Ep. 84: U.S. Rep. Mark Messmer on Heat Standard Mandates

All employers are required to provide their employees with a workplace that is free from temperature-related hazards, yet a rule proposed by the Occupational Safety and Health Administration (OSHA) would add an unnecessary new layer of one-size-fits-all red tape for small businesses. NFIB member Kevin Ciak explains how this harmful rule would affect his business and employees, and U.S. Representative Mark Messmer discusses pro-small business legislation in Congress that would stop the unnecessary rule. 

• Tell your members of Congress to support the Heat Workforce Standards Act and protect small businesses from unnecessary, one-size-fits-all OSHA regulations. 
• Learn more about the proposal from NFIB’s issue explainer.  

Please rate, review, or like this podcast to support small business issues. 

Transcript

SPEAKER_03 0:00

Small businesses are already taking those steps because they either share the same values that General Pallet does, that people truly matter, and we want our people every day to go home safe and be with their families. And in addition to that, we're looking to grow our businesses, and we don't want the distraction associated with an employee getting injured. So as we said earlier, this is a solution in search of a problem that small businesses across America are already on top of and already addressing.

SPEAKER_04 0:32

The Small Business Rundown is the official podcast of the National Federation of Independent Business, the member-driven voice of small business. Every two weeks, a new episode offers resources for small business owners and information on relevant laws and regulations. NFIB and our members advocate to keep U.S. small businesses strong and independent in Washington, D.C., all fifty states, and the nation's courts.

SPEAKER_00 1:55

So they investigate workplace incidents. They have enforcement mechanisms, including fines. Essentially any workplace injury, things that could be hazardous in the workplace is under OSHA's purview. And they are the key regulator on the heat standard. They are the uh agency that has proposed this, and they are the agency that would oversee these mandates.

SPEAKER_02 2:35

That's correct.

SPEAKER_00 2:36

OSHA is a floor, so the federal government is a floor on workplace health and safety, so OSHA can set a floor for states, and then states that have their own essentially OSHA equivalents can go further, and they can impose more mandates, more requirements on businesses that go above the federal government. It's definitely a solution looking for a problem. There is no good I have not heard a good argument. I have not seen any data that has shown that workplace heat is a pervasive issue, that there's a need for the federal government to step in and regulate on this issue. Small businesses are already taking care of their employees. They are already taking steps to make sure that there's not incidents at their workplaces. Small businesses, their reputation is everything. And so they want to keep their employees safe. They want to make sure that there's no incidents at their workplace, and they they don't, OSHA has come second. They don't want, obviously, they don't want the investigation enforcement, but keeping their workers safe is is number one.

SPEAKER_02 3:51

Sure.

SPEAKER_03 3:52

So General Pallet is a pallet manufacturer and recycler. We also do custom crating as well. We're located in Flemington, New Jersey. We also have a national network of partners that enable us to produce pallets across the country cost effectively for our clients. And these roles would have a significant impact on us because most of our warehouses are not air conditioned and some of our pallet operations are outside. What's concerning and more than anything is the uh additional reporting requirements, because as a small business, you know, we're not like a large corporation that has lots and lots of people. Reporting requirements typically fall upon a very small amount of people, and these roles have significant reporting requirements associated with them. So that's that's actually a great question because all of the tenets of the practical implementation of what these rules are asking us to do from a protection standpoint are actually already in place. And Dylan, I think you hit it, this really is a solution in search of a problem. So, in terms of you know what you you asked about, really the prevention begins long before it actually gets hot outside. So for us, when we onboard a new employee, even if it's in the middle of January, part of their onboarding training is a whole segment on heat management. That training is repeated annually, typically in May or June, before the hot weather starts to really take hold in the northeast for all of our employees again. Most of our employees do work in a warehouse. While the warehouse is not air conditioned, we've got very large fans that are circulating air and keeping air moving. We've also got additional floor fans out on the floor to keep air moving to keep our employees cool. We have the normal required mandated breaks in the morning, in the afternoon, and lunch. When the temperature gets above 90, especially with the humidity, we typically have additional brakes that are in place during the day to allow our employees time to cool off. We supply our employees with flavored ice. We've got a chilled water dispenser in our break room. We provide in the summer water bottles for all of our employees so that they can go and fill their water bottles. So we've got all of the procedures in place to help you know maintain a safe working environment. And these have been in place for years, you know, ever since my business partner and I bought the company five years ago. So the main thing it would change is really the additional burden of all the record keeping. Under the requirements, we would need to track the temperature, we would need to track the humidity. And then associated with each one of those, we would need to document all of the actions that we're taking in response to those changing conditions. And that ultimately means a distraction from growth. It ultimately means we may need to hire someone. If you hire more people, that means the cost of your product goes up. If the cost of your product is going up, that means inflation across America. If you've got inflation across America, then that's a further challenge for the price of product and consumption.

