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UPDATED, July 28: The U.S. Department of Labor announced that its Occupational Safety and Health Administration has issued a heat hazard alert to remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces.
The department also announced that OSHA will intensify its enforcement where workers are exposed to heat hazards, with increased inspections in high-risk industries like construction and agriculture. These actions will fully implement the agency’s National Emphasis Program on heat, announced in April 2022, to focus enforcement efforts in geographic areas and industries with the most vulnerable workers.
It comes after President Joe Biden announced a series of actions aimed at protecting workers from the impact of extreme heat, including asking the U.S. Department of Labor to issue a first-ever hazard alert for heat.
The hazard alert is intended to reaffirm existing worker protections regarding heat injury and illness under federal law. As part of the alert, the announcement said the DOL will be conducting outreach to employers and workers to raise awareness of these protections.
Additionally, the announcement stated that the DOL will increase enforcement of heat safety violations and step up inspections of industries deemed “high risk,” including construction.
ABC strongly supports worker safety and protection from heat injury and illness, while maintaining flexibility for the fluid nature of the construction environment. Employers play a key role in providing training and awareness regarding heat protection, and ABC will continue to support members in ensuring preparedness for heat-related issues through a wide range of resources.
OSHA Actions Related to Heat Illness and Prevention:
On Oct. 27, 2021, OSHA issued an Advance Notice of Proposed Rulemaking on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, which requested information on how to implement regulations to prevent workers from hazardous heat. ABC, as a steering committee member of the Construction Industry Safety Coalition, submitted comments in response to the ANPRM on Jan. 26, 2022.
On April 12, 2022, OSHA announced a National Emphasis Program on Outdoor and Indoor Heat-Related Hazards, which sets out a targeted enforcement effort and reiterates OSHA’s compliance assistance and outreach efforts.
On June 22, OSHA announced it will be holding Small Business Advocacy Review panel (also known as a SBREFA panel) meetings this summer to gather input on a possible Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule.
The panel is tentatively scheduled to convene on or about Aug. 21 and will host a series of video conferences with Small Entity Representatives, or SERs, selected from the potentially regulated sectors, which include agriculture, construction, landscaping, manufacturing, oil and gas, warehousing, waste management, utilities and food service, specifically in restaurant kitchens. Each SER will be asked to review background materials and participate in a single video conference on the subject matter.
The panel will be comprised of representatives from OSHA, the U.S. Small Business Administration’s Office of Advocacy and the Office of Management and Budget’s Office of Information and Regulatory Affairs.
ABC member contractors that are interested in participating in the SBREFA panel are encouraged to reach out to ABC Senior Director of Policy Karen Livingston at [email protected] for further information about the process.
On July 21, the U.S. Department of Labor’s Occupational Safety and Health Administration issued its Improve Tracking of Workplace Injuries and Illnesses final rule, which will undo the ABC-supported provisions of the 2019 final rule promulgated under the Trump administration and reprise the 2016 Obama-era rule. The final rule becomes effective on Jan. 1, 2024, for certain employers and OSHA intends to make much of the data it collects publicly available online.
In a press release, ABC announced its opposition to the final rule stating, “Unfortunately, the Biden administration is moving forward with a final rule that does nothing to achieve OSHA’s stated goal of reducing injuries and illnesses,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “Instead, the final rule will force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized and misused for reasons wholly unrelated to safety, as well as subject employers to illegitimate attacks and employees to violations of their privacy.”
What does the final rule do?
OSHA Resources:
ABC submitted comments to the DOL outlining its concerns in June 2022.
On July 13, 2023, the U.S Department of Labor launched its “High Road to the Middle Class” map, highlighting existing workforce development programs that meet certain criteria to be designated by the DOL as “high road training programs.” The DOL defines these programs using the following criteria:
Due to the union partnership requirements, all construction workforce development programs that do not involve construction unions have been excluded from inclusion on the map.
“ABC agrees with the DOL on the importance of high-quality, demand-driven and accessible programs to upskill the construction workforce, but unfortunately the agency has taken a discriminatory and partisan approach with the ‘High Road to the Middle Class’ program that fails to acknowledge the value of employer and association workforce development programs not affiliated with unions,” said Ben Brubeck, ABC vice president