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“New York and other states should pass laws protecting workers from extreme heat, and if they don’t, they should at least allow localities to act.”
As we experience a scorching heat wave in New York, thousands of people are working outside in the blazing sun, or in oven-like conditions indoors, without air conditioning. It’s incredibly dangerous: workplace heat kills over 500 workers each year and injures or sickens nearly 25,000.
When I tell friends and neighbors that Florida and Texas have prohibited blistering cities like Miami and San Antonio from passing laws requiring workplace heat protections, they’re shocked. Two of our largest and hottest states prevent cities even from mandating water or rest breaks.
What’s less known, though, is that the bluest of blue cities—New York City—may be in the same situation.
New York City Mayor Zohran Mamdani last week released a far-reaching executive order to keep workers safe from workplace heat. The order directs a massive public education campaign about workplace heat protections; it also requires city agencies to develop heat protection requirements for city workers and contractors.
The order was propelled by years of worker and community advocacy and is a vivid example of city government using its powers to improve people’s health, safety, and quality of life—even more important in the absence of federal action.
What’s curious, though, is what’s missing from the mayor’s executive order: it does not require private-sector employers to provide water, rest, or other workplace heat protections for their employees, as California, Maryland, Oregon, and other worker-friendly jurisdictions do. Why would this mayor, who has made working people the centerpiece of his administration, leave out something so important?
The reason: state law may preempt, or prevent, New York’s cities and counties from passing their own laws on workplace heat. New York and other states should pass laws protecting workers from extreme heat, and if they don’t, they should at least allow localities to act.
Conservative states like Florida, Texas, and Tennessee have passed laws preventing local governments from passing sensible and humane laws on a host of subjects—not just workplace heat, but also paid sick days, gun laws, environmental protections, LGBTQ rights, and more.
These deep red states don’t foreclose local action because they want to legislate at the state level; rather, they just don’t want any protections in these areas at all. It’s like the high school dating rules: “I don’t want him, you can’t have him,” except the stakes are much higher than teenage romance.
In many cases, preemption involves largely white state legislatures quashing the will of cities with sizable Black and other minority populations; the Economic Policy Institute described preemption as “embedded in a racist history.” This kind of preemption is not just racist but also profoundly undemocratic. Some state legislatures have even rolled back successful statewide ballot initiatives on these subjects, strong evidence that the ultimate goal is thwarting democratic decision making not to their liking.
Sometimes, though, without state legislatures saying anything, a judge will conclude that state law on a given issue occupies a field and prohibits all local law on that topic. This sort of decision is what may create an impediment for enforceable private sector heat standards in New York City. An obscure 1989 court case found such “field preemption” in relation to a Suffolk County law on what was then cutting-edge workplace technology: video display terminals (a.k.a. screens).
There are wonky legal arguments to distinguish the situation with workplace heat from the facts and law in that Suffolk County case, which didn’t even go to the state’s highest court. But the very existence of the 1989 case will give opponents of local workplace heat laws fodder to fight these protections. Even in a best case scenario, this will mean years of delay before implementation of any city law mandating workplace heat protections broadly throughout the private sector.
Meanwhile, workers continue to face serious danger on roasting airport tarmacs, construction sites, and in all of our neighborhoods as they make deliveries and cook food.
In the absence of federal action to protect workers from extreme heat—highly unlikely under the Trump administration—the state of New York should act. A state-level bill on the subject has been pending for several years running. It contains the same eminently feasible measures on extreme workplace heat as those in place in several states, specifically, requiring employers to provide water, rest, shade, and training about heat dangers, along with doing their own employer-focused safety planning.
But until New York State passes its own law protecting people from extreme workplace heat, it should explicitly allow local governments to act. And as temperatures rise across the country with longer and hotter heat waves than ever before, all other states—yes, including Florida and Texas—should protect workers from heat or get out of the way.
Terri Gerstein is the director of the NYU Wagner Labor Initiative at NYU’s Robert F. Wagner Graduate School of Public Service. Previously she enforced New York labor laws for over 17 years, including as labor bureau chief in the Attorney General’s Office.