(This post expands the scope of this blog, where the climate crisis and law's multi-sectoral responsive dexterity will be investigated.)
Introduction: Heat Stress as an Occupational Safety Hazard
In
IPCC’s Sixth Assessment Report on Impacts of Climate Change, Heat Stress as an
Occupational Safety Hazard (‘OSH’) has emerged as a “non-economic cost” to
workers’ livelihoods vulnerable to heat waves.[1] ILO’s 2024 report titled
“Heat at Work: Implications for safety and health” documents a spectrum of
physiological impacts due to high temperatures at workplace, from heat fatigue
and heat syncope (dizziness), to serious and fatal conditions of heatstroke,
kidney/cardiovascular/respiratory illnesses.[2] Workers directly or
indirectly exposed to threatening levels of heat are increasing across the
world, especially impacting vulnerable groups such as migrant, informal, women
and old-age workers in outdoor employment.[3]
Sectoral vulnerability to Heat Stress as an OSH exists in workplaces that are
constituted of manual workers, such as manufacturing units, construction,
transportation and agriculture, termed as “vulnerable employment” as distinct
from air-conditioned workplaces harbouring white collared workers.[4]
In
India, extent of this impact is affected by a labour force composition comprising
majority of the workers employed in informal, vulnerable employment demanding
physical labour.[5]
Relative recentness of Heat Stress as an OSH has brought into question the
effectiveness of extant labour law framework, that has developed the concept of
“safety” parochially. Moreover, a larger caveat here lies also in the fact that
labour law’s applicability is restricted by definition of “worker” in
respective statutes, that are most likely to exclude unorganised and irregular employees.
This legislative vacuum calls for an examination of the readiness of Indian
labour law framework to address heat stress, and explore how other
jurisdictions have dealt with it.
In this article, I begin by referring to some Indian workers’ safety legislations to see whether they have requisite provisions to cover heat stress as an OSH. Thereafter, I outline some interesting legislative actions in other jurisdictions that have recognised and introduced safeguards to protect workers in vulnerable employment. Thereafter, I posit a rudimentary roadmap for a legislative intervention in India.
Heat Stress as OSH in India
Beginning
with the legal framework of workers’ safety in legally covered employment is
prudent to unravel a bleaker state of affairs in unorganised, outdoor
employment. The Factories Act, 1948 governs the safety conditions of workers
employed in factories, where a factory[6] is not restricted to
buildings, and can extend to outdoor employment, as long as the fundamental
manufacturing process takes place.[7] Regarding workers covered
by the Act, there are no restrictions in terms of the mode of recruitment or
the requirement of remuneration, but they should be involved in manufacturing
processes as defined u/s 2(k) carried out in the factory. Thus, workers in non-manufacturing
vulnerable employment are excluded.
While
the general duties of employer emphasise maintenance of safety and risk-free
conditions at the factory, both specific to machinery and in general,[8] the workers also have a
right to demand adherence to these statutory standards.[9] Regarding medical
emergencies, the Act requires a certifying surgeon who is obligated to examine
employees and discern impacts of working conditions on their health. For Third
Schedule diseases, a requirements to disseminate requisite information to the
authorities and investigate their causes exist.[10] Although Section 13 provides
for maintenance of suitable ventilation and temperature controlling in the
premises for workers’ comfort, it assumes the employer’s ability to modulate
temperature levels that may not be possible in instances of heatwaves. Therefore,
in light of non-viability of mitigatory strategies, adaptative mechanisms
become important. In this context, the Act has provisions on prevention of
overcrowding at the place of work, availability of drinking water, facilities
for sitting, cool and well-ventilated shelters/rest rooms and resting intervals.[11] These facilities
are aided by free-of-cost availability to not deprive workers based on their
affordability.[12]
However,
certain inhibitory factors may limit accomplishment of heatwave-resilient
workplaces covered by the Act. Variation in employer’s duties on the basis of number
of workers employed make workers of small yet identically affected workplaces
vulnerable to heat stress. For instance, the provision for “cool” drinking
water during hot weather is limited to factories with more than 250 workers.[13] A threshold of at least
150 workers exists for the provision on rest rooms/shelters.[14] While it secures the
employers from investment overburden, it leads to worker vulnerability. Moreover, provisions for sitting facilities
and shelter rooms are not complemented by separate paid sitting intervals of
