On March 26, 2024, the Phoenix (Arizona) City Council unanimously passed n ordinance requiring all city contractors and subcontractors to develop and maintain a written heat safety plan to prevent heat-related illnesses and injuries in the workplace. Outdoor workers in Phoenix may be susceptible to heat-related illness and injury due to the extreme Arizona temperatures. In 2023, for example, the City experienced 133 days with temperatures 100 degrees or higher and a record 55 days when temperatures exceeded 109 degrees.

Minimum Plan Requirements and Penalties

Under the new Phoenix ordinance, heat safety plans must, at minimum, provide for:

1. Access to clean, cool drinking water for employees and contract workers.
2. The ability for employees and contract workers to take breaks as needed and for hydration purposes.
3. Access to shaded areas and/or air conditioning.
4. Access to air conditioning in vehicles with enclosed cabs by May 1, 2025.
5. “Effective acclimatization practices” to help employees and contract workers adapt to outdoor work.
6. Training for employees and contract workers regarding risk factors, prevention, signs and symptoms, administration of first aid and reporting of heat illness and injury.

Contractors that fail to comply with the ordinance will initially be given notice and an opportunity to correct the deficiency. Penalties for further noncompliance may include cancellation, termination or suspension of the City contract involved or suspension or debarment of the contractor or subcontractor altogether. Contractors are required to ensure their subcontractors comply with the ordinance.

Regulatory Landscape for Heat-Related Illness Protections

The Phoenix ordinance creates the first heat protection scheme for workers in Arizona. Like most states, Arizona does not impose heat illness regulations statewide. Only California, Washington, Oregon, and Colorado have adopted such measures to protect outdoor workers. On the national level, the Occupational Safety and Health Administration (OSHA) has taken steps toward enacting a federal heat illness standard for workers, but has not yet done so.

Absent a federal or state standard, employees must abide by OSHA’s General Duty Clause, which requires employers to provide employees with “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.”¹ Extreme heat of the kind experienced during Phoenix summers could be considered such a hazard.

The unanimous passage of the Phoenix ordinance contrasts sharply with how heat regulation has recently fared in other states. Earlier in March, the Florida legislature passed a bill forbidding any city, county or municipality from enacting heat protections for outdoor workers. This action killed a proposed Miami-Dade County measure that would have imposed worker protections when temperatures reached 95 degrees. In 2023, Texas Governor Greg Abbott signed into law a bill prohibiting local governments from, among other things, regulating work breaks. Although the Texas District Court for Travis County ruled portions of the bill unconstitutional, the legislation remains in effect pending the outcome of further litigation. The law has nullified rest break ordinances adopted by Austin and Dallas for construction workers.

Takeaway

Phoenix city contractors and subcontractors should develop heat safety plans that comply with the new ordinance. Plans should consider the unique circumstances of each worksite and workforce. Even employers not covered by the new ordinance should keep in mind that they are nonetheless subject to OSHA’s General Duty Clause and consider appropriate worker protections from the heat. Employers with questions or concerns about heat-related obligations under the Phoenix ordinance or the General Duty Clause should contact their employment counsel.

Footnotes

¹ 29 U.S.C § 654.