By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Arizona is taking its first tentative steps to potentially adopting meaningful and measurable standards to ensure employers are keeping their workers safe in the heat.

In a new order Thursday, Gov. Katie Hobbs formed a task force to develop a proposal by the end of the year detailing what changes are needed in standards that govern worker safety.

Companies already are supposed to protect employees from being injured or made ill from heat. But that exists only within the general — and non-specific — duty of employers to provide a safe workplace. While there are guidelines, there is nothing in the rules that tell employers exactly what steps they are expected to take, including providing shade, water, rest periods and even training and acclimatization of new workers.

Dennis Kavanaugh, who chairs the Industrial Commission of Arizona, said that lack of specifics can make it harder to go after errant companies.

“The ‘general duty’ clause is sometimes difficult to define,” said Kavanaugh. “Or you had to be very good at collecting your evidence to support it.”

Kavanaugh used to head the agency’s legal department — the people who had to make the case that an employer was creating an unsafe environment.

More definitive rules, Kavanaugh said, will help not only the commission but companies who then would know exactly what they are required to do — and what will keep them from getting into trouble with the commission.

“I think employers appreciate having specificity and certainty in terms of what they need to do in certain conditions,” he said.

In some ways, the state is late to the table in all of this. Tucson adopted its own requirement last year that companies doing business with the city must have specific heat safety plans, detailing everything from the availability of water and access to shaded areas or air conditioning to the ability to take regular and necessary breaks as needed.

Phoenix has similar rules. Tempe is moving ahead with its own specific safety plan for anyone who works outdoors, with requirements that water and shade be available within a quarter mile of work areas and a mandate for 10-minute breaks every two hours during heat advisories.

That compares to what exists now at the state level are more general guidelines, including the availability of the commission’s Division of Occupational Safety and Health to offer “free and voluntary consultations for employers.”

All this — if it occurs — could be a big change.

Arizona’s oversight is based on a state law that now requires that employers must provide a workplace that is “free from recognized hazards that are likely to cause death or serious physical harm.” But there is nothing that spells out at exactly what point, when it comes to working in the heat, that the actions or inactions of a company cross the line.

Commission Director Gaetano Testini said one reason the state does not now have anything more specific is that his agency has been “collecting data.” Now, he said, that process has become more formalized with the formation of the task force that includes not just health and safety experts but a fair number of representatives of both industry and labor.

That task force is supposed to report back by the end of the year, with the recommendations going to the full commission.

But it remains unclear what eventually will result. Testini sidestepped questions about how specific those recommendations will be — like whether there will be actual numeric standards about what a company has to do to protect its workers when the heat reaches a certain point.

“Let’s see what the task force comes up with,” he said.

“Then it will get presented to the commissioners,” Testini said. “The commissioners will vote on it.”

But even the governor’s executive order provides a bit of leeway — and the possibility that, even after all this, there will not be hard-and-fast standards.

Hobbs is calling what the task force is being asked to produce to be heat “guidelines” for employers. And Kavanaugh said the five-member commission may conclude that, rather than enacting a formal rule with standards, it might be preferable to approve guidance that employers can use to determine what will keep them out of trouble.

In fact, the only mandate in the governor’s order is for the commission to create a “recognition program” for employers that “go above and beyond basic safety requirements ... with regard to heat safety.”

Kavanaugh said even with only the current general requirement to keep workers safe, Arizona employers seem to be doing a good job of protecting their workers.

“We haven’t had very many heat-related injuries and fatalities, really, over the last two years,” he said.

“Many of the construction companies, they get it and make the investments.”