sufficient duration. This should be in addition to the resting intervals that
authorise a half an hour break for every five hours, due to glaring disparity
between working hours and duration of authorised interval, especially when
workers working under heat stress are considered.[15]
In
terms of specific sectoral legislations, the Building and other Construction
Workers (Regulation of Employment and Conditions of Service) Act, 1996 covers
“building workers” (employed both contractually or directly) involved in construction
work not covered by the Factories Act.[16] This Act provides for general
welfare measures such as drinking water, urinals, first-aid facilities, accommodation
near the work site, and intervals under the discretion of employer.[17] Interestingly, employer’s
obligation in terms of health and safety hazards is almost exclusively
connected to the nature of hazards that may arise from the peculiar nature of construction
work and thus, does not cover heat stress induced by non-employment factors.[18] As an aberration, Rule
232 of the Act’s Central Rules obligates an employer to provide for emergency
care services for conditions including “dehydration caused due to any cause”
and sunstroke to building workers.[19] This recognition is not
hampered by a threshold for minimum workers and is more progressive than the
Factories Act that restricts its approach to injuries arising out of dangerous/
hazardous processes from manufacturing.[20]
The
Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Act, 1979, covers migrant workers employed by contractors in an
establishment in another state on an agreement.[21] The only provision that
deals with welfare measures provides for suitable accommodation, working
conditions, free medical facilities and reporting mechanism in case of
accidents.[22]
However, the Central Rules elaborate on these measures which require contractors
to provide funding for medical treatments for ailments arising due to
employment.[23]
Maintenance of first aid boxes, well-ventilated and spacious rest rooms in case
the employment is of at least three months, and washing facilities are other duties
of contractors which need to be fulfilled by the principal employer in case of
former’s failure.[24]
For
agricultural workers, there have been repeated efforts to introduce a welfare
legislation, most recently being the Agricultural Workers (Welfare and
Protection) Bill, 2022. The Bill provides for daily rest intervals and fixed
hours of work,[25]
but provisions on medical protection and availability of water, recreation,
etc. are contingent upon a Fund created through contributions by the State and
Central governments.[26] Thus, there are no
specific obligations of the employers, and effectiveness of the Fund remains
dubious due to foreseeable corruptive tendencies of middlepersons.
In
the Occupational Safety, Health and Working Conditions Code, 2020, (hereinafter,
‘the Code’) that forms a part of
overhaul in labour law framework but is yet to be notified, both the
ambit of sectors covered and types of rights differ variably. The Code streamlines
definition of “employees” with that seen in the Industrial Disputes Act, by mentioning
categories of work done for wages such as manual, unskilled, skilled, among
others, with implied or express employment terms.[27] This is complemented by
an equally inclusive definition of “employer” that expressly identifies principal
and contractual employers.[28] An equal regard needs to
be given to a liberal definition of “establishment” used for OSH provisions in
the Code. Establishments encompass workplaces (with ten or more employees)
carrying out an industry, trade, business, manufacturing or occupation, and
sector-wise, it specifically includes motor transport undertakings,
construction sites and plantations.[29]
A
general requirement to maintain hazard-free workplace is accompanied by a provision
on free, annual health examinations of employees of specified classes.[30] Particularly for
factories, mines, construction and plantation as workplaces, the Code
emphasises health and safety supervision.[31] Employees have an equal
right to seek these facilities by approaching the employer or the Safety
Committee[32],
and also keeping the Inspector-cum-Facilitator informed about the grievance.[33] While maintaining basic
safety standards of the Factories Act, the Code envisages to establish OSH
standards that will account for hazards affecting the working life of employees
to avert “material impairment” of health and include provisions for safety
audits, medical examination, standardising precautionary measures, inter
alia.[34]
While
the Code has scope to broaden the coverage of security to a spectrum of
workers, given the liberal definitions of employee and employer, the
sufficiency of remedies that are specific to heat stress and heatwave-induced
physiological conditions in different and vulnerable categories of workers
remains speculative. The Code has failed to take a precautionary approach to
the established hazard of heat stress.
