The D.C. law firm that Mayor Brandon Scott hired to investigate safety practices after a sanitation worker died of heat stroke specializes in representing companies involved in mining, oil and gas, chemical manufacturing and other areas as they try to avoid running afoul of workplace safety laws.

Conn Maciel Carey LLP touts its “unique relationships with the key regulators” as its team of lawyers – “the deepest bench in the country” – assists companies as they navigate legal issues around employee safety.

On one of the most contentious of these issues, the effort to create a national standard to protect millions of workers from the deadly effects of extreme heat, the law firm has played a key role representing the companies pushing back against it.

“My question is why the city of Baltimore would hire them?” said Jordan Barab, who served as a deputy assistant secretary at the federal Occupational Safety and Health Administration (OSHA) between 2009 and 2017.

“There’s got to be hundreds of good, decent consulting firms you could hire that aren’t in the middle of the political controversy over the weakening of federal standards,” said Barab, who now writes a newsletter about workplace safety and labor issues.

The firm’s founding partner, Eric J. Conn, has been quarterbacking the efforts of The Employers Heat Illness Prevention/Protection Coalition, a group of companies and trade groups that includes construction, energy, manufacturing, petroleum refining, chemical manufacturing, supermarkets, utilities and the warehousing industry.

Their efforts have already resulted “in direct changes to regulatory language and decisions by OSHA…as well as industry carve-outs and important exemptions,” the company notes in its blog.

Conn has spelled out the coalition’s position in formal comments to the Labor Department on the federal government’s long-sought workplace heat protection standard.

Under the pending federal standard, employers would have to provide drinking water and rest breaks based on heat index thresholds and provide a minimum 15-minute paid rest break every two hours during extreme heat conditions.

Among other provisions, employers would be  required to put in place a system for monitoring workers for signs of heat-related illness.

“Economically burdensome”

Industry lobbyists, calling major features of the draft plan “economically burdensome” and “ineffective,” have pushed for a myriad of changes, including that it not cover indoor worksites.

“The majority of very serious heat-related illnesses occur in outdoor environments,” Conn wrote last December, while also arguing the rules for indoor spaces would be “difficult or indeed impossible” to enforce.

OSHA has “vastly underestimated” the costs and time burden on employers under the heat standard, Conn wrote, decrying the difficulty of everything from installing fans and air conditioning at worksites to purchasing and using thermometers and other equipment to assess the daily temperature.

Rather than “bright-line” standards for how long new workers should be given to acclimate to hot conditions at their workplace, the rules should allow for regional differences, he argued.

“While workers in Florida may be accustomed to working in warmer temperatures for the majority of the year, workers performing the exact same work in Minnesota may not be so accustomed,” Conn wrote, stating that a client company from the South “said their employees are comfortable working at a heat index of 83 degrees.”

The opposition reflects industry’s “reflexive antagonism to any kind of standards, no matter how beneficial or common sense”  – Workplace Safety Advocate Scott Schneider.

Overall, the new heat standard should be centered on training rather than requiring specific safety measures, Conn said, and should be flexible and performance oriented.

Protecting 36 Million Workers

Advocates for workers say such changes would gut a heat standard that’s long overdue given the well-documented impact of heat on the country’s workers and the record-shattering heat waves recently recorded as the planet warms up.

Heat is the leading cause of weather-related deaths in the U.S., killing more than 200 people last year. The federal Labor Department estimates that the new regulations could provide protection for some 36 million workers, particularly people of color, who are more likely to work in jobs that expose them to extreme heat.

The performance-based approach that industry lobbyists are calling for may be reasonable for refineries or chemical plants “with very complex processes,” Barab said, but it makes no sense when it comes to protecting workers from sweltering hot conditions.

“With heat we know what’s needed: water, shade, rest, acclimatization, and a training and emergency response plan,” he said. “Those five are the basic elements that everybody knows.”

Scott Schneider, who has worked as an industrial hygienist with labor unions for 40 years, said the opposition to heat standards amounts to a “reflexive antagonism to any kind of standards, no matter how beneficial or common sense.”

“You have to let people get used to the heat. That saves lives,” said Schenider, a member of the National Council for Occupational Safety and Health. “But the industry view is that everybody should work 110% every day.”

Employer resistance to indoor workplace heat standards, he argued, is also beyond the pale.

“You can’t tell me that people that work in restaurants, in laundries, in boiler rooms and even teachers in buildings without air conditioning aren’t very uncomfortable. Are they going to die from distress? Yeah, someone will.”

Too Little, Too Late

The stakes were made starkly clear in Baltimore on August 2 when Ronald Silver II, a Department of Public Works employee, died at the end of his workday staffing a trash truck after collapsing on a woman’s doorstep begging for water.

The temperature that day hit 99 degrees, with humidity sending the Heat Index into the triple digits and prompting the city to declare Code Red conditions.

His death from heat stroke came just days after the latest of several reports by the Baltimore Office of the Inspector General about chronic poor working conditions for city sanitation workers, particularly the failure by DPW to provide working air conditioning and cold water at its sanitation yards.

• DPW knew about poor working conditions at solid waste facility for months, IG says (7/23/24)

After the City Council scheduled a hearing on Silver’s death, Scott announced the hiring of Conn Maciel Carey.

“This independent review process will generate recommendations that, once implemented, will enhance the health, safety and welfare of all city employees,” Scott said in a joint statement with Acting DPW Director Khalil Zaied.

The lawyer for Silver’s family, Thiru Vignarajah, has questioned why the city is hiring the firm when investigations were already underway by the Maryland Occupational Safety and Health Administration (MOSH) and Baltimore Police.

The Scott administration has not responded to a request by The Brew to release its contract with the D.C. law firm, whose safety recommendations are expected to be released by the end of September.

Among the gestures that came too late to have saved the 36-year-old father of five is a heat standard for the state, which is currently underway at MOSH.

Writing in his blog, Barab praised the agency for reviving the process after it stalled during the Larry Hogan administration and observed that the standard would “likely have saved Silver’s life” on August 2 had it been in effect and been followed by DPW.

“He would have had access to water and rest breaks,” Barab wrote. “If he had gotten sick anyway, his trained co-workers would have immediately recognized the signs of heat illness and implemented the emergency response program.”