This is the second in WUNC's series Scorched Workers. Read Part 1, or see more from the project.
Protecting outdoor workers from extreme heat is on the ballot in North Carolina this November.
As days get hotter, people who work outdoors in agriculture, construction, sanitation, and other labor-intensive industries are at particular risk from the effects of climate change.
North Carolina's labor laws have no specific heat-related protections. There are, however, an array of heat safety guidelines and recommendations for employers.
Juanita Constible, a senior advocate for environmental health at the Natural Resources Defense Council, said rules like heat standards are "absolutely necessary."
"Right now, too many employers use workers like disposable parts," Constible said.
This summer, the Biden administration proposed the first-ever federal heat safety standard, which includes regulations to prevent heat-related illnesses and deaths on the job. In North Carolina, demands for a state level heat safety standard are growing, too, amid at least three heat-related workplace deaths in the last year.
Whether such rules become a reality or not will depend on who wins the race for the state’s next labor commissioner.
Two new candidates compete for NC labor commissioner
North Carolina is one of a few states that elects its labor commissioner. The Republican incumbent, Josh Dobson, isn't seeking reelection. The two candidates vying for the position differ in their views on how far the state labor department should go in regulating general workplace safety.
The North Carolina Department of Labor oversees workplace regulations, including temporary or permanent standards for workplace protections, such as heat.
That's a central issue in the campaign of Democrat Braxton Winston, a unionized stagehand and former Mayor Pro Tem of Charlotte, who characterizes himself as the pro-worker candidate who "clocks in and clocks out."
"It's high time we actually had a worker being the lead advocate for workers in North Carolina," Winston told WUNC. "We have to recognize the natural and human-impacted acceleration of climate change. Now is the time to provide standards that we can point to and say, 'This is how you protect one another from these conditions.'"
His opponent, Luke Farley, is well-versed on labor laws as an attorney for a private North Carolina firm that represents employers.
Farley wants to continue the department's 24-year Republican leadership, championing the deregulatory and fiscally conservative approach made popular by former five-term labor commissioner Cherie Berry, who has endorsed Farley.
"We want to protect workers," Farley said in an interview with WUNC. "We also need to be focused on working families. The costs of implementing a complex regulation are just going to be passed on to those working families, and I'm concerned about them, too."
Winston maintains that employee welfare should be the priority.
"If making sure workers are healthy and workers are safe is going to blow up the bottom line of a business or industry, we need to look at the underlying practices of that business or industry," said Winston. "Human life is priceless, and nobody should be considered dispensable."
Winston is campaigning on explicit heat protections in the form of a statewide heat standard modeled after those in other states. It includes heat sickness prevention plans, training to help employees and supervisors respond to heat illness, and reinforcing access to clean drinking water and shade.
We have to recognize the natural and human-impacted acceleration of climate change. Now is the time to provide standards that we can point to and say, 'This is how you protect one another from these conditions.'Braxton Winston, democratic candidate for N.C. labor commissioner
Politics of federal vs state heat standards
Major agricultural states, including California, Washington, and Oregon, already have their own heat standards.
No such laws exist in the Southeast. This summer, Florida legislators did the opposite, in fact: State Republicans passed a law blocking cities or counties from implementing local worker heat protections.
In California, outdoor temperatures above 80 degrees Fahrenheit require employers to provide workers with shade. Temperatures of 95 degrees or higher trigger "high-heat procedures," which include protocols like mandating farmworkers take a minimum ten-minute break to cool down every two hours, according to the standard's text.
Worker rights groups like the N.C. Farmworker Advocacy Network are pushing for such protections in North Carolina. So are labor unions like the Service Employees International Union and the Union of Southern Service Workers.
If the federal government successfully enacts its heat standard, states must adopt it as written or implement their own, modified rules.
Farley, a critic of the Biden administration, prefers to do the latter.
"I will propose an alternative that focuses on our state, but with input from all stakeholders, both workers and job creators," said Farley. "And let me tell you, it would be centered on rest, water, and shade."
We want to protect workers. We also need to be focused on working families. The costs of implementing a complex regulation are just going to be passed on to those working families, and I'm concerned about them, too.Luke Farley, Republican candidate for N.C. labor commissioner
Farley declined to say whether he would implement a state standard if the federal government didn't go through with a federal standard.
