United States of America

Labor Law and Climate Change

Introduction

The intensifying impacts of climate change will have a significant impact on domestic and international labor markets.

The intersection of climate change and labor markets in the United States will likely impact a number of legal issues. Extreme temperatures have the potential to pose risks to workers’ health and safety and employers may face personal injury claims from staff who have suffered from a negligent failure to protect them from those risks. Further, policies enacted to address climate change will have major ramifications on employment – leading to increased opportunities in some sectors and the need to retrain employees in others.

More broadly, many businesses will respond to the transition to net-zero by changing internal policies to respond to the challenges the climate crisis poses for their employees and the workplace. Employers and employment lawyers may continue to drive climate action through offering incentives for employees to reduce their climate impact and encouraging climate action in employment contracts and pensions. Labor unions will also play an important role in driving not only the net zero transition but also a just transition for workers and in ensuring that workers are most negatively impacted by the climate crisis.

How climate change is impacting employment law

Social and industrial transition

Before outlining specific legal issues related to employment and climate change, it is worth considering the impacts of climate change on work. In that regard, research from the Harris School of Public Policy predicts that without global GHG mitigation, the US economy “would stand to lose between about 1 percent to 4 percent of GDP annually by the end of the century through effects to mortality, labor and the energy sector alone under a high emissions scenario.”[1]

The objectives of the Inflation Reduction Act of 2022 (IRA) seek to address mitigate the climate impacts of the US economy by providing more than $369 billion in investments to accelerate the transition to net zero in the US. Since the introduction of the IRA in 2022, investments to accelerate clean energy deployment have created more than 170,000 jobs, and the IRA is projected to create more than 1.5 million additional jobs over the next decade.[2] These projections highlight that as the net-zero framework established by the IRA continues to be rolled out, it is likely that it will not only have a significant impact on the labor force, but it also has the potential to re-define systems of work in the future.

Systems of work and a “just transition”

There is a strong link between climate change and equality through issues such as human rights and the concept of a ‘just transition’. In anticipation of the fact that reaching net zero will mean phasing out fossil fuel industries, many states have implemented “just transition” initiatives to assist communities and workers whose economies have traditionally relied on fossil fuel industries. In 2019, both Colorado and New Mexico passed legislation which established frameworks to provide workforces affected by the net-zero energy transition with economic support.[3]

NRDC, Sierra Club, and Respiratory Health Association v. Illinois Power Resources Generating[4] is an example of how litigation can also play a role in ensuring just transition initiatives are furthered in the net-zero transition. In that case, local community groups in Peoria, Illinois, took legal action against the owners of a local power plant to guarantee a just transition for its workers and $8.6 million in funding for low-income and communities of color.[5]

Additionally, aside from workplaces which are directly impacted by the net zero transition, all workplaces are changing due to growing awareness of climate change, which may have legal implications.[6] These changes impact talent acquisition – many workers, especially those in younger demographics, are considering the climate credentials and commitments of prospective employers. Likewise, employers in various sectors are also looking for employees with climate-related skills or knowledge. These changes in attitudes may have legal implications where an employee wishes to highlight behaviour from their employer that has negatively impacted the environment or seeks to negotiate climate-related benefits in his or her employment agreement, both situations are examined below. Employers may also change internal policy to ensure that their employees receive adequate training and education on climate change, or even tie remuneration to ESG metrics.[7]

Physical climate impacts 

The physical risks caused by climate-related extreme weather events and rising temperatures will likely impact many workers across the US. According to the U.S Department of Labor, between 2011 and 2021, there have been more than 400 work-related deaths due to environmental heat exposure.[8] Further, the Bureau of Labor Statistics has recorded approximately 34,000 work-related heat injuries and illnesses that required time away from the job between 2011 and 2020.

In July 2023 –the hottest month ever recorded[9] – the U.S Department of Labor to issue a Heat Hazard Alert which empowered OSHA to increase inspections in high-risk industries like construction and agriculture, to ensure that employers were complying with their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces.[10]

However, these Hazard Alerts provide minimal stand-alone protection to workers exposed to extreme heat. This is especially the case because currently there is no federal law which protects workers from extreme heat. While the Biden Administration has announced the launch of a rule-making effort at the Occupational Health and Safety Administration (OSHA) to develop heat exposure standards to protect indoor and outdoor workers,[11] this effort has been met with significant opposition from business groups and lobbyists who argue that new regulations could impose onerous burdens on industry and lead to economic losses.[12]

As extreme temperatures become more commonplace and more frequent across of the US and, in the absence of legislation which addresses the risks associated with these rising temperatures, to the question of when heat poses an unacceptable risk to workers may be answered through litigation and administrative agency action. 

In addition to extreme heat, flooding and rising sea levels may also put some workplaces at risk.[13] This may result in the mass relocation of businesses, requirements for businesses to implement flood mitigation plans and other adaptations to a changes in the local ecosystem.[14]  Employees will be impacted as well, resulting in new legal questions to resolve as employees seek accommodations such as cooling breaks, climate controlled work spaces, and paid emergency leave for climate-related weather events. 

