Category | Briefing Papers
Colin is a shareholder in the firm’s Construction Law Department. He can be reached at 612.359.7665 or Cbruns@fwhtlaw.com
Due to record-breaking temperatures across the country, OSHA recently issued a hazard alert to notify employers of their obligation to protect workers against heat illness. OSHA also announced that it will be increasing enforcements efforts in high-risk industries such as construction. This briefing paper addresses what this means for contractors and provides guidance on what contractors need to know to comply with applicable standards and guidelines in order to avoid OSHA citations and keep their employees safe from excessive heat.
OSHA’s Hazard Alert
Dozens of workers die, and thousands more are hospitalized, each year from excessive heat exposure. Employees working in high-risk industries, such as construction, are disproportionately impacted by extreme heat. In fact, the construction industry has the highest number of OSHA reported deaths due to heat in the last five years. In addition to injuries and death, heat-related illnesses may also contribute to decreased performance and lost productivity for employers and their employees.
In recent years, OSHA has increased its efforts to protect employees from heat, including developing an enforcement initiative on heat-related hazards and launching a heat illness prevention campaign to educate employers and workers on the damage of working in the heat. As part of this initiative, in April 2022, OSHA announced the implementation of a National Emphasis Program (“NEP”) to protect employees from heat-related hazards and resulting injuries and illnesses in outdoor and indoor workplaces.
On July 27, 2023, as part of its NEP, OSHA issued a heat hazard alert, which notifies employers of their duty to protect their workers from heat, outlines steps employers should take to protect their employees, and provides employers with various resources to help with compliance. Additionally, OSHA announced that it will be increasing its enforcement efforts in certain geographic locations and in high-risk industries, such as the construction industry. This means OSHA will be conducting more inspections of high-risk worksites (including construction jobsites), to ensure workers are protected. Under the NEP, OSHA is authorized to conduct pre-planned inspections of high-risk worksites on “heat priority days,” which occurs when the heat index for the day is expected to be 80 degrees Fahrenheit or higher. OSHA can also conduct inspections when an OSHA safety official observes a hazardous heat condition while conducting an investigation for other purposes or when an employee notifies a safety official of a heat-related hazard.
In light of OSHA’s increased enforcement efforts, employers in high-risk regions and industries need to be familiar with applicable standards and guidelines to ensure they are in compliance and to protect their employees from the heat.
There is currently no federal standard for workplace heat safety in the U.S. OSHA has stated that it is working towards publishing a proposed standard for heat illness prevention for indoor and outdoor workers, but that process will take time. In the meantime, OSHA’s “general duty” clause applies to heat-related hazards. Under the general duty clause, employers are required to provide their employees with a place of employment that “is free from recognized hazards that are causing or likely to cause death or serious harm to employees.” OSHA can impose penalties for employers that violate the general duty clause by failing to protect their employees from heat-related hazards.
Additionally, contractors must be aware of other general OSHA standards that may impact heat safety. For example, OSHA has issued standards for PPE in the construction industry. While PPE is necessary for protecting employees from certain safety hazards, wearing heavy clothing or equipment during excessive temperatures may create heat hazards for employees. Employers must keep heat safety in mind while working to comply with other standards that are not specific to heat-related hazards.
Finally, a handful of states have implemented their own standards for heat safety. For example, Minnesota has a heat standard targeted to protect workers exposed to excessive heat in indoor work environments. Other states, including California, Maryland, Nevada, Oregon, and Washington, have heat standards for outdoor workers. While states like Minnesota may not seem to be at high risk for heat-related hazards, MNOSHA emphasizes that heat stress can be as much of a problem in Minnesota as other high temperature regions in the country because people often do not have the opportunity to acclimatize, and stay acclimatized, in climates like Minnesota, where the daily temperatures can vary significantly from one day to the next.
Thus, contractors in all states must be familiar with federal OSHA standards. And, especially for contractors performing work on projects in different states, it is important to be aware of any state-specific standards that may apply.
Recommendations and Guidelines
As discussed above, heat hazards can present unique challenges for employers in the construction industry. Without a uniform standard on heat safety, it is important for employers to know where to look for guidance to help navigate through these challenges.
OSHA publishes various guidelines and fact sheets related to heat-related illnesses to help employers protect their employees from heat hazards. As part of its guidelines, OSHA recommends that employers with employees exposed to high temperatures develop a heat illness prevention program to protect their employees from developing heat-related illnesses. Below are a few steps OSHA suggests to protect their workers from heat:
• Provide workers with adequate cool water, rest breaks, and shade or a cool rest area.
• Give new or returning employees the chance to acclimatize to the heat. OSHA recommends that, for new or returning employees, employers gradually increase their workloads, ensure more frequent breaks, and monitor them for signs of heat illness.
• Train employees on heat illness prevention, signs of heat illness, and how to act if they or another employee appears to be suffering from a heat related illness.
These are only a few recommendations for employers to consider in developing a plan for heat safety. OSHA’s guidelines and fact sheets, many of which are accessible on OSHA’s website, provide further guidance on steps employers should take to prevent heat-related illnesses.
Additionally, the National Institute for Occupational Safety and Health (“NIOSH”) has published criteria for a recommended standard for occupational heat stress, which outlines recommendations for employers on how to prevent heat-related illnesses.
Finally, some states provide access to additional resources to assist employers and employees handle the heat. For example, Minnesota OSHA publishes a guide on heat stress and posts links to resources on their website for guidance.
With OSHA increasing it enforcement efforts on heat safety, employers in high-risk industries, such as construction, should take steps to protect their employees from excessive heat. This briefing paper is intended to provide some guidance and resources to help contactors and other employers in high-risk industries comply with applicable rules and guidelines. You should contact your attorney if you any questions on complying with specific rules or developing a plan to protect your employees from the heat.
 29 U.S.C. § 654(a)(1).
 Acclimatization is the process by which a person gradually increases their exposure to hot environmental conditions, allowing the body to adapt and tolerate higher levels of heat stress.
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