June 18, 2025 – As the heat rises this summer, those who work outside may wonder what relief they can get. Lawyers advising employers might be asking the same thing.

A Wisconsin heat-specific regulation exists as an emergency rule – quicker to create, shorter in duration – covering a narrowly defined group of workers. This focused regulation reveals the challenge of ensuring safe conditions for outdoor workers through regulation.

Migrant Worker Emergency Rule

When scientific evidence points to global warming and the known heat-island effects of asphalt-and-concrete-gridded cities, the challenge of preventing heat illness becomes more acute.

The Department of Workforce Development’s (DWD) emergency rule, EmR2505, related to “heat illness protections for migrant workers,” which took effect May 6, 2025 and remains effective until Oct. 2, 2025, restores the field sanitation standards for migrant workers in Wis. Admin. Code DWD Section 301.09(2m)(d)-(e).

These standards focus on creating a heat illness prevention plan with subsequent work site protections to help identify worker heat illness and prevent it from becoming life-threatening.

It begins with a “heat illness prevention plan.” Any employer plan is required to ensure contact between an employer and workers, knowledge of what heat illness looks like, and responses to worker illness.

The plan must be available at the migrant camp in English and the migrant workers’ language.

An outdoor temperature above 80 degrees triggers required access to shade close to the work location that is sufficient to accommodate workers. Employers are required to allow workers to use shade to prevent and manage heat illness.

Temperatures of at least 95 degrees trigger “high heat procedures” that require employers to maintain closer communication with employees to monitor their health, remind workers to drink water, and have employees assigned to call for emergency medical services when needed.

No state around Wisconsin regulates heat safety for migrant workers, DWD explained. Minnesota has a regulation involving occupational heat, but it is for indoor work.

In the Finding of Emergency, DWD explained that it had promulgated Clearinghouse Rule CR 23-030, effective Feb. 1, 2024, addressing heat risks for migrant workers.

Committee chairs in the Assembly and Senate recommended sunsetting that rule because the “Occupational Safety and Health Administration (OSHA) was expected to promulgate a rule for protecting all workers from heat illness,” the DWD said.

If the OSHA rule didn’t become effective before the 2025 growing season, the legislative chairs suggested DWD could “file a permanent or emergency rule.” That is what DWD did.

Bigger Regulatory Issue

OSHA began working on its proposed rule in 2021, announced in an advanced notice of proposed rulemaking, Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, 86 Fed. Reg. 59,309 (Oct. 27, 2021).

Last August, OSHA published a notice of proposed rulemaking, Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, 89 Fed. Reg. 70,698 (Aug. 30, 2024) for comment.

Three months later, OSHA extended the public comment period to Jan. 14. OSHA received 43,437 comments, according to Regulations.gov.

A virtual informal public hearing is scheduled to begin June 16 and continue through July 2, although the deadline to submit a Notice of Intention to Appear expired May 2.

Proposed OSHA Rule

The proposed rule promises worker protection in all industries. It’s a vast entry in the Federal Register, covering 376 pages, describing the rule and providing scientific findings supporting it.

The DWD migrant worker rule outlines the OSHA rule in microcosm. The federal rule sets requirements for a Heat Illness Prevention Plan including means of identifying heat hazards and addressing them.

The National Weather Service heat index defines high-heat conditions. The index combines the effects of temperature and humidity for what the weather feels like.

The initial heat trigger at 80 degrees requires basic protections including access to drinking water, sufficiently sized and nearby shaded or air-conditioned rest areas where workers can cool down, paid rest breaks as needed, and critical communication with workers to make sure they are OK.

The high heat trigger arrives at 90 degrees, requiring additional protections including a minimum 15-minute rest break every two hours. Communications with employees become more important to monitor their health.

Slowing the pace of work does not qualify to manage high heat, the regulations state. Other provisions include emergency responses and training.

Unlike the DWD migrant worker rule, the OSHA rule would cover all workplaces, indoors and out. The rule goes in greater depth, providing limits regarding occupational heat exacerbated from machinery or by personal protective equipment that retains body heat.

The proposed rule also specifies acclimatization – making sure new employees gradually become accustomed to the typical heat conditions.

