Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2021
Bill: S.1068 | Sponsor: Sen. Brown, Sherrod (D-OH)
Policy area: Labor and Employment

Summary:
Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2021
This bill requires the Department of Labor to promulgate an occupational safety or health standard on prevention of exposure to excessive heat. Excessive heat includes outdoor or indoor exposure to heat at levels that exceed the capacities of the body to maintain normal body functions and may cause heat-related injury, illness, or fatality.
In addition, the bill establishes requirements concerning (1) training and education to prevent and respond to heat illness, and (2) whistle-blower protections.

To direct the Occupational Safety and Health Administration to issue an 
 occupational safety and health standard to protect workers from heat-
                    related injuries and illnesses.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE AND FINDINGS.

    (a) Short Title.--This Act may be cited as the ``Asuncion Valdivia 
Heat Illness and Fatality Prevention Act of 2021''.
    (b) Findings.--Congress finds the following:
            (1) Excessive heat exposure poses a direct threat to 
        workers and the economy. Climate change increases this danger, 
        as 19 of the 20 hottest years on record have occurred since 
        2001. Rising temperatures are projected to cause an increase in 
        heat-related workplace injuries and illnesses, a dramatic loss 
        in labor capacity, and decreased productivity.
            (2) On average, 3 times as many people die from extreme 
        heat in the United States each year than from hurricanes, 
        floods, and tornadoes combined.
            (3) Heat-related illnesses can arise when high temperatures 
        rise above the capacity of the body to dispel heat. Impacts 
        range from comparatively minor problems such as heat cramps to 
        severe afflictions such as organ damage, heat exhaustion, 
        stroke, and death.
            (4) Heat stress and COVID-19 are individually dangerous to 
        workers and can interact, making some work environments 
        especially hazardous. Respiratory infections, such as COVID-19, 
        and the use of protective equipment, like face and skin 
        coverings, can increase susceptibility to heat exhaustion and 
        heat stroke. Moreover, the symptoms of heat stress and 
        respiratory illnesses may overlap in ways that exacerbate the 
        diagnosis and pathophysiology related to these potentially 
        fatal conditions.
            (5) The current scientific evidence, rate of vaccine 
        production and distribution, racial and socioeconomic 
        inequities in vaccine access, mistrust of science messengers, 
        and levels of international and national preparedness, indicate 
        it will take months to years to achieve herd immunity from 
        COVID-19. Moreover, only long-term study will reveal if 
        vaccines sufficiently protect communities from all strains of 
        this coronavirus. Accordingly, workplaces must continue to 
        guard against COVID-19 and other communicable illnesses well 
        into the future, especially in high-density workplaces that 
        expose employees to stressors that include unhealthy levels of 
        heat.
            (6) Jobs at highest risk of heat stress illness and death 
        are disproportionately held by Black and Brown workers, a 
        disparity that reflects the racial injustice inherent in our 
        economic system.
            (7) Farmworkers and construction workers suffer the highest 
        incidence of heat illness, but all outdoor and indoor workers 
        employed in excessively hot and humid environments are at 
        significant risk of material impairment of health or functional 
        capacity.
            (8) Asuncion Valdivia was a California farmworker who died 
        of heat stroke in 2004 after picking grapes for 10 straight 
        hours in 105 degree temperatures. Instead of calling an 
        ambulance, his employer told his son to drive Mr. Valdivia 
        home. On his way home, he started foaming at the mouth and 
        died.
            (9) While heat stress is often associated with outdoor 
        jobs, some indoor workers are also at risk from dangerously 
        high temperatures. Indoor heat stress is prevalent in enclosed 
        workplaces without climate control or adequate ventilation, 
        such as warehouses and factories, and workplaces with heat-
        generating machinery such as steel mills, electrical utilities, 
        bakeries, commercial kitchens, and laundries.
            (10) People working in excessive heat suffer diminished 
        mental acuity and physical ability, which increases the risk of 
        accidents. Heat-related injuries and illnesses increase 
        workers' compensation costs and medical expenses.