SPEAKER_00 7:39

The Hill is unaware of this for a large part. There is a champion and then co-sponsors, but a lot of Hill staff, a lot of members of Congress don't even realize that this is still out there. A lot of small business owners across the country don't even realize that this is a threat to their business, that this even is out there, is proposed. And yet this is a massive threat. There's businesses that don't know of all the mandates, and yet they may face this enforcement action and these new mandates because they aren't in compliance should this become finalized. And so the administration largely is not commenting. And so that's the big concern is that this could still happen. This is still out there, it's not gone yet. And the Hill does need to step in and say, no, there should not be a federal heat standard. The administration should withdraw this rule. And small business owners, like Kevin said, may have to hire new employees, may have to raise prices because of those new costs. The rule in itself is particularly burdensome to small businesses compared to the larger competitors because they don't have a compliance department. They don't have a human resources in some cases. And so this really does fall on the business owner who is running their business and may not have time to do these new mandates, this new paperwork. And so it may end up forcing a new employee or more in some cases just to comply with the rule. But states we've also seen, and Tim, you may be able to hit on this, include a private right of action so workers could potentially sue if their business is not providing this to them. And so that would be particularly costly to small businesses if that if that were to be passed and enacted.

SPEAKER_03 11:20

And these rules are really no different. The other thing that I would say is in addition to reaching out, sometimes I found it very difficult where I'll, you know, reach out to a member of Congress or the Congressional Staff Office, and I kind of get the runaround from their staff, and I get a message of, hey, listen, I'll convey it to the congressman and I'll follow it up with a question always, well, what is the congressman's position? And it's well, I'll convey your concern. And I don't really get a clear answer back, and I don't really get a good feeling that my concern is being adequately conveyed. That is really an opportunity if you're a member of NFIB to get in touch with NFIB because they can be very instrumental in opening that door and actually securing that meeting between you and the elected official to allow you to share that concern directly. NFIB has been instrumental in securing actually congressional support as a result of those meetings as well. So you've been an incredible partner.

SPEAKER_00 12:54

This one being no different. And then on top of that, like Kevin said, having going in and wanting to meet with your member of Congress moves mountains. And so having a real small business owner in front of an elected official goes a lot farther than some lobbyist in D.C. And so telling a real world story of I am a small business owner in your district, and this heat standard or any other issue is particularly burdensome. And this is why member Congress is going to be very likely to act on that issue.

SPEAKER_03 13:39

So the reporting burden that comes with these rules is a distraction. By the same token, having an employee injured for any reason is also a distraction because you've got filings that you need to do with OSHA. You've got a worker's comp claim, your insurance rates go up. We have every reason, purely from a financial standpoint as a business owner to ensure that our employees are safe every single day. Beyond the financial piece, at General Pallet, our values are integrity, relationships, and results. And in particular, you've got integrity and you've got relationships, which tell us that we look out for people, we treat them well, whether it's our clients or whether it's our associates. So at the heart of what the legislation is trying to accomplish, many small businesses are already taking those steps because they either share the same values that General Pallet does, that people truly matter, and we want our people every day to go home safe and be with their families. And in addition to that, we're looking to grow our businesses, and we don't want the distraction associated with an employee getting injured. So as we said earlier, this really is legislation that is a solution in search of a problem that small businesses across America are already on top of and already addressing.

