In response to the potential dangers that heat exposure can cause, the Occupational Safety & Health Administration (“OSHA”) introduced its first-ever proposed standard titled “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” in 2024. The proposed rule, if implemented, will apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agricultural sectors where OSHA has jurisdiction. However, the proposed rule excludes short-duration employee exposure to heat. Among other requirements, the proposed rule introduces several key requirements aimed at protecting workers from the hazards of excessive heat. If it is implemented, the proposed rule requires employers to conduct regular heat assessments and monitor workplace temperatures.
Specifically, OSHA’s standard introduces specific heat index thresholds that dictate the necessary actions employers must take to protect their workers. With a heat index of 80 degrees or above, employers must ensure that employees have access to an adequate supply of drinking water and provide designated break areas. Where the heat index is 90 degrees or higher, employers must also monitor employees for signs of heat illness and provide mandatory breaks. In addition to these requirements, employers must also provide heat safety training, implement a heat illness prevention plan, maintain monitoring data, and create an incident reporting process.
OSHA’s Advisory Committee on Construction Safety and Health unanimously approved the proposed rule in May of 2024. Most recently, the Department of Labor began a five-day informal rulemaking hearing that will elicit testimony from labor groups and a variety of other groups. However, there is concern that the current administration will not implement the proposed rule given its prior roll back of environmental and safety regulations. Also at issue is whether OSHA’s traditionally broad rulemaking authority will be substantially curtailed post-Chevron, requiring the agency to craft narrowly-tailored regulations that closely track statutes they seek to implement in order to survive a legal challenge to its regulations.
Critics of the proposed rule argue that these mandates are already implemented in the construction industry. They also argue that the proposed rule increases safety risks, and implements administrative burdens that pose significant challenges for businesses. The critics, though supportive of the aim to protect employees from heat illness, argue that the proposed rule should be flexible and risk-based. That is, critics believe that the heat risks be based on job-specific conditions, regional climates, and worker acclimatization, rather than relying on rigid heat thresholds.
Another issue that needs to be considered is whether the extreme heat set forth in the proposed rule qualifies as an excusable delay event or a force majeure event. These provisions generally exempt a party from paying damages that the other party incurs based on a delay. Typically, these provisions include reference to unforeseeable adverse weather conditions or events. However, the issue becomes whether heat indices exceeding the limits set forth by the proposed rule are unforeseeable weather events, and whether courts sitting in different parts of the country should permit relief under excusable delay or force majeure provisions based on the guidelines proposed by OSHA. The OSHA rule was proposed to coincide with President Biden’s executive order combatting climate change, and the climate change and excessive heat debate will undoubtedly have an impact on the construction industry and contractual interpretation.
If owners and contractors fail to consider the requirements of the proposed rule when creating a construction schedule, they might expose themselves to a prolonged project and delays, along with various disputes related to these issues. Construction sites, with their combination of physical labor and exposure to the elements, are very likely to face the risks the proposed rule aims to address. Though many contractors already have policies in place to assess and react to heat, many in the industry believe that more comprehensive heat safety measures may help to further protect employees. Whether the OSHA rule is implemented or not, the construction industry must be able to assess and react to heat in order to protect it employees and ensure that projects stay on track.
No comments:
Post a Comment