In
terms of relevant judicial pronouncements, in Occupational Health and Safety
Association v. Union of India, the issue surrounded inadequacy of OSH combative
measures for workers of coal-fired thermal power plants. Here, the workers
suffered from pulmonary, lung and neurological conditions, similar to workers
affected by heat stress.[35] The petitioners suggested
adoption of measures including medical check-ups, free medical treatments,
compensation under Workmen’s Compensation Act, measures to control
heat/radiation/noise, inter alia.[36]
Observing that employees working in risky and dangerous occupations have a
right to live with dignity, the Court emphasised State’s obligation to
constantly supervise and mitigate detrimental health impacts on workers.[37] Another relevant finding
noted effects of high level of heat that can cause heat exhaustion, albeit in
an indoor and modulative setting as a thermal power plant.[38] However, the court
delegated the matter to High Courts for better implementation of guidelines.[39]
While the Courts may be proactive in protecting workers’ health by relying on constitutional rights, this is dependent on OSH types that are already statutorily recognised but lack effective implementation.[40] Thus, recognition of a recently emerged OSH as heat stress and suitable measures to combat it should ideally originate in legislative intervention.
Comparative Law analysis
A
glance at other jurisdictions in terms of legislative development in this
regard exhibits a pattern of progressive development. For instance, in
California, the California OSH Act, 1973 and California Code of Regulations
provide for general OSH protection to workers in outdoor employment including
agricultural workers that includes potable water requirement and first aid, albeit
without a specific recognition of heat stress.[41] As a reaction to occurrence
of several heat-stress related casualties in outdoor employment, the Maria
Isabel Vasquez Jimenez heat illness standard was added to the Code.[42] It covers vulnerable
employment in agriculture, construction and heavy load transportation of
agricultural/ construction materials, without a minimum threshold for workers
employed.[43]
It also recognises individual workers’ susceptibility (personal risk factors
for heat illness) to heat stress apart from environmental risk factors.[44]
The
provision requires cool, fresh potable water to be provided near the areas
where employees work with adequate reminders. Additionally, when the
temperatures exceed 26 degree Celsius, shade with cooling, ventilation and
enough space should be provided for employees’ rest and recovery periods.[45] Importantly, employees
are allowed to take “preventative cool-down rest” in the shade without coercing
them to work despite symptoms of heat stress.[46] “High heat procedures”
focus on supervising and identifying cases of heat stress through mechanisms
such as buddy system, observation and regular communication.[47] Emergency response
procedures require monitoring and calling emergency medical services.[48] For specific days of heat
wave (above 26 degree Celsius inter alia), proper acclimatisation of
workers is required, and a general training of employees about set procedures
and precautions to be taken is also mandated.[49]’
In
terms of a nationwide legislation in the US, the Asuncion Valdivia Heat Illness
and Fatality Prevention Bill, 2019 was introduced that sought to mandate OSHA[50] to bring requisite heat
illness related provisions in its regulations.[51] The OSHA regulations have
followed a similar trajectory as India where employers have a general
obligation to maintain a “recognised” hazard free working environment. This non-specific
standard has been criticised on the ground that it creates liability on the
part of employer as a reactionary measure, when the heat illness has already
caused death or severe physiological changes to the employees.[52]
The
Arab States such as Bahrain, Qatar and Oman have the concept of “midday work
ban” as an adaptive measure where workers in outdoor employment are not allowed
to work during peak hours of heat in the summer season (June/July-August).[53] While the EU does not
have a binding regulation on OSH, it aids the member countries in developing
standards. Heat-shield is one of EU’s research ventures that has laid
out certain standards including assessment of risk based on individual workers’
attributes, provision of extra breaks, reorganisation of work day (where peak
heat hours are avoided) and creation of “cooling oases” (similar to the shade
concept in the California regulation) for preventative breaks.[54] Similar standard-setting
rather than binding obligations have been created by the UK’s Health and Safety
Executive.[55]
This has led to calls for legally recognising workable temperature windows rather
than subsuming it within the employers’ self-regulatory domain under general
obligations that exist under the Health and Safety at Work etc. Act, 1974.[56]
The (Maybe) Way Forward
Danger
to workers’ health amidst rising temperatures behoves lawmakers to formulate an
adaptation strategy to protect their life and livelihood. The strategy should
account for workers in vulnerable employment irrespective of their employment relation
due to the objective of protecting workers from heat stress that does not
differentiate between permanent and contractual workers. Similar to the EU’s
Heatshield standards, such a strategy should also account for identifying
vulnerable worker groups such as women, old-aged and persons with disabilities
for risk assessment, and allocate relatively higher priority to them. The
yardstick of minimum threshold of workers to make an employer liable to provide
for adaptative measures should be substituted by a co-responsibility of the
appropriate government and individual employers to amalgamate smaller vulnerable
workplaces and provide for common facilities. This will reduce the investment burden
on the employers while not compromising on employees’ health amidst raging heatwaves.