He said Biden's proposed heat standard is an inadequate "one-size-fits-all" approach that would harm business with regulatory red tape. Moreover, he said, complex regulations are harder to enforce and follow – especially for some industries more than others.
"Agriculture gives us the food we eat," said Farley. "Construction gives us the homes and apartments that we live in. The cost of those things is already high enough. There is a way to approach this in a common sense, reasonable way that protects our workers without driving up costs on working families."
Winston is also committed to establishing a North Carolina specific heat standard. However, he won't wait for federal action to move forward.
"I think it's time for the North Carolina Department of Labor to use all authority it has to participate in that federal rule-making process," he said. "But, also, to convene a table of workers in North Carolina; industry leaders and other stakeholders to make sure we have our own heat standard."
Legality of existing and future rules
Last year, Farley wrote in a column that Biden's proposed rules are fueled by "climate alarmism."
Farley argued that North Carolina already has enough worker protections laid out in OSHA's General Duty Clause, which states that places of employment must be free from hazards that cause or are likely to cause death or serious harm to workers.
It can be used to cite employers for violations related to heat hazards. But in practice, labor advocates told WUNC that it doesn't do enough for workers impacted by heat stress.
"The problem with the General Duty Clause is that it does not lay out these specific protections like shade, water, what kinds of training workers need," said Constible, of the Natural Resources Defense Council. "It's also very difficult to enforce. It requires a lot more evidence."
Constible argues that states shouldn’t wait for the federal government to act because existing labor protections aren’t strong enough.
Phillip Russell, an OSHA attorney who represents employers at the firm Ogletree Deakins, added there’s not good precedent for the General Duty Clause being used to cite employers for heat-related incidents.
The outcome of the presidential election may also determine whether OSHA’s final standard will be withdrawn, or substantially changed, according to Russell. Even if Vice President Kamala Harris wins, and if the proposal is successful, it’s almost inevitable the standard will face legal and political challenges.
"There's a legitimate question as to whether heat is an occupational hazard, or an environmental hazard, which was not intended to be regulated by OSHA," Russell said.
If former President Donald Trump is reelected, Congress is more likely to challenge OSHA's final standard. Legislators may withdraw the proposal or modify it into something else, according to an analysis by Ogletree Deakins.
But whether the standard is implemented or not, employers can consider it now as a template for ideas for their workplace policies.
"There's something good there for employers to think about so you don't have to worry about being cited," Russell said.
Russell suggested that state legislators are a more powerful rulemaking body in the long run – as opposed to labor officials, whose authority is administrative, not legislative.
Local solutions informed by community research
Aside from a state or federal heat safety standard, experts and advocates say protecting outdoor workers from extreme heat will also require a patchwork of solutions at the local level.
Earlier this spring, the state launched the North Carolina Heat Action Plan Toolkit.
The toolkit is available for download and acts as a template for local governments, emergency management departments, and employers to build resilience to extreme heat. The toolkit was created by several agencies, including the Duke University Heat Policy Innovation Hub.
Jordan Clark, a senior policy associate at the hub, points to the work of local research being gathered to inform community solutions.
Among them are an urban heat mapping project in Raleigh and Durham; a collaborative heat monitoring center at the Durham Museum of Life and Science; and a heat data collection project at UNC Chapel Hill's Data Driven EnviroLab.
All this data will help groups provide appropriate resources to outdoor workers and other vulnerable communities.
But first, Clark said it's vital for people to take heat seriously.
"Comparing (heat) to hurricanes, tornadoes, lightning, extreme winds - you can look out your window and see that in action," Clark said. "But it's an invisible threat that you can't see."
Clark and others suggest implementing regulations at any level could take years, and outdoor workers will continue to experience extreme heat in their workplace.
But the momentum for a heat safety standard is promising, said Constible of the Natural Defense Resources Council, even if it's not the end-all-be-all when it comes to climate and labor.
"There's a lot of other bigger problems we need to address with the way workers are treated in this country, but it's an important starting point," she said. "Without it, too many workers will continue to needlessly suffer the debilitating or deadly effects of heat."
Support for this story comes from the Kozik Environmental Justice Reporting Grants funded by the National Press Foundation and the National Press Club Journalism Institute.
For more on the impact rising heat has on outdoor workers, read the first story in our Scorched Workers series here.
