 374 worker accepted compensation claims regarding heat illnesses occurred at temperatures cooler than 89 degrees. A total of 850 worker compensation claims related to heat illness were accepted during that time period. However, those numbers are for indoor and outdoor workers together.

Ryan Allen, standards, technical and lab services senior program manager at L&I, added that the new trigger temperatures would create consistency with rules in California and Oregon. Worker advocates have argued for lower temperature thresholds for that reason in the past.

“It’s definitely an improvement,” Franks said. “It’s an improvement from last year when a lot of those rules wouldn’t go into effect until 100 degrees. We still argue that the temperature that it’s set at is still too high.”

Franks said that many farmworkers want a trigger temperature of 75 degrees. He also is concerned about enforcement. He hopes the state has the capacity to hold employers accountable and feels that employees often get the short end of the stick.

Work-rest cycles

Employees are entitled to a paid, 10-minute break every two hours when working in temperatures greater than 89 degrees, according to current emergency rules. The proposed high heat procedures would call for work/rest cycles.

“Really the goal of the 10-minute breaks is to reduce core body temperature,” said Laura Rascón Padilla, a technical specialist for L&I. “That’s the goal: it’s making sure they are able to sit down and rest in a cooler area to reduce that core body temperature.”

A work-rest cycle is a plan which incorporates temperature, environment, workload, clothing and other factors to show how long breaks should be and when they should come.

L&I is deciding between providing a more universal work-rest cycle table or allowing employers and employees to make their own work-rest cycles. One simple work-rest cycle plan may be easier to understand and enforce, but may not provide workers or employers with flexibility when it comes to their occupation.

“There are a lot of dynamics that exist when it comes to an appropriate work-rest cycle,” Allen said. “What we shared today was in hopes of getting a lot of feedback from business, from labor to understand the impacts and challenges within very specific industries.”

Franks said more uniform rules are better for workers. In the agricultural industry, workers often move around to different farms, which can make it difficult to keep track if work-rest cycles are different at each job, he said.

“I like the more uniform because that’s just everybody working under the same rules. If you start allowing wiggle room, it gets kind of tricky,” Franks said. “If there’s unified rules across the region, workers have an understanding of what their rights are.”

Acclimatization

L&I also wants to clarify rules for acclimatization. When new or returning employees have spent more than seven days away from high temperatures, they can be vulnerable when working in the heat. Those workers would be monitored through buddy systems or regular communication.

In addition, acclimatization rules would be invoked during heat waves. L&I defined heat waves as any time the temperatures were higher than trigger temperatures and 10 degrees more than the high temperature of the last five days. It is based on a rule from California.

The L&I’s draft rules are not final and the department is still seeking feedback from stakeholders. Those interested can contact Administrative Regulations Analyst Carmyn Shute at Carmyn.Shute@Lni.wa.gov or 360-902-6081.

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