Here at the Chamber, we often speak of North Carolina sitting at the epicenter of so many forces shaping the national conversation. Our business climate is the envy of the rest of the country, as evidenced by our back-to-back recognition as the best state in the country in which to do business. Our politics appear to be closely divided and are thus closely watched, and we are a key state in the path to the Presidency. Our military presence is staggering, and the economic ripple effect attendant to it is beyond impressive – a key observation as geopolitical turmoil around the world seems to be on the rise. And our workforce – employers and employees alike – is talented and growing.

We write today to alert you to the fact that we may also quickly become the epicenter of a national regulatory debate that will impact almost every business in the state (and beyond).

Back in 2021, the Biden administration announced its intention to create the first-ever Federal Heat Standard. As best we could understand at the time, the general framework would consist mostly of a widely accepted temperature, or series of conditions, that would trigger the invocation of one or more accommodations designed to lessen the risk of workplace injury from heat exposure. Those accommodations might include a break in the workday, stoppage of work completely, or frequent mandatory water breaks. The Department of Labor’s Occupational Safety and Health Administration (OSHA) is responsible for promulgating the rules and holding employers accountable for complying with them. The Regulatory Framework for the proposal under discussion establishes an “initial heat trigger” of only 82°F and a “high heat trigger” of 90°F. The initial and high heat triggers would be even lower if an employer used a forecasted temperature to determine whether heat effect controls should be implemented. OSHA is also considering requiring “cool-down” areas, which could include “air-conditioned” spaces that can accommodate all employees on break, and which are “located as close as practical to the work area.”

Fast forward to today, some two and a half years after the initial announcement, and we are still waiting on the final rule, but continue to see messaging and events designed to promote the need for it. During the summer of 2023, the President announced – during a heat wave – the launch of a heat hazard alert notification system and increased OSHA inspections on farms and construction sites. The administration has also poured funding into efforts to achieve better weather modeling and to provide better drinking water infrastructure for some parts of the country. As of the writing of this piece, the federal heat standard proposal remained in process and continues to appear on the administration’s regulatory agenda. We expect this process will soon culminate with the issuance of a final rule that has significant implications for our employers.

Business has offered its perspective.

The National Association of Manufacturers and the U.S. Chamber, both organizations for which the NC Chamber serves as the North Carolina affiliate, have offered perspectives on the promulgation of the rule. They have encouraged the Department of Labor to consider the following recommendations when crafting a blanket heat safety rule:

• Given that there is a lack of well-regarded criteria to determine at what point or under precisely what conditions the risk of heat illness becomes significant, the organizations have asked for more research to discern when OSHA and employers can determine a significant risk is present.
• The rule must address the barriers of implementation. Permissible health-related inquiries into employees’ health conditions are severely restricted. If employers are to be expected to protect employees from problems dealing with heat, often caused by unknown health conditions or medications, employers must have more flexibility than currently afforded by Equal Employment Opportunity Commission guidance to make inquiries of their employees.
• Fashion a rule that is economically and technologically feasible. Many businesses have already adopted heat-mitigation strategies and heat-safety policies and a mandate to adhere to a blanket heat safety rule could be costly—especially for small businesses.
• Ensure re-examination of the rule given the inevitable challenges in implementing a one-size-fits all rule. For example, establishing a uniform heat trigger would ignore the huge variations in the foundational characteristics of businesses such as: type of work, region, climate, humidity, seasons, indoor vs. outdoor location, indoor structural or outdoor location, and shade.

So, why will North Carolina be at ground zero for this debate?

For starters, North Carolina was host to the unfortunate death of a federal H-2A visa holder who died while working in an agricultural operation in the eastern part of the state in September of 2023. In early March of this year, almost a full six-months later, the N.C. Department of Labor concluded, before the autopsy results were completed, that the employer had committed a “serious willful” violation “in that employees were exposed to heat-related hazards associated with working in hot environments.” That citation included a record $187,509 penalty that will be paid to the state and that likely opens the door for further legal exposure.

The employer has signaled its intent to contest the citation and notification of penalty, but doing so will be hampered by the scant due process protections employers have in these situations. The government investigator who worked the case generally cannot be deposed or otherwise examined by the employer while preparing its defense. It is clear that this turn of events will be used to further the argument that additional standards are needed and that the wait for the Biden administration’s rule should be over.

And how will the election impact the debate?

Another reason that North Carolina will no doubt be a focus for this national debate is that we elect our Commissioner of Labor. Whether a heat-specific law should be adopted or incorporated here is already an item of interest in that race.

One candidate, Republican Luke Farley, has pointed out that workers are already protected from heat by the “general duty clause” of the federal Occupational Safety and Health Act. (And, in fact, that is precisely the standard used to fine the operation mentioned above.) The Raleigh News & Observer quoted Farley as saying “The general duty clause is the right way to deal with heat stress. We’ve got the tools on the books to do what we need to do.”

Taking a very different stance is Democratic Commissioner of Labor candidate Braxton Winston, who has been “emphatic” about his position that North Carolina shouldn’t even wait on the new federal standards, it should adopt its own.

The juxtaposition of these competing views will be highlighted by each candidate while on the campaign trail. Frankly, each of their approaches gives the business community clear insight into their competing regulatory philosophies and creates a stark contrast for the election circuit.

Advocacy battles have stretched far beyond the halls of our General Assembly and Capitol buildings.

Your NC Chamber is positioned to advocate on all fronts for North Carolina’s business community. It was precisely for times like these that your NC Chamber Legal Institute was launched – to protect the legal climate that makes our state competitive. Implementation of this regulation is one place we certainly do NOT want North Carolina to lead.