SPEAKER_04 15:38

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SPEAKER_01 16:35

These kind of examples of egregious, heavy-handed overreach by the federal government are exactly what I came to Washington to fight. Sure. So I'm a uh second generation business owner. Our dad started our plumbing and heating business in 1970. Me and my two brothers bought them out about 25 years ago. And now we're in the process of uh transitioning to my son and my nephew for the third generation of ownership. We have about 50 employees. We work in southwest Indiana and anywhere within about an hour to an hour and a half of Jasper, which is my hometown. I was a mechanical engineering graduate from Purdu University and a licensed professional engineer. And our company does a lot of design build and mechanical construction. We do commercial and industrial plumbing and HVAC primarily. One of our largest customers is the Crane Naval Surface Warfare Center, and uh, which which was kind of the issue affecting them potentially in the 2005 BRAC is really what launched my desire to seek public office, you know, and eventually led me to serve in Congress. Well, sure. So the heat standard is probably one of the most egregious, onerous record keeping bills and the punitive fines for non-compliance. It requires whether you're inside or out, summer or winter, Florida to North Dakota, anytime you have a heat within a 15-minute increment over 80 degrees, you have to record those temperatures at every work site, every job site, every place your employees are working. And if you hit a 15-minute window over 80 degrees, that means every 15 minutes, you or your employees are logging and and and record keeping that temperature impact on your employees. Well, 80 degrees, your your air conditioning could go out in your restaurant. And it could be 80 degrees. And that means all of your waitresses and all of your cashiers all have to have a mandated break every you know every two hours into an air-conditioned environment. Well, good luck with that if you're an asphalt crew or a roofing contractor or a farmer. I mean, it is absolute nonsense. And I could be on a construction site where it might be 75 degrees on the first floor and it might be 80 degrees on the second floor. So, you know, we we've got a construction business. We could be on 10 different construction sites a day. That means all of those have to have that record keeping. I could have 10 service guys that visit three different customers throughout the day. I mean, that's 30 work sites. And each one has to be monitored, recorded, and then the mandated water breaks, mandated rest breaks, you know, in air conditioning every two hours. It would be the most god-awful piece of rulemaking and regulation that, and and and it punitively hits small businesses worse than anybody. I mean, if you have a thousand employees and they're all working in the same space, you might take one person to monitor and record and and carry that out. Well, if you have five people at your business or ten people at your business, it takes the same record keeping for five or ten that it does for a thousand. So it's going to punitively hit small businesses more than anybody. And there's and there's no carve out, there's no exemption for you know companies under 25 or 50 or 100 people. It's one standard onerous regulation for everybody. And so when I got elected last year, or in 2024 now, that heat standard rule had just been rolled out. And one of the first bills I filed was the Congressional Review Act to repeal that rule by OSHA. And it took probably nine months for the labor secretary to understand. She said, Well, we want to put one standard in place for the country to keep blue states from over-regulating their employees. And I said, ma'am, it doesn't work that way. The OSHA standard is the minimum standard, and it's not going to stop California or New York or any other blue state from ratcheting up from there. So it's not going to have the intended purpose that you want to try to put a cap on it. It sets the floor. And so finally by September, they said, you know, we agree with Representative Mesmer, and the president has agreed, you know, if we get the Congressional Review Act through the House, simple majority, through the Senate, simple majority, and the president signs it, it blocks OSHA from ever regulating in that space again unless they have congressional authority. You know, just because Virginia wants to do it, or just because California wants to do it, good luck. And what they're going to end up doing is continuing to drive businesses out of those states. You know, if Illinois wants to do it, great. We'll gladly take those companies relocating into Indiana, which has happened on a large scale already anyway. It would just push businesses out of those states when it was physically possible into states that have less restrictive regulations. And the general duty clause, you know, under OSHA already requires. I mean, just under the general duty clause, it gives employer employers flexibility to do exactly what this onerous, you know, the outcome. Me as an employer, I do not want my employees to undergo a heat illness. And we bend over backwards to make sure that our people have breaks, you know, get water. I mean, there's no restrictions on employees getting water on a job site. But the general duty clause requires all employers to properly take care of your employees in the situation that you know that the heat standard is trying to regulate prescriptively and onerously.

unknown 23:03

Trevor Burrus, Jr.

SPEAKER_00 23:03

You hit a great point there, Congressman, is that the General Duties Clause is already an enforcement mechanism for OSHA for bad actors in this space. And for listeners who don't know, General Duties Clause requires all employers to maintain a health and safety workplace. And OSHA is very publicly open about heat being covered under that. And what we hear is small businesses owners are already taking care of their employees. They're already putting things in place to make sure that these injuries and illnesses are not happening. But really, all this heat standard is doing is adding new mandates on small businesses who who may not have the resources to actively comply with their existing workforce. They may have to hire, they may have to do other things. And so I think you hit the nail on the head that this really does not add any enforcement mechanism for OSHA, but really is just employer mandates or small businesses that quite frankly just don't make any sense.