            (11) The costs of lower labor productivity under rising 
        temperatures is estimated to reach up to $160,000,000,000 in 
        lost wages per year in the United States by 2090 according to 
        the 2018 National Climate Assessment. The drop in productivity 
        decreases income for employers and workers. Global gross 
        domestic product losses from heat are projected to be greater 
        than 20 percent by the end of this century.
            (12) Every year, thousands of workers become sick and some 
        die from exposure to heat. Between 1992 and 2017, 815 United 
        States workers died from heat and almost 70,000 were seriously 
        injured. These numbers are generally understood to be gross 
        undercounts because many heat-related illnesses and deaths are 
        blamed on natural causes.
            (13) Workers have a legal right to a safe workplace. The 
        vast majority of heat-related workplace deaths and illnesses 
        can be prevented by access to water, rest, and shade. Many 
        employers don't provide these simple measures for workers 
        according to the Occupational Safety and Health Administration.
            (14) Employers often retaliate against employees if they 
        report or seek assistance due to problems with heat. Many 
        employees are therefore afraid to report problems and face 
        increased risk of heat-related illnesses or death.
            (15) In the absence of a Federal standard, multiple 
        branches of the United States Armed Forces--including the Army, 
        Navy, Marine Corps, and Air Force--have issued heat prevention 
        guidelines, and several States--California, Washington, and 
        Minnesota--have issued heat prevention standards. The National 
        Institute for Occupational Safety and Health (``NIOSH'') issued 
        criteria for such a standard in 1972, updating it in 1986 and 
        2016.
            (16) Congress created the Occupational Safety and Health 
        Administration to ensure safe and healthful working conditions 
        by setting and enforcing standards pursuant to section 6 of the 
        Occupational Safety and Health Act of 1970 (29 U.S.C. 655). 
        Employees are exposed to grave danger from exposure to 
        excessive heat. The Occupational Safety and Health 
        Administration must develop a standard to protect workers from 
        the significant risks of heat-related illness and death.

SEC. 2. OSHA SAFETY STANDARD FOR EXPOSURE TO HEAT AND HOT ENVIRONMENTS.

    (a) Proposed Standard.--Not later than 2 years after the date of 
enactment of this Act, the Secretary shall, pursuant to section 6(b) of 
the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)), 
promulgate a proposed standard on prevention of occupational exposure 
to excessive heat.
    (b) Final Standard.--Not later than 42 months after the date of 
enactment of this Act, the Secretary shall promulgate a final standard 
on prevention of occupational exposure to excessive heat that shall--
            (1) provide no less protection than the most protective 
        heat prevention standard adopted by a State plan that has been 
        approved by the Secretary under section 18 of the Occupational 
        Safety and Health Act of 1970 (29 U.S.C. 667) and, at a 
        minimum, include the requirements described in section 3; and
            (2) be effective and enforceable in the same manner and to 
        the same extent as any standard promulgated under section 6(b) 
        of the Occupational Safety and Health Act of 1970 (29 U.S.C. 
        655(b)).