An OSHA Priority

For more than three years, OSHA has treated occupational heat illness as a priority. Its National Emphasis Program (NEP) on Outdoor and Indoor Heat Related Hazards, Directive No. CPL 03-00-024 (April 8, 2022), extended on Jan. 16 for a year beyond its April 8, 2025 expiration date, brings attention to the danger.

By OSHA’s count as listed in the renewal notice, between April 8, 2022 and Dec. 29, 2024, “OSHA inspectors conducted approximately 7,000 heat-related inspections, which included 147 heat-related fatality inspections.”

From 2015 to 2020, the annual average was 200 inspections, OSHA reported.

Out of the NEP, OSHA credits “60 heat citations for violations of the General Duty Clause” and 1,392 Hazard Alert Letters.

The difference between numbers of inspections and citations demonstrates OSHA’s goal of compliance, explained Savannah L. McDonald of Ogletree Deakins in Washington D.C., who advises on OSHA issues nationwide, including in Wisconsin.

These federal initiatives are above the growing number of states that have added occupational heat regulations – five states as of last August’s rulemaking notice, and two more states since then.

General Duty?

Current law creates tenuous protection against occupational heat.

The Occupational Safety and Health Act of 1970 at 29 U.S.C. section 654(a)(1) requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]”

Lawyers in labor and employment law see this General Duty Clause as requiring heat protection, a known hazard that can cause illness or death.

Commentary – and comments to the proposed OSHA regulation that McDonald has seen – discuss whether the General Duty Clause covers occupational heat.

In a concurrence in Secretary of Labor v. A. H. Sturgill Roofing, Inc., OSHRC Docket No. 13-0224 (Feb. 28, 2019) before the Occupational Safety and Health Review Commission, Chairman Heather L. MacDougall argued that “broadly-defined risks inherent in the work being performed,” such as heat, “unreasonably stretch” use of the clause.

Excessive heat “is inherent” in outdoor work and “only presents the possibility for harm, not an employment condition that by itself necessarily carries a significant risk of harm,” MacDougall emphasized.

In Sturgill, a 60-year-old temporary employee with underlying health risks including congestive heart failure began work Aug. 1, 2012 on a commercial roofing project in Miamisburg, Ohio.

Temperatures on the sunny day reached 82 degrees with 51% relative humidity when heat illness overcame the man. Coworkers saw the man “walking like clumsy.” By midday, he “collapsed and began shaking.” He died later of complications from heat stroke.

The roofing company had put protections in place, the opinion explained in ruling for the employer and reversing the administrative law judge’s decision.

The decision listed the facts in the company’s favor. The company gave the new employee the lightest duties, according to its acclimatization plan. Supervisors had received training on signs of heat illness. The foreman encouraged breaks under shade.

The foreman paid attention to the new employee. He saw the man drink 44 ounces of ice water on break, the decision said.

The employer couldn’t ask about the temporary employee’s health because of the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA), the decision explained.

‘Weird Juncture’

No one really knows where the OSHA regulations will go. The phrases that come to mind to McDonald are “weird juncture,” “crystal ball,” and “read the tea leaves,” and that’s from her vantage point in Washington, D.C.

Federal regulations would help businesses, she said. What may happen, over time, is a regulation that may be more flexible and with more scientific basis.

“I think part of the issue now is OSHA hasn’t really gotten more data, maybe some but not enough to really prove that what that hazard is that exists that essentially triggers” the need for intervention, McDonald said.

The problem of heat for employees remains charged with variables, not just the temperature, but how each individual responds to it, including underlying conditions that the Sturgill case demonstrates.

And employees might come to work hung over or have illnesses that may not be known to employers on a day-to-day basis, McDonald said. The employee may not even be aware of the hazards under those physical conditions.

Even now, “most of our clients have some form of plan in place” across industries, McDonald said. An extensive, strict regulation, no matter how well-founded, could create problems with application across the wide range of workplaces.

Geography, climatological and political, makes things difficult for large employers, McDonald explained.

Interstate operations, which must comply with regulations in all states where they work, face wide-ranging requirements. For those crews, McDonald said, acclimatization also becomes challenging because quickly changing work sites may be in different climates.

“It’s difficult for employers across multiple states to harmonize the program that works well for employees,” McDonald said, “but when you have something at the federal level that is as granular as what they proposed, it’s almost even more difficult because it does not account for the nuance.”