James Wyche is a law student in the HLS Food Law & Policy Clinic and a guest contributor to this blog.
After growing up in Texas, I can confidently say that I know heat. Long weekends dedicated to baseball tournaments under the high summer sun routinely exhausted my energy. Before leaving to play, my mom always would remind me “to REMEMBER to stay hydrated!” After a long day, whether successful or not, I could always count on the air conditioning in my dad’s car to provide relief from the oppressive swelter.
However, for workers in Florida, the promise of staying hydrated, or taking a brief respite in the shade, withers under a different kind of heat. Recently, the State of Florida enacted a law that eliminated the authority of local governments to mandate heat protections for workers. Before the law’s enactment, different localities had different heat protection measures, creating a patchwork regulatory framework that many republicans viewed as inimical to business interests. In response, the Florida legislature sought to create consistency between these different localities. By eliminating local regulatory authority, the state aimed to create equal protections for workers. Each worker affected by the legislation now has the same level of local protection—none.
Amidst record-breaking heat trends, with heat deaths being the largest category of weather-related fatalities, this legislation puts the lives of nearly two million workers at risk. If regulatory uniformity was Florida’s primary goal, then it seems that Florida could’ve done at least two things. First, it could do what it did and eliminate localities’ ability to pass heat safety regulations. Second, the state could’ve passed a law that unified the guaranteed protections for workers across the state. The options are similar in terms of promoting uniformity. However, the options diverge in determining whether workers or businesses become the beneficiary of the state’s recently enacted policy.
By eliminating local authority, the state has eliminated one level of regulations. Prior to the passage of the legislation, companies incurred obligations for the benefit of workers. However, by removing local authority to pass heat safety regulations, companies have far fewer obligations and workers no longer have the protections. The law inverted the benefit-burden schema by making the company, as opposed to the worker, the beneficiary of policy. In a political process dominated by competing values, it appears that Florida has prioritized non-market intervention over health and safety regulations, which suggests an additional motive for the Florida legislature—a desire to remove burdens on businesses.
Florida lawmakers contend that the law wouldn’t leave workers without any heat protections. They assert that employer obligations under OSHA’s General Duty Clause are adequate to protect workers from extensive heat. However, OSHA has promulgated no workplace heat safety rules, and although the agency issued an advance notice of proposed rulemaking related to heat stress protections in 2021, because of legal requirements, the agency is less than halfway through the rule enactment process. Yet, OSHA’s seemingly extended timeline is not atypical. In 2012, a Government Accountability Office report found that OSHA typically takes around seven years to enact rules.
While the public sector may currently appear limited in its ability to implement robust workplace heat protections, one potential avenue for progress lies in engaging the private sector. This is exemplified by the Fair Food Program (FFP), established in 2011 by the Coalition of Immokalee Workers, a nonprofit representing farmworkers. The FFP sets stringent workplace safety standards for farms, certifying those that adhere to these rules. In return, participating farms gain priority access to major produce buyers. This initiative demonstrates how concerted efforts from workers and private sector entities can lead to the establishment of comprehensive workplace protections, even in the absence of regulatory mandates from local, state, or federal authorities.
The views and opinions expressed on the FBLE Blog are those of the authors and do not necessarily reflect the official policy or position of FBLE. While we review posts for accuracy, we cannot guarantee the reliability and completeness of any legal analysis presented; posts on this Blog do not constitute legal advice. If you discover an error, please reach out to contact@farmbilllaw.org.