How employment law can help to drive the net-zero transition

General changes to the workplace

Remote working became the norm for many office spaces during the COVID-19 pandemic, and there may be sustainability-related justifications for encouraging remote or hybrid approaches to work. For example, remote working can reduce energy used in daily commutes, and energy needed to light or heat offices. However, the picture may not be so simple, and traditional working arrangements can be less carbon-intensive depending on factors such as the time of the year and the extent to which electric vehicles are commonplace. Another source of emissions brought to the fore by COVID-19 is business travel, which represent a significant source of a business’ emissions due to the emissions-intensity of air travel coupled with the frequency of business flights compared to travelling for leisure and the carbon footprint of first and business class tickets when compared to economy class tickets. Employers may introduce new policies as financial incentives and other benefit schemes in order to encourage the transition to a climate-friendly workplace.[15]  

For workers who do not have the option to work remotely, the possibility of being exposed to extremes in temperatures, poor air quality or a lack of adequate air conditioning may pose such dangerous threats that alternative business models become more common. This could include the implementation of schedule changes to work only during the cooler parts of the day.[16]

Employment contracts

The contract law section of this resource explains how contracts can drive climate action, and this will also likely be the case in the context of the workplace. As businesses continue to embed climate change in their operations, climate-related clauses may be embedded into standard employment contracts such as climate-friendly benefits (e.g. subsidies for low-carbon transportation) or a promise to offset the GHG emissions from the employee’s business travel. Businesses may also be able to demonstrate their commitment to climate change to prospective employees through such initiatives.

Trade Unions

Collective bargaining is a core tenet of labor rights in the U.S. and the key mechanism for unions to obtain benefits for their members.[17] In the context of climate change, “green collective bargaining”, which links environmental and workplace issues may become an important measure to drive climate-focused and just transition measures in the workplace. Trade unions therefore have a key role to play in managing the broader industry transitions outlined above.

Climate Jobs National Resource Center (CJNRC) has published multiple reports which seek to provide strategic and technical support to unions organizing for worker-centred climate action. In particular, the CJNRC, develops state-specific science-based climate action plans which can be utilized by unions in establishing state coalitions and building strategic campaigns to implement those plans.[18] 

The NRDC has also produced relevant resources in this area, including a report “United: Union Jobs Improve the Clean Energy Economy”, which highlights how high quality union jobs in the clean economy has produced better outcomes for workers and the environment. The report also provides a list of recommendations which outline how Congress can foster high-quality union jobs in the clean energy economy.[19]

Some states, such as Connecticut, have already recognized the importance of ensuring that the net-zero transition is powered by strong union jobs. In 2021, Gov. Ned Lamont passed legislation which requires developers of renewable energy projects to pay a prevailing wage.[20]  

Given that the net zero transition will necessarily involve a reduction in the number of people working in certain areas, there will likely be opposition by unions in affected industries, particularly those relating to fossil fuels. Nonetheless, union groups have generally recognised the importance of driving climate change and may play an important role in working with businesses, employees, and the government to ensure that workplaces are sustainable and shielded from climate impacts.

International Labor Organization (ILO)

The ILO, of which the US is a member, sets binding conventions and nonbinding guidelines that may be relevant to climate change. In a 2009 paper, the ILO noted multiple intersections between their rules and climate change – for example through Convention No. 148 which requires protection against air pollution in workplaces, and through rules on hazardous chemicals in Chemicals Convention No. 170.[21] It has also affirmed its role in ensuring a just energy transition for workers.

The ILO has set fairly comprehensive ‘guidelines for a just transition towards environmentally sustainable economies and societies for all’. These guidelines include proposals are not confined to labor law but instead suggest broader economic and social policies that could help ensure a just transition across society. Though these guidelines are not binding in the US, they may inform future policymaking in this area. Annex I of the guidelines lists a range of ILO conventions, recommendations, and resolutions that are relevant to climate change.

In 2020, the ILO released a paper outlining the role it could play in addressing climate change.[22] The ILO emphasised its role in producing research and that advances knowledge about climate change’s impact on employment, and in engaging with global climate negotiations under the United Nations Framework Convention on Climate Change. It also emphasised its ability to help build capacity in constituent states to ensure a just transition, which is more relevant to developing countries than to economies like the US, and to support relevant initiatives in its member states. Finally, the ILO will continue to implement the aforementioned just transition guidelines in all its member states. The ILO may therefore help to inform relevant labor law and policy in the US and could also be a platform from which the US could help ensure that other countries are considering climate change’s impact on the workplace.