    (c) Interim Final Standard.--
            (1) In general.--If the proposed standard described in 
        subsection (a) is not promulgated within 2 years after the date 
        of enactment of this Act, the Secretary shall promulgate an 
        interim final standard on prevention of occupational exposure 
        to excessive heat not later than 2 years and 60 days after such 
        date of enactment--
                    (A) to require covered employers to develop and 
                implement a comprehensive workplace excessive heat 
                prevention plan to protect covered employees from 
                excessive heat that may lead to heat-related injuries 
                and illnesses; and
                    (B) that shall, at a minimum--
                            (i) provide no less protection than the 
                        most protective heat prevention standard 
                        adopted by a State plan that has been approved 
                        by the Secretary under section 18 of the 
                        Occupational Safety and Health Act of 1970 (29 
                        U.S.C. 667);
                            (ii) establish requirements for covered 
                        employers with respect to--
                                    (I) exposure limits that trigger 
                                action to protect covered employees 
                                from heat-related illness;
                                    (II) hydration;
                                    (III) scheduled and paid rest 
                                breaks in shaded or climate-controlled 
                                spaces;
                                    (IV) an acclimatization plan;
                                    (V) exposure monitoring, and other 
                                measures to prevent exposure to heat 
                                above safe limits;
                                    (VI) covered employee and 
                                supervisor training;
                                    (VII) hazard notification;
                                    (VIII) an emergency medical 
                                response plan;
                                    (IX) heat-related surveillance 
                                recordkeeping; and
                                    (X) procedures for compensating 
                                covered employees paid on a piece rate 
                                basis for required heat-related rest 
                                breaks;
                            (iii) take into consideration the Criteria 
                        for a Recommended Standard: Occupational 
                        Exposure to Heat and Hot Environments published 
                        by the National Institute for Occupational 
                        Safety and Health in 2016; and
                            (iv) include a requirement to protect 
                        covered employees of covered employers from 
                        discrimination or retaliation for exercising 
                        the rights of covered employees under the 
                        interim final standard.
            (2) Applicability of other statutory requirements.--The 
        following shall not apply to the promulgation of the interim 
        final standard under this subsection:
                    (A) The requirements applicable to occupational 
                safety and health standards under section 6(b) of the 
                Occupational Safety and Health Act of 1970 (29 U.S.C. 
                655(b)).
                    (B) The requirements of section 553(c) of chapter 5 
                and chapter 6 of title 5, United States Code.
                    (C) The requirements of the National Environmental 
                Policy Act of 1969 (42 U.S.C. 4321 et seq.).
            (3) Effective date of interim standard.--The interim final 
        standard shall--
                    (A) take effect on a date that is not later than 30 
                days after the promulgation of such standard, except 
                that such interim final standard may include a 
                reasonable phase-in period for the implementation of 
                required engineering controls that take effect after 
                such date;
                    (B) be enforced in the same manner and to the same 
                extent as any standard promulgated under section 6(b) 
                of the Occupational Safety and Health Act of 1970 (29 
                U.S.C. 655(b)); and
                    (C) be in effect until the final standard described 
                in subsection (b) becomes effective and enforceable.

SEC. 3. REQUIREMENTS FOR FINAL STANDARD ON PREVENTION OF OCCUPATIONAL 
              EXPOSURE TO EXCESSIVE HEAT.

    (a) In General.--The final standard promulgated under section 2(b) 
shall, at a minimum--
            (1) take into consideration the Criteria for a Recommended 
        Standard: Occupational Exposure to Heat and Hot Environments 
        published by the National Institute for Occupational Safety and 
        Health in 2016;
            (2) establish requirements for covered employers with 
        respect to--
                    (A) exposure limits that trigger action to protect 
                covered employees from heat-related illness;
                    (B) hydration;
                    (C) scheduled and paid rest breaks in shaded or 
                climate-controlled spaces;
                    (D) an acclimatization plan;
                    (E) exposure monitoring, and other measures to 
                prevent exposure to heat above safe limits;
                    (F) covered employee and supervisor training;
                    (G) hazard notification;
                    (H) medical monitoring;
                    (I) an emergency medical response plan;
                    (J) heat-related surveillance recordkeeping;
                    (K) procedures for compensating covered employees 
                paid on a piece rate basis for required heat-related 
                rest breaks; and
                    (L) a heat prevention plan; and
            (3) include the requirements described in subsection (b) 
        with respect to covered employers.
