OSHA’s Proposed Heat Rule Draws Feedback From Contractors, Unions

When an electrical worker in Austin, Texas, returned to his hot jobsite after taking some time off, he became pale, confused and dizzy over the course of the day. He rested in the shade, but still felt unwell and left early. While driving home, he passed out and flipped his truck after suffering from heat stroke.The worker was “not properly acclimated to working in extreme heat,” said Tarn Goelling, international representative at the International Brotherhood of Electrical Workers. Now, the U.S. Dept. of Labor’s Occupational Safety and Health Administration is in the rulemaking process for possible workplace heat injury and illness prevention standards aimed at preventing similar situations. An OSHA panel is holding a multi-day virtual public hearing on its proposed rule through July 2. “Many of the injuries and illnesses resulting from exposures to these heat hazards on the job are easily preventable with an appropriate heat illness prevention plan,” Goelling said while offering comments on the proposed rule. Construction is one of the leading industries for workplace heat-related illnesses and injuries, Bureau of Labor Statistics data show. Between 2021 and 2022, the industry saw 620 workplace injuries that resulted from exposure to environmental heat and required at least one day away from work, and 29 deaths. Even then, OSHA officials have said they believe cases are underreported.“Heat-related illnesses are significantly underreported for multiple reasons, including a lack of information, communication and fear of retaliation,” said Ryan Papariello, safety and health specialist at the Laborers’ Health & Safety Fund of North America. OSHA published its proposed rule applying to construction and other industries last summer. The proposal calls for a programmatic standard requiring employers to create a heat injury and illness prevention plan. The rule would set requirements to identify heat hazards and implement control measures—both engineered and work practices—with two different trigger levels. It would also establish how employers should implement a heat emergency response plan, train employees and supervisors, and retain records. To be meaningful and effective, a heat standard must go beyond basic provisions like water, rest and share, Papariello said. A standard should include a written heat illness prevention plan, an acclimatization plan, high heat practices, employee and supervisor training, clear temperature triggers, a buddy system and anti-retaliation language, he added.“We must shift from a reactive to a proactive strategy that centers on worker health and safety,” Papariello said.One Size Fits All?Contractor groups have criticized the proposed rule for using what they call “a one-size-fits-all approach” to heat safety. Rather than prescriptive measures, groups including the Associated General Contractors of America and the Associated Builders and Contractors have called on OSHA to implement performance-based requirements in the standard because of the many variables within the construction industry. “OSHA should recognize, and I believe has recognized in the past, that the construction industry faces unique challenges compared to those in other industries,” said Kevin Cannon, director of safety and health services at AGC. Because of those unique challenges, Cannon said construction should be exempt from the temperature recordkeeping requirements included in the proposed rule. “Our belief is that this data has limited utility in predicting environmental conditions on future projects and would not necessarily be considered representative sampling or objective data,” he said. Contractors have also sought more flexibility based on typical regional weather. With an initial trigger at 80°F under the proposed rule, employers would need to provide water, a break area and acclimatization for new or returning workers. At 90°F, employers would also have to provide 15-minute rest breaks every two hours and implement a supervisor or buddy system to observe for heat-related health symptoms. Provisions like those setting rules for rest breaks “are impractical and would be exceedingly difficult to manage on construction sites due to time and schedule-based activity interdependencies,” said Joe Xavier, senior director of health and safety at ABC. As example, he talked about the complications the rule would add for crews placing concrete. The mandatory breaks could cause a strain for contractors managing the timing of trucks, the concrete pour rate and other factors. And in vertical construction, crews working on swing stage scaffolds on tall buildings could spend more time getting to a preset break location than taking the break itself, Xavier added. “ABC recommends that OSHA allows supervisors and employees to work together and coordinate safe approaches for rest breaks focusing on individual employees’ needs, the nature of the work and the specific workplace conditions,” he said. In addition to seeking more flexibility in the rule, some contractors have also suggested OSHA issue a separate rule for construction heat safety because of the industry’s unique factors. Feasibility and FlexibilitySeven states already have some workplace heat standards in place, and lawmakers in more have proposed adding their own rules. Most of the state standards use prescriptive approaches similar to the proposed federal rule. They “have shown that feasibility and flexibility are not a barrier,” said Papariello, with the Laborers’ Health & Safety Fund of North America. “In fact, as the more recently developed heat standards illustrate, these can go hand in hand,” he added.Goelling, with IBEW, highlighted Santa Fe Springs, Calif.-based CSI Electrical Contractors Inc. for its heat safety practices. The contractor, which works on solar projects including in the high desert where temperatures can exceed 115°F, provides an air-conditioned cooling trailer at the jobsite, as well as towable shade structures that each crew can bring out in the field. CSI also trains all its employees to recognize the symptoms of heat stress, heat illness and heat stroke, and provides them with cooling PPE such as evaporative towels and hard hat liners, as well as cooled water bottles and electrolyte beverages. In case of a heat-related emergency, the contractor also keeps ice vests in freezers in its site offices. “Controlling for hazards results in increased productivity and allows workers to best complete their work and then return home safely at the end of the day,” Goelling said. OSHA officials are taking comments from the public hearings to help it finalize the proposed rule. It remains unclear which provisions from the proposed rule will remain. President Donald Trump issued an executive order in January directing any agency promulgating a new rule or regulation to identify at least 10 others to repeal. But Labor Secretary Lori Chavez-DeRemer has the support of labor groups such as North America’s Building Trades Unions. NABTU President Sean McGarvey said ahead of her confirmation that Chavez-DeRemer “has consistently championed policies that strengthen worker protections, expand access to high-quality, middle-class careers, and support registered apprenticeship programs that build a strong, skilled workforce pipeline in the construction sector.”The administration could simply rescind the proposed rule or take no action, but Jason Mills, partner specializing in labor, safety and related areas at law firm Sidley Austin LLP, said during a webinar on the proposed rule June 18 that he expects officials will continue finalizing a rule. “If they do nothing, there won’t be a rule, until perhaps another administration,” he said. “So this would be their chance to come up with a rule that is palatable to the business community, and potentially to the employee side.”