SPEAKER_01 23:56

Right. Well, I I mean, I made this example when we had the hearing on the heat rule in the Education Workforce Committee last summer. I said, my 50 years of being involved in our family business with hundreds of employees working on construction sites with thousands of other employees, I have never seen one time an employee on one of those job sites have a heat-related illness. And I can't, I cannot be the outlier. It's just not possible. Because as a business owner, your employees are your most valuable resource. And we're not going to do anything that would put them in harm's way. And we work in hundreds of factories and industrial settings. And those businesses go out of their way to provide cooling relief if they don't have air conditioned plants. They go out of their way to create work conditions that take care of their employees. Because if you don't have employees to carry out what your business does, you're shooting yourself in the foot. So I have never seen a heat illness on a job. And I cannot be the outlier. There's more people in New York and Chicago on a hot summer day that are elderly people that live in an apartment with no air conditioning that suffer, you know, heat injuries than I've ever seen on a construction site.

SPEAKER_00 25:08

Right. Solution in search of a problem. Absolutely.

SPEAKER_01 25:42

I mean, good luck in Chicago in the wintertime getting anything done if you're a construction operator of uh of any kind. Yep, so Bill Cassidy, Senator Cassidy is the chair of the committee that would have that bill on the Senate side. He's agreed to be the Senate sponsor of this Congressional Review Act. And we've got a lot of co-sponsors already. If people want to reach out to their congressmen and they haven't co-sponsored this bill yet, reach out to their elected officials and ask them to get on board with this heat standard repeal. We've been told, simple majority, you know, the Senate uh chair Bill Cassidy will be the sponsor in the Senate, and the president has said we get it through the House and the Senate, he will sign it. Well, right now it's had the hearing in committee, and so now we're waiting for it to be scheduled for markup and the education workforce committee. I've talked to the chairman Tim Wahberg several times about getting it on the calendar. He's not committed to a date yet, but but he understands the importance of it. Like I said, when we had the hearing you know on it, there was we had set you know several industry groups, you know, come in and testify in support of the bill. I think the National Federation of Independent Businesses was one of the industry groups that was there in support of it. We've had 60 different business associations all endorse this legislation. So we just need to get it calendared. Uh, but the more Republican sponsors we have on the bill, the more likely the chairman will get it on the agenda sooner rather than later. The rule hasn't been finalized, so our clock to get it done has not started ticking yet. When a rule is finally promulgated, I think you have 60 session days to carry a Congressional Review Act bill through the process. So our our clock has not started to run, but we definitely want to get it done sooner rather than later. So as soon as, you know, the sooner we can get more sponsors and get more of our caucus members on board, the sooner we can get it out of committee and I'm certain it'll pass. And I would be pretty sure we've we had a a couple of uh Democrat uh co-authors when when we filed the bill, so hopefully we can make it a bipartisan effort, which it should be. Well, no, I appreciate your time. It it's an honor to be here representing small businesses for my district and across the state and across the country. We need more small business owners in Congress and at the state level. And at the state level, why does why does Indiana's process seem to work so well? Because the majority of the Republicans in the House and the Senate are business owners. And you get a lot better product when you have people who understand the impact on business at all levels. And uh it's it's an honor to be here and uh honor to be an NFIB member serving in DC and look forward to continuing to work to protect small businesses every day.

SPEAKER_02 28:55

You're welcome.

SPEAKER_00 29:01

Yeah, the Congressman made the call to action for small businesses to reach out to their members of Congress on the heat standard. You can do that through the link in the show notes. It would be great if our members would reach out to the members of Congress and let them know how burdensome this heat standard would be on their business and why Congress should repeal it.

SPEAKER_04 29:21

Thanks for joining us for this week's episode of the Small Business Rundown. Your continued support helps us amplify the issues that matter most. If you like this episode, please help small business owners find the podcast by giving it a rating, like, or review. You can find us at nfib.com and on YouTube, X, LinkedIn, Instagram, and Facebook.