    (b) Requirements.--The final standard promulgated under section 
2(b) shall, with respect to covered employers, include the following:
            (1) Heat illness prevention plans.--
                    (A) In general.--A covered employer shall develop, 
                implement, and maintain an effective, written excessive 
                heat illness prevention plan for covered employees of 
                the covered employer, which shall--
                            (i) for all aspects of the plan, be 
                        developed and implemented with the meaningful 
                        participation of such covered employees and, 
                        where applicable, representatives (including 
                        collective bargaining representatives) of such 
                        covered employees;
                            (ii) be tailored and specific to hazards in 
                        the covered workplace;
                            (iii) be in writing, in English and in the 
                        language understood by a majority of such 
                        covered employees, if such language is not 
                        English; and
                            (iv) be made available, upon request, to 
                        such covered employees, representatives 
                        (including collective bargaining 
                        representatives) for such covered employees, 
                        and the Secretary.
                    (B) Plan content.--Each plan required under 
                subparagraph (A) shall include procedures and methods 
                for the following:
                            (i) Initial and regular monitoring of 
                        covered employee exposure to determine whether 
                        covered employees are exposed to excessive 
                        heat.
                            (ii) Provision of water, paid rest breaks, 
                        and access to shade or cool-down areas.
                            (iii) Emergency response.
                            (iv) Acclimatization.
                            (v) Hazard prevention applying principles 
                        of the industrial hygiene hierarchy of controls 
                        of the National Institute for Occupational 
                        Safety and Health, including, as appropriate--
                                    (I) engineering controls that may 
                                include isolation of hot processes, 
                                isolation of covered employees from 
                                sources of heat, local exhaust 
                                ventilation, shielding from a radiant 
                                heat source, insulation of hot 
                                surfaces, and the provision of air 
                                conditioning, cooling fans (including 
                                cooling mist fans), evaporative 
                                coolers, and natural ventilation;
                                    (II) administrative controls that 
                                limit exposure to a hazard by 
                                adjustment of work procedures or work 
                                schedules, which may include 
                                acclimatizing covered employees, 
                                rotating covered employees, scheduling 
                                work earlier or later in the day, using 
                                work-rest schedules, reducing work 
                                intensity or speed, changing required 
                                work clothing, and using relief 
                                workers; and
                                    (III) personal protective equipment 
                                which may include water-cooled 
                                garments, air-cooled garments, 
                                reflective clothing, and cooling vests.
                            (vi) Coordination of risk assessment 
                        efforts, plan development, and implementation 
                        of the plan with other employers who have 
                        covered employees who work at the covered 
                        workplace.
                            (vii) Compensating covered employees paid 
                        on a piece rate basis for required heat-related 
                        rest breaks.
            (2) Training and education.--
                    (A) Employee training.--A covered employer shall 
                provide annual training and education to covered 
                employees who may be exposed to high heat levels, which 
                shall cover the following topics:
                            (i) Identified heat illness risk factors.
                            (ii) Personal factors that may increase 
                        susceptibility to heat-related illness.
                            (iii) Signs and symptoms of heat-related 
                        illness.
                            (iv) Different types of heat illness.
                            (v) The importance of acclimatization and 
                        consumption of liquids.
                            (vi) Engineering control measures.
                            (vii) Administrative control measures.
                            (viii) The importance of reporting heat-
                        related symptoms being experienced by the 
                        covered employee or another covered employee.
                            (ix) Recordkeeping requirements and 
                        reporting procedures.
                            (x) Emergency response procedures.
                            (xi) Covered employee rights.
                    (B) Supervisor training.--In addition to the 
                training and education required in subparagraph (A), 
                training and education shall be provided annually to 
                covered employees of the covered employer who are 
                supervisors that shall cover the following topics:
                            (i) The procedures a supervisor is required 
                        to follow under this Act.
                            (ii) How to recognize high-risk situations, 
                        including how to monitor weather reports and 
                        weather advisories, and not assigning a covered 
                        employee to situations that predictably 
                        compromise the safety of the covered employee.
                            (iii) The procedures to follow when a 
                        covered employee exhibits signs or reports 
                        symptoms consistent with possible heat illness, 
                        including emergency response procedures.
