The federal government remains intent on turning up the heat on employers to keep workers safe in the heat — whether they’ll prevail remains an open question.
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) branch has issued a proposed rule that amounts to a first-ever enforceable national standard for protecting workers from extreme heat. Under the rule, employers would have to craft detailed plans conforming to OSHA guidelines for shielding workers from extreme heat exposure and its consequences. They would incorporate training, procedures, risk assessment, and targeted interventions like water and rest breaks, cooling areas and acclimation strategies designed to prevent heat-related injury, illness, and death.
OSHA has been ramping up its focus on worker heat safety for several years, resulting in a strong and sustained educational outreach to industry and workers (see Figure). Its signature effort was the 2022 launch of a formal “national emphasis program” that entails increased inspections of workplaces with the greatest risk exposure and those suspected of skirting basic worker protections. To date, OSHA has performed more than 5,000 inspections aimed at identifying risks and mitigating them with adequate protections growing out of enforcement actions under the OSHA general duty clause and other regulations, employer outreach, and compliance assistance.
The new proposed rule would give OSHA a blunt tool to better ensure employers take the issue of extreme heat conditions seriously. It’s needed, the agency says, because heat-related injuries are becoming more common as exposures increase with an evolving workforce, productivity pressures and higher frequency of extreme heat conditions.
But industry pushback, including that from the construction sector — a top target — has mounted as OSHA has prioritized closer attention to worker heat protection. Years in the making, OSHA’s new proposed rule, a potential watershed event in the agency’s push, is drawing fire from employers worried about red tape, oversight, compliance costs and unintended worker safety consequences. It’s likely to intensify as a public comment period leading up to final rule publication begins.
That input could alter the shape of the final rule, though the proposed rule does incorporate feedback OSHA has solicited from employers. The rule also is at risk from potentially strong political and judicial headwinds. Lawsuits from states and business groups challenging the rule area are possible and the prospect of a likely regulation-averse second Trump administration could doom it. Also, it could be caught up in the U.S. Supreme Court’s recent Chevron doctrine ruling that calls into question the power of government agencies to interpret and enforce laws.
The onerous nature of the proposed rule is the basis of the Construction Industry Safety Coalition’s opposition. In comments filed with the Labor Department in December 2023, CISC argues construction employers on the whole are mindful of the dangers of heat exposure and take steps to protect workers. Regulations and a prescriptive approach to bringing employers into compliance aren’t needed and could only complicate efforts to keep workers safe, it says.
“If OSHA proceeds with this rulemaking, the final rule could undermine the very purpose of the Occupational Safety and Health Act of 1970 (the “Act”) as employers overburdened with the requirements of a prescriptive regulation would no longer be able to devote the appropriate resources to worker safety and health,” the letter, backed by associations that include National Electrical Contractors Association (NECA) and Independent Electrical Contractors (IEC) states. “OSHA should focus their regulatory approach on the key concepts of 'Water, Rest, and Shade' and provide construction employers the necessary flexibility to make such a standard effective. For the same reasons, the CISC reiterates their invitation for OSHA to consider a separate regulatory approach for the construction industry, as OSHA has done in other rulemakings.”
Construction general contractors and subcontractors have long dealt with questions surrounding worker heat exposure. Concerns have only grown as extreme heat grows in frequency and degree, construction projects multiply and labor turnover may raise the percentage of workers needing time to acclimatize to extreme heat conditions, a key risk factor. An emerging construction industry trend that could reduce the incidence of heat-related illness is prefabrication, which takes some work off site into controlled environments where environmental exposure is reduced.