The
Code is a suitable legislation to incorporate this strategy due to its
all-encompassing nature and unfragmented approach. New provisions specifically
focussing on the intersection of informal and outdoor vulnerable employment
such as agriculture, construction and transportation on a priority basis must
be introduced. Since worker welfare is a Concurrent List subject, states
particularly affected by intense heatwaves in the Indo-Gangetic plains should
introduce outlined legislative interventions if the Code remains stalled or
comes into force with inadequate measures for heat stress.[57] However, if the Code does
not come into force soon and states fail to introduce suitable legislations, a
separate Central legislation on heat stress as an OSH is required. This should
ideally be similar to the Maria Isabel Vasquez Jimenez heat illness standard,
with a broad coverage due to disproportionately fatal consequences for labour
force in vulnerable employment, lest all workplaces become deadly “sweatshops”.
Epilogue
Legislative
action in the realm of heat-stress related worker safeguards should seek to
protect the most endangered worker group in India- informal sector workers who support
almost half of the country’s GDP yet are betrayed when their safety is
concerned.[58]
An inclusive legislation that takes an unfragmented approach towards all
employees in vulnerable employment, and provides for customised preventative
and protective mechanisms should be on agenda in the national and state
legislatures before the summer of 2026 breaks yet another record of being the
hottest summer ever recorded. Yardsticks established by the California Labour
Code, Arabian embargo on work standard and EU’s heatshield guide are detailed,
specific and targeted that must be referred to while developing an Indian
response to heat stress as an OSH. However, a self-regulatory approach should
be averted given that India has observed instances of non-compliance even in
statutorily recognised health hazards.
[1] Joern Birkmann et al., Poverty,
Livelihoods and Sustainable Development, in Climate
Change 2022: Impacts, Adaptation and Vulnerability: Contribution of Working Group II to the Sixth
Assessment Report of the Intergovernmental Panel on Climate Change 1207
(2022).
[2] Andreas
Flouris et al., Heat at Work: Implications for Safety and Health. A Global
Review of the Science, Policy and Practice ILO 9-10 (2024).
[3] Id. at 13-16.
[4] Id. at 7.
[5] Anirudh Krishnan, Heat Stress,
Labour Well-being, and Productivity amidst Heat Waves, 5-7 (2022), https://sprf.in/wp-content/uploads/2022/08/SPRF-2022_DP_Heat-Waves.pdf.
[6] Section 2(m), The Factories Act,
1948.
[7] Ardeshir H. Bhiwandiwala v. State
of Bombay, 1961 SCC OnLine SC 53, ¶ 6.
[8] Section 7A, The Factories Act,
1948.
[9] Section 11A, The Factories Act,
1948.
[10] Section 89 and 90, The Factories
Act, 1948.
[11] Section 16, 18, 44, 47 & 55,
The Factories Act, 1948.
[12] Section 114, The Factories Act,
1948.
[13] Section 18(3), The Factories Act,
1948.
[14] Section 47, The Factories Act,
1948.
[15] Section 55, The Factories Act,
1948.
[16] Section 2(d), (e), (g) & (i),
the Building and other Construction Workers (Regulation of Employment and
Conditions of Service) Act,1996.
[17] Sections 28, 32, 33, 34 & 36,
Building and other Construction Workers (Regulation of Employment and
Conditions of Service) Act, 1996.
[18] Section 40 r/w Part III of the Building
and other Construction Workers’ (Regulation of Employment and Conditions of
Service) Central Rules, 1998.
While Rule 165 mentions “working temperature”, it is
the employer’s obligation to control temperature in tunnelling and excavation
processes, thereby defined by its narrow understanding of modulative
temperature and process-specific heat stress.
[19] Rule 232(a)(vi) & (xii),
Building and other Construction Workers’ (Regulation of Employment and
Conditions of Service) Central Rules, 1998.
[20] Section 41C, The Factories Act,
1948.
[21] Section 2(e), Inter-State Migrant
Workmen (Regulation of Employment and Conditions of Service) Act, 1979.
As per section 1(4), establishments as defined under
section 2(d) should have at least 5 inter-state migrants for the Act’s
applicability. Notably, the definition of establishment is wide to cover
vulnerable employment.
[22] Section 16, Inter-State Migrant
Workmen (Regulation of Employment and Conditions of Service) Act, 1979.
[23] Rule 37, Inter-State Migrant
Workmen (Regulation of Employment and Conditions of Service) Central Rules,
1979.
[24] Rule 37, 40, 43 & 46,
Inter-State Migrant Workmen (Regulation of Employment and Conditions of
Service) Central Rules, 1979.
[25] Sections 11 & 12, Agricultural
Workers (Welfare and Protection) Bill, 2022.
[26] Section 7 & 10, Agricultural
Workers (Welfare and Protection) Bill, 2022.
[27] Section 2(t), Occupational Safety,
Health and Working Conditions Code, 2020.
[28] Section 2(u), Occupational Safety,
Health and Working Conditions Code, 2020
[29] Section 2(v), Occupational Safety,
Health and Working Conditions Code, 2020.
Notably, Plantations are different from normal
agriculture as the former covers specific cash crop plantations such as tea,
coffee, inter alia. (Section 2(f), The Plantations Labour Act, 1951).
[30] Section 6(1), Occupational Safety,
Health and Working Conditions Code, 2020.
[31] Section 6(2), Occupational Safety,
Health and Working Conditions Code, 2020.
[32] Section 22, Occupational Safety,
Health and Working Conditions Code, 2020.
[33] Section 14, Occupational Safety,
Health and Working Conditions Code, 2020.
[34] Section 18, Occupational Safety,
Health and Working Conditions Code, 2020.
[35] Occupational Health and Safety
Association v. Union of India, (2014) 3 SCC 547, ¶ 3.
[36] Id. at ¶ 3.
[37] Id. at ¶ 10.
[38] Id. at ¶ 14.
[39] Id. at ¶ 18.
[40] For instance, in Peoples Rights
and Social Research Centre (PRASAR) v. Union of India, [2024 SCC OnLine SC 1895] the
Supreme Court was occupied with a contention about vulnerability of workers in
stone quarries and construction sites to “silicosis”, a disease that is
ironically a scheduled disease under the Act and the Code to set in motion
enquiry and notice procedures to the appropriate authorities. Despite its
statutory recognition, the petitioners contended that workers continued to be
affected by it without sufficient medical care, compensation and
rehabilitation. The Court directed the National Green Tribunal to mitigate the
environmental aspect of these polluting enterprises and the NHRC to coordinate
disbursal of adequate compensation to the affected workers.
[41] Heather Ward, Extreme Weather
Events and Heat-Related Illness in Outdoor Employment, 17 SAN JOAQUIN
AGRIC. L. REV. 326 (2007-2008); Section 3457, Title 8, California Code of
Regulations.
[42] Section 3395, Title 8, California
Code of Regulations.
[43] Section 3395(a)(2), Title 8,
California Code of Regulations.
[44] Section 3395((b), Title 8,
California Code of Regulations.
[45] Section 3395(d), Title 8,
California Code of Regulations.
[46] Section 3395(d), Title 8,
California Code of Regulations.
[47] Section 3395(e), Title 8,
California Code of Regulations.
[48] Section 3395(f), Title 8,
California Code of Regulations.
[49] Section 3395(g) & (h), Title
8, California Code of Regulations.
[50] Occupational Safety and Health
Administration.
[51] Stephanie Milner, Hot Topic
Getting Hotter: Employer Heat Injury Liability Mitigation in the Age of Climate
Change 36(1) ABA Journal of Labour
& Employment Law 181 (2022).
[52] Id. at 185-186.
[53] Flouris, supra note 2, at
34.
[54] Heat Shield, A Heat-Defense
Plan for Keeping Workers Safe and Productive in the Heat: A guide for employers
and enterprises, (May 25, 2020) https://www.heat-shield.eu/_files/ugd/441f54_0317e9a577054df9b4d17c9acb352d8b.pdf.
[55] HSE, Heat stress in the
workplace: A brief guide (2013) https://www.hse.gov.uk/pubns/indg451.pdf.
[56] BBC, ‘Too hot to work’ law
urged (July 18, 2022) https://www.bbc.com/news/business-62197921.
[57] Items 23 and 24, List III (Concurrent
List), Constitution of India, 1950.
[58] Preksha Sharma and Janet Orlene, Heat
stress: how soaring temperatures are taking their toll on migrant workers in
India’s garden city, The Guardian
(May 22, 2024) https://www.theguardian.com/global-development/article/2024/may/22/india-bengaluru-heatwaves-climate-inequalities-cities-planning-informal-workers.