                    (C) General training requirements.--The education 
                and training provided under this paragraph to covered 
                employees of the covered employer shall meet the 
                following:
                            (i) In the case of such a covered employee 
                        whose job circumstances have changed, within a 
                        reasonable timeframe after such change of job 
                        circumstances, education and training shall be 
                        provided that shall be--
                                    (I) in addition to the education 
                                and training provided under clause 
                                (ii), subparagraph (A), and, if 
                                applicable to such covered employee, 
                                subparagraph (B); and
                                    (II) applicable to such change of 
                                job circumstances.
                            (ii) Applicable education and training 
                        shall be provided for each new covered employee 
                        prior to the job assignment of such covered 
                        employee.
                            (iii) The education and training shall 
                        provide such covered employees opportunities to 
                        ask questions, give feedback, and request 
                        additional instruction, clarification, or other 
                        follow-up.
                            (iv) The education and training shall be 
                        provided in-person and by an individual with 
                        knowledge of heat illness prevention and of the 
                        plan of the covered employer under this 
                        section.
                            (v) The education and training shall be 
                        appropriate in content and vocabulary to the 
                        language, educational level, and literacy of 
                        such covered employees.
            (3) Recordkeeping.--Each covered employer shall--
                    (A) maintain at all times--
                            (i) records related to each plan of the 
                        covered employer under paragraph (1), including 
                        heat illness risk and hazard assessments, and 
                        identification, evaluation, correction, and 
                        training procedures;
                            (ii) data on all heat-related illnesses and 
                        deaths; and
                            (iii) data on environmental and 
                        physiological measurements related to heat; and
                    (B) make such records and data available, upon 
                request, to covered employees and their representatives 
                (including collective bargaining representatives) for 
                examination and copying in accordance with section 
                1910.1020 of title 29, Code of Federal Regulations (as 
                such section is in effect on the date of enactment of 
                this Act).
            (4) Whistleblower protections.--
                    (A) Policy.--Each covered employer shall adopt a 
                policy prohibiting any person (including an agent of 
                the covered employer) from discriminating or 
                retaliating against any covered employee for--
                            (i) exercising the rights of the covered 
                        employee under this Act; or
                            (ii) reporting violations of the standard 
                        to a Federal, State, or local government.
                    (B) Prohibition.--No covered employer shall 
                discriminate or retaliate against any covered employee 
                for--
                            (i) reporting a heat-illness-related 
                        concern to, or seeking assistance or 
                        intervention with respect to heat-related 
                        health symptoms from, the covered employer, 
                        local emergency services, or a Federal, State, 
                        or local government; or
                            (ii) exercising any other rights of the 
                        covered employee under this Act.
                    (C) Enforcement.--This paragraph shall be enforced 
                in the same manner and to the same extent as any 
                standard promulgated under section 6(b) of the 
                Occupational Safety and Health Act of 1970 (29 U.S.C. 
                655(b)).

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Covered employee.--The term ``covered employee'' 
        includes an individual employed by a covered employer.
            (2) Covered employer.--The term ``covered employer''--
                    (A) means an employer that employs an individual to 
                work at a covered workplace; and
                    (B) includes a contractor, subcontractor, a 
                temporary service firm, or an employee leasing entity.
            (3) Covered workplace.--The term ``covered workplace'' 
        includes a workplace with occupational exposure to excessive 
        heat.
            (4) Employer.--The term ``employer'' has the meaning given 
        the term in section 3 of the Occupational Safety and Health Act 
        of 1970 (29 U.S.C. 652).
            (5) Excessive heat.--The term ``excessive heat'' includes 
        outdoor or indoor exposure to heat at levels that exceed the 
        capacities of the body to maintain normal body functions and 
        may cause heat-related injury, illness, or fatality (including 
        heat stroke, heat exhaustion, heat syncope, heat cramps, or 
        heat rashes).
            (6) Secretary.--The term ``Secretary'' means the Secretary 
        of Labor.
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