A bill to protect outdoor workers in extreme heat failed in New York

NEW YORK — Jim and Kathy Barber stood on the floor of the New York State Assembly on Tuesday ready to share their son’s story. Tim Barber, a 35-year-old construction worker from LeRoy, N.Y., died of hyperthermia while working on a construction site in the summer of 2020.

In the 96-degree, sweltering summer heat, Barber worked an eight-hour shift without food or water, spending most of his day sitting on a bucket sorting through bolts and screws. It was his second day on the job and the third of a Rochester summer heat wave that pushed temperatures above 90 degrees for more than a week. An OSHA inspectors report filed shortly after Barber’s death found that the company had no temperature safety program or proof that he had undergone safety training ahead of his first day to prevent an unsafe work environment.

Tragedies such as Barber’s death have contributed directly to nationwide efforts to establish more substantial temperature protection laws. But in New York, with its assembly session scheduled to end on Thursday, a bill that might have helped save Barber will die in committee.

Earlier this year, New York state Sen. Jessica Ramos and Assemblywoman Latoya Joyner announced their Temperature Extreme Mitigation Program in front of the New York City Employees Local 237 office. They joined rally attendees in chants of “we’re hot, we’re cold, exploitation is getting old” and held up signs with images of delivery trucks decorated with marker-drawn flames. Ramos and Joyner agreed that New York workers needed more protection from the effects of climate change.

The T.E.M.P. Act proposal pushed to amend New York labor law to add broader protections against the threat of heat and cold stress. Heat stress is described by the Centers for Disease Control and Prevention as the body’s inability to regulate its temperature. Overexposure to heat can lead to confusion, loss of consciousness, excessive sweating, seizures and death. Cold stress occurs when skin temperature and internal body temperature drop, leaving the body unable to warm itself. Some common symptoms of cold stress are trench foot, frostbite, hypothermia, and chilblains.

If passed, the bill would require businesses to establish plans for when temperatures exceed 80 degrees or fall below 65; require air conditioning in all indoor workspaces, including trucks and transportation vehicles; and provide personal protective equipment such as gloves, hats and coats or sweat-wicking shirts and sunscreen. Fines would also be imposed on businesses that failed to establish weather acclimatization training programs for employees.

The measure would have been the first state labor protection to address both heat and cold stress, establishing a dual temperature protection standard.

Currently, there is no federal standard for heat stress. California enacted a statewide heat standard in 2008 in response to several agriculture worker deaths. Oregon and Minnesota followed with explicitly detailed regulations for working in heat.

In January, days before the two legislators introduced their bills, the New York mayor’s office submitted a 17-page report to OSHA highlighting the need for heat-related protections. The report estimated that, in New York City each summer, there are 450 heat-related emergency department visits, 150 heat-related hospital admissions, 10 heatstroke deaths and 350 heat-exacerbated deaths caused by chronic health conditions. Additionally, the data in the report acknowledged potential inequities and amplified risk for minorities or immigrants.

For months, the bill sat in labor committees, relatively unchanged from its original text. However, on June 2, it was amended to eliminate the cold-stress protections entirely.

In many cases, heat-protection legislation faces opposition from corporations and small-business owners who argue that plans will lead to major cost burdens.

“The dangerous impact of extreme temperatures on workers could be reduced dramatically but some employers continue to drag their feet when it comes to addressing this serious problem,” Joyner said.

The bill’s failure is similar to the fate of several previous attempts to enact heat protections for New York workers, as was attempted in 2019.

“For a hazard, a lot of businesses say they already have a lot of controls in place,” said Nellie Brown, an industrial hygienist and the director of Workplace Health and Safety Programs at Cornell University’s School of Industrial and Labor Relations. “They’ve already done a lot of good stuff, but they don’t want to be told what they have to do in case they have to make any modifications to their programs.”

In a 2021 public comment submission, the American Farm Bureau Federation said, “As OSHA has already demonstrated its enforcement capabilities, a new standard appears unnecessary to improve employee health outcomes related to heat.”

Similarly, a letter from the Southeastern Lumber Manufacturers Association, Inc. (SLMA) said, “An OSHA standard specific to heat stress is unnecessary. SLMA’s experience with occupational heat exposure indicates that the risk of serious illness, injuries, and fatalities as a result of heat stress is marginal.”

OSHA is currently developing an updated heat-stress standard that will establish broad regulations for states without heat-mitigation plans. The standard has not been updated since 2010.

The bill’s failure comes as thick, hazardous smoke covered the Northeast region this week, most prominently so far in Pennsylvania and New York. For labor-rights advocates like New York Committee for Occupational Safety and Health Executive Director Charlene Obernaur, the smoke presents a crucial question for how New York and the nation will protect workers in the face of unexpected climate events.

“It’s definitely concerning that we don’t know what the temperature might look like next year. We don’t know the types of air-quality issues that we may have next year,” Obernaur said.

In March, Rep. Claudia Tenney (R-N.Y.) proposed a measure called the Timothy J. Barber Act requiring the secretary of labor to conduct a study on the Occupational Safety and Health Administration’s spending, aiming to aid small businesses in complying with federal health safety regulations. The bill honors Barber’s life, but would offer limited change to workers’ experiences if passed.

Three years after their son died, Jim and Kathy Barber’s goal remains the same.

“Tim was just a loving, 35-year-old young man that we miss every day. And we’ll do whatever we can to keep his name out there and support in any way we can to make sure it never happens to another family,” Jim Barber said.