[1] Epic (Energy Policy Institute at the University of Chicago), “Climate Change and the U.S. Economic Future,” University of Chicago, https://epic.uchicago.edu/area-of-focus/climate-change-and-the-us-economic-future/

[2] The White House, “Fact Sheet: One Year In, President Biden’s Inflation Reduction Act Is Driving Historic Climate Action and Investing in America to Create Good-Paying Jobs and Reduce Costs,” August 16, 2023, https://www.whitehouse.gov/briefing-room/statements-releases/2023/08/16/fact-sheet-one-year-in-president-bidens-inflation-reduction-act-is-driving-historic-climate-action-and-investing-in-america-to-create-good-paying-jobs-and-reduce-costs/. Also see: Labor Energy Partnership, “LEP Analysis of the Inflation Reduction Act: Key Findings on Jobs, Inflation, and GDP,” https://laborenergy.org/fact-sheets/lep-analysis-of-the-inflation-reduction-act-key-findings-on-jobs-inflation-and-gdp/

[3] “Governor signs landmark energy legislation, establishing New Mexico as a national leader in renewable transition efforts,” Office of the Governor Michelle Lujan Grisham, March 22, 2019, https://www.governor.state.nm.us/2019/03/22/governor-signs-landmark-energylegislation-establishing-new-mexico-as-a-national-leader-in-renewable-transition-efforts/.
“Just Transition Action Plan,” Colorado Department of Labor and Employment, December 31, 2020, https://cdle.colorado.gov/pressreleases/press-release-just-transition-action-plan.

[4] Natural Resources Defense Council, et al. v. Illinois Power Resources Generating, et al.

[5] 9 Brian Palmer, “This Is What a Just Transition Looks Like,” Natural Resources Defense Council, March 2, 2020, https://www.nrdc.org/stories/what-just-transition-looks.

[6] James Davies, ‘Climate Emergency, Work and Law’ (Lewis Silkin, 2021). <https://www.lewissilkin.com/en/insights/climate-emergency-work-and-employment-law>.

[7] Christel Cacioppo at al., ‘Climate Change and the Workplace: What do Global Employers Need to Know?’ (Freshfields, November 2021)  <https://www.freshfields.com/en-gb/our-thinking/knowledge/briefing/2021/11/climate-change-and-the-workplace-what-do-global-employers-need-to-know/>.

[8] Bureau of Labor Statistics, U.S. Department of Labor, The Economics Daily, 36 work-related deaths due to environmental heat exposure in 2021 at https://www.bls.gov/opub/ted/2023/36-work-related-deaths-due-to-environmental-heat-exposure-in-2021.htm

[9] United Nations, “July 2023 Hottest Month Ever Recorded,” https://www.un.org/en/climatechange/july-2023-hottest-month-ever-recorded#:~:text=The%20UN%20Chief%20spoke%20on,highest%2Dever%20ocean%20surface%20temperatures

[10] Occupational Safety and Health Administration (OSHA), “OSHA Releases Heat Safety Tool for Outdoor Workers,” July 27, 2023, https://www.osha.gov/news/newsreleases/national/07272023

[11] The White House, “Fact Sheet: Biden Administration Mobilizes to Protect Workers and Communities from Extreme Heat,” September 20, 2021, https://www.whitehouse.gov/briefing-room/statements-releases/2021/09/20/fact-sheet-biden-administration-mobilizes-to-protect-workers-and-communities-from-extreme-heat/

[12] The Guardian, “Heat Protections for Workers Weak as Big Business Lobbies Against Change,” July 31, 2023, https://www.theguardian.com/environment/2023/jul/31/heat-protections-workers-big-business-lobbies

[13] Susan Ladika, Climate Change Will Alter How Business Is Done,” https://www.shrm.org/topics-tools/news/risk-management/climate-change-will-alter-how-business-done  

[14] Ibid.

[15] Christel Cacioppo at al., ‘Climate Change and the Workplace: What do Global Employers Need to Know?’ (Freshfields, November 2021)  <https://www.freshfields.com/en-gb/our-thinking/knowledge/briefing/2021/11/climate-change-and-the-workplace-what-do-global-employers-need-to-know/>.

[16] See, EPA: Climate Change and the Health of Workers, https://www.epa.gov/climateimpacts/climate-change-and-health-workers. Also see, Marguerite Holloway, “As Phoenix Heats Up, the Night Comes Alive”, https://www.nytimes.com/interactive/2019/climate/phoenix-heat.html.  

[17] See the National Labor Relations Act of 1935.

[18] Climate Jobs, National Resource Center: https://www.cjnrc.org/about-us/

[19] NRDC, Report: United for Union Jobs in Clean Energy,” (2021) https://www.nrdc.org/sites/default/files/united-union-jobs-clean-energy-report.pdf , pp 4, 18.

[20] Hartford Courant, “Gov. Ned Lamont rejects veto plea from solar industry, signs labor-backed legislation for higher wages and benefits” (2021) https://www.courant.com/2021/06/14/gov-ned-lamont-rejects-veto-plea-from-solar-industry-signs-labor-backed-legislation-for-higher-wages-and-benefits/

[21] Lene Olsen, ‘The Employment Effects of Climate Change and Climate Change Responses: a Role for International Labour Standards?’ (International Labour Organization, 2009). <https://www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—actrav/documents/publication/wcms_122181.pdf>.

[22] International Labour Office ‘The Role of the ILO in Addressing Climate Change and a Just Transition for All’ (International Labour Organization, 2021). < https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—relconf/documents/meetingdocument/wcms_736774.pdf>.