Impact on construction businesses by OSHA's NEP-Outdoor and Indoor Heat-Related Hazards

Subpart C — General safety and health provisions

September 1, 2022

Mr. Stephen E. Sandherr
Chief Executive Officer
The Associated General Contractors of America (AGC)
2300 Wilson Blvd., Suite 300
Arlington, VA 22201-3308

Dear Mr. Sandherr:

We received your letter regarding the Occupational Safety and Health Administration's (OSHA) new heat enforcement program, OSHA Instruction, CPL 03-00-024, National Emphasis Program (NEP)-Outdoor and Indoor Heat-Related Hazards. Your letter stated the AGC's aim to help ensure that its members clearly understand what OSHA expects for effective heat injury and illness programs that both "comply" with its NEP and comply with OSHA's existing regulations, standards, and/or the general duty clause (GDC), Section 5(a)(1), of the Occupational Safety and Health (OSH) Act of 1970.¹ OSHA is committed to providing all employers, including the construction industry and small businesses, the information and resources required to fulfill their obligation to provide a safe and healthful workplace, particularly where their work exposes them to heat hazards. Outreach and compliance assistance are core components of OSHA's mission for setting and enforcing standards that ensure safe and healthful working conditions for working men and women. The agency has and will continue to engage in these activities throughout the course of the NEP's implementation and beyond.

As to your specific concerns, we would like to clarify that the OSHA Heat Illness Prevention Campaign materials remain an effective blueprint for reducing the risk of heat illness.² While we cannot rule out circumstances where the GDC may require additional measures from a specific employer, the Campaign materials remain an important blueprint for all employers to follow to protect their employees from heat illness. More importantly, however, the NEP does not impose new substantive requirements on employers.³

Actually, OSHA's NEP instructs its field offices to provide compliance assistance to employers for any OSHA inspection occurring on days where the outdoor heat index is expected to reach or exceeds 80 degrees Fahrenheit. As explained in the NEP, this is the point at which serious occupational heat-related illnesses and injuries become more frequent, especially in workplaces where unacclimatized workers are performing strenuous work (e.g., intense arm and back/lifting work, carrying, shoveling, manual sawing, pushing and pulling heavy loads, and walking at a fast pace), without easy access to cool water, or cool/shaded areas, when working in direct sunlight or areas where other radiant heat sources are present.

Additionally, the NEP also targets for programmed inspections - on any day that the National Weather Service (NWS) has announced a heat warning or advisory for the local area - local establishments from those industries, both construction and non-construction, that are expected to have the highest exposures to heat-related hazards and resulting illnesses and deaths. This target list includes industries that meet one or more of the following objective criteria: 1) high numbers or high incidence rates of heat-related illnesses from the Bureau of Labor Statistics (BLS) data; 2) elevated number of days away from work (BLS) or high numbers of severe cases of heat-related illnesses, as indicated by death or hospitalization from OSHA severe injury reports made by employers; or (3) the highest number of heat-related GDC 5(a)(1) violations and hazard alert letters (HALs) over a 5 year period (2017 thru 2021), or the highest number of OSHA heat inspections since 2017.

Your letter also expresses concern, "that OSHA enforcement of the NEP will, at best, be arbitrary and capricious and, at worst, set the stage for workplace hazards unrelated to heat that lead to non-heat related injuries or illnesses." On the contrary, the NEP's intent is to take a pro-active approach to prevent needless illness, injury, and death, by identifying worker exposure to heat hazards and providing technical assistance to employers who are either uninformed or lacking in their protection of workers from preventable heat-related hazards. As with any enforcement inspection, inspections under the NEP will follow procedures in the Field Operations Manual (FOM) and evaluate compliance with the OSH Act through observations, interviews, and document review. Any proposed citation for a heat-related health hazard for both indoor and outdoor work activities will be issued under the GDC and only when all elements of a GDC violation have been established. As OSHA stated in its fact sheet on the NEP, we recognize "that many businesses want to do the right thing by developing heat illness prevention plans to keep their employees safe."⁴ But OSHA's fact sheet also points out these realities: the danger of extreme heat increases each year due to continuing effects of climate change; 18 of the last 19 summers were the hottest on record; workers suffer over 3,500 injuries and illnesses related to heat each year; and low-wage workers and workers of color disproportionally make up the population of employees exposed to high levels of heat, intensifying socioeconomic and racial inequalities. These realities are why the President has made heat and climate change a national priority.⁵

We will be eager to hear from you or your members if you encounter citations or proposed abatements you believe to be arbitrary or unreasonable. Your input will help us address any emerging issues and allow us to refine the application of our policies.

Additionally, regarding another concern in your letter about whether OSHA's compliance officers would be adequately trained to enforce heat-related exposures under the new NEP, "[f]or example, what training will be provided to compliance officers to be able to determine the proper 'workload' for each particular employee and job task?" We want you to be reassured that OSHA has and continues to train its field staff, including compliance officers, who will be providing technical assistance and conducting compliance inspections for the NEP and how to appropriately enforce OSHA requirements and standards, as well as developing citations under Section 5(a)(1) of the OSH Act. Your letter mentioned that the OSHA FOM states that GDC citations "are not intended to allege that the violation is a failure to implement certain precautions, corrective actions, or other abatement measures, but rather address the failure to prevent or remove a particular hazard." Our staff attorneys reiterated this very instruction to our compliance officers during OSHA's internal webinar trainings conducted upon the issuance of the NEP in April. Regional Offices are also conducting training of field staff and reviewing the agency's technical procedures for conducting heat-related inspections, as provided in sources such as in OSHA's Technical Manual (OTM).⁶

Finally, your letter requested further discussion of the NEP with OSHA officials. We provided an overview of this program at the Advisory Committee on Construction Safety and Health (ACCSH) meeting on June 15, 2022, of which your organization is a member. OSHA sincerely thanks the AGC and other organizations and stakeholders who are partnering with OSHA to help its members and businesses keep America's workers safe from heat hazards, such as the Center for Construction Research and Training (CPWR) and the International Safety Equipment Association (ISEA), who have long been helping the construction industry with heat hazard education and training. OSHA will continue to enforce the law and offer guidance to employers and employees to help keep America's workplaces safe. Again, we reiterate our interest in hearing from you if you think these or other concerns are materializing in our enforcement efforts.

Thank you for your interest in occupational safety and health. I hope you find this information helpful. If you have additional questions, please contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Kimberly A. Stille, Director
Directorate of Enforcement Programs

¹See OSHA Instruction, CPL 03-00-024, National Emphasis Program - Outdoor and Indoor Heat-Related Hazards, April 8, 2022, available at: www.osha.gov/enforcement/directives/cpl-03-00-024.
²Seewww.osha.gov/heat, and www.osha.gov/heat-exposure.
³Seewww.osha.gov/enforcement/directives/publicationdate: "OSHA Directives are written statements of policy and procedure on a single subject, which generally include implementation guidelines and responsibilities for the Agency's affected offices. Instructions available here are not standards, regulations, or any other type of substantive rule. No statement in these Instructions should be construed to require the regulated community to adopt any practices, means, methods, operations, or processes beyond those which are already required by the OSH Act (29 USC § 668) or standards and regulations promulgated under the OSH Act."
⁴See OSHA Fact Sheet, available at: www.osha.gov/sites/default/files/heat-nep-factsheet-en.pdf.
⁵See www.osha.gov/news/newsreleases/national/09202021.
⁶See www.osha.gov/otm/section-3-health-hazards/chapter-4.
⁷See www.osha.gov/advisorycommittee/accsh.