As Texas swelters, local rules requiring water breaks for construction workers will soon be nullified

“As Texas swelters, local rules requiring water breaks for construction workers will soon be nullified” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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In a week when parts of the state are getting triple-digit temperatures and weather officials urge Texans to stay cool and hydrated, Gov. Greg Abbott gave final approval to a law that will eliminate local rules mandating water breaks for construction workers.

House Bill 2127 was passed by the Texas Legislature during this year's regular legislative session. Abbott signed it Tuesday. It will go into effect on Sept. 1.

Supporters of the law have said it will eliminate a patchwork of local ordinances across the state that bog down businesses. The law's scope is broad but ordinances that establish minimum breaks in the workplace are one of the explicit targets. The law will nullify ordinances enacted by Austin in 2010 and Dallas in 2015 that established 10-minute breaks every four hours so that construction workers can drink water and protect themselves from the sun. It also prevents other cities from passing such rules in the future. San Antonio has been considering a similar ordinance.

Texas is the state where the most workers die from high temperatures, government data shows. At least 42 workers died in Texas between 2011 and 2021 from environmental heat exposure, according to the U.S. Bureau of Labor Statistics. Workers' unions claim this data doesn't fully reflect the magnitude of the problem because heat-related deaths are often recorded under a different primary cause of injury.

This problem particularly affects Latinos because they represent six out of every 10 construction workers, according to U.S. Census Bureau data.

Unions expect heat-related deaths to go up if mandated water breaks go away.

“Construction is a deadly industry. Whatever the minimum protection is, it can save a life. We are talking about a human right,” said Ana Gonzalez, deputy director of policy and politics at the Texas AFL-CIO. “We will see more deaths, especially in Texas' high temperatures.”

The National Weather Service is forecasting highs over 100 degrees in several Texas cities for at least the next seven days.

Heat waves are extreme weather events, often more dangerous than tornadoes, severe thunderstorms or floods. High temperatures kill people, and not just in the workplace. Last year, there were 279 heat-related deaths in Texas, based on data analysis by The Texas Tribune.

In 2022, Texas saw its second-hottest summer on record, and an extreme drought swept the state. This summer is not expected to be as hot as the weather pattern known as La Niña eases, which typically brings dry conditions to Texas, state climatologist John Nielsen-Gammon said.

Still, climate change amplifies the effects of heat waves, said Hosmay Lopez, an oceanographer at the National Oceanic and Atmospheric Administration who studies heat waves. Climate change causes heat waves to stretch for longer periods of time, reach higher temperatures and occur more often than they would otherwise. The problem is especially pronounced in dry areas of the Southwest due to a lack of vegetation and soil moisture, which in wetter regions produces a cooling effect through evaporation.

At the same time, he added, increased urbanization across the U.S. — especially in places like Texas where cities are expanding — makes more people vulnerable to health dangers from extreme heat due to the “urban island” effect. Essentially, the combination of concrete and buildings, plus a lack of green spaces causes ground-level heat to radiate, increasing the temperature in cities.

“The impact of climate change on extreme heat is not only enhanced [by weather events] but also enhanced through social dynamics as well,” Lopez said.

HB 2127, introduced by state Rep. Dustin Burrows, R-Lubbock, is perhaps Texas Republicans' most aggressive attempt to curb progressive policies in the state's largest, liberal-leaning cities. Under the new law, local governments would be unable to create rules that go beyond what state law dictates in broad areas like labor, agriculture, business and natural resources.

Beyond eliminating mandated water breaks for construction workers, opponents of the legislation argue that it will also make it more difficult for cities and counties to protect tenants facing eviction or to combat predatory lending, excessive noise and invasive species. Labor unions and workers' rights advocates opposed the law, while business organizations supported it, including the National Federation of Independent Business, a lobbying group with more than 20,000 members in Texas. Abbott said it would “provide a new hope to Texas businesses struggling under burdensome local regulations.”

Supporters of HB 2127 say that local regulations on breaks for construction workers are unnecessary because the right to a safe labor environment is already guaranteed through the Occupational Safety and Health Administration.

Water breaks are better solved by OSHA controls, argued Geoffrey Tahuahua, president of Associated Builders and Contractors of Texas. Tahuahua believes local rules impose a rigid scheme that, unlike OSHA guidelines, does not allow the flexibility needed to tailor breaks to individual job site conditions.

“They try to make one size fits all, and that is not how it should work,” he said. “These ordinances just add confusion and encourage people to do the minimum instead of doing the right thing.”

David Michaels, who was head of OSHA from 2009 to 2017, disagreed with the approach of HB 2127 proponents.

“Under OSHA law, it is employers who are responsible to make sure workers are safe,” said Michaels, now a professor at the George Washington University School of Public Health. “And we have compelling evidence that they are doing a very poor job because many workers are injured on the job, especially in Texas.”

Michaels pointed out that OSHA does not have a national standard for heat-related illnesses and issues citations only for over-exposure to heat after an injury or death, but not before that occurs.

“The better solution would be to have a national standard, but since we do not, local ordinances are very important for saving lives,” he said. “Prohibiting these local laws will result in workers being severely hurt or killed.”

Gonzalez, from the Texas AFL-CIO, disagrees with the idea that local regulations hurt businesses.

Mandated water breaks “were passed in 2010 in Austin and construction is still growing, especially in the state's largest cities,” Gonzalez said. “It is simply false, an excuse to limit local governments' power and an intrusion into democracy.”

HB 2127 does not impede the enactment of a state law establishing mandatory breaks for construction workers, and during the regular session, two bills were filed to that effect.

House Bill 495, authored by Rep. Thresa Meza, D-Irving, sought to establish 10-minute mandatory breaks every four hours for contractors working for a governmental entity. House Bill 4673, by Rep. Maria Luisa Flores, D-Austin, would have created a statewide advisory board responsible for establishing standards to prevent heat illness in Texas workplaces and set penalties for employers who do not comply with them.

Neither bill made it through the legislative process.

Daniela Hernandez, state legislative coordinator for the Workers Defense Project, said she hopes legislators will push for a state law mandating water breaks for workers. She added that she would not discard the possibility that cities sue to try to keep their water break ordinances.

“Without an ordinance or a law, there is no safeguard. There is no guarantee that the worker will have those water breaks,” he said. “We will keep fighting.”

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/06/16/texas-heat-wave-water-break-construction-workers/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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