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News July 27, 2023

Protecting workers from extreme heat and smoke

Construction job sites have been affected by extreme heat and wildfire smoke in much of the U.S. this summer, according to Construction Dive.

The Occupational Safety and Health Administration currently does not have specific standards mandating employer compliance regarding extreme heat and wildfire smoke. The agency is working on a standard to address extreme heat in the workplace, but the timeline is unclear. It also released guidance in June regarding protecting workers from wildfire smoke, noting the dangers of breathing partially burned particulate matter and urging employers to take steps such as giving workers respirators, rescheduling work or letting employees work inside when possible.

However, contractors who responded to a recent survey on Construction Dive said not having a mandatory rule can put them in a tricky spot; the lack of regulations means a contractor cannot say the project has to shut down to comply with a heat or smoke mandate and often feels pressured to continue working to meet project schedules.

Attorneys say there are consequences for contractors who push timelines because of worker safety in such circumstances. OSHA’s General Duty Clause, which requires employers to provide a safe work environment, is often used by the agency in place of more specific standards. If inspectors find a general disregard from contractors to protect employees from extreme heat or smoke, the General Duty Clause gives them the authority to impose fines, which start at $15,625 per day for serious violations and could exceed $150,000 for willful or repeat offenders.

Construction attorney Brian Lustbader suggests contractors employ measures such as providing masks and necessary respirators for unhealthy air, using misters for cooling in extreme heat and shortening work hours if necessary. However, if workers become sick or even die because of environmental exposure, contractors or their insurance companies could be liable for worker’s compensation claims and civil suits.

To help navigate these issues, attorneys say contractors can include provisions in contracts to help protect them and their workers if conditions become unsafe. It could include designating a safety supervisor who is responsible for monitoring extreme heat or smoky conditions; enforcing break policies; ensuring there is a water cooler onsite; and making sure the individual has discretion to stop work during hazardous conditions. Contractors could add language involving extreme heat or wildfire smoke, which could give them a defense and help them buy more time with owners if they need to pause work.

“A force majeure clause says the contractor doesn’t necessarily have to keep to a schedule,” Lustbader said. “It says it’s an excusable delay.”

Lustbader says contractors should talk to owners and explain the situation when they believe they should shut down work because of hazardous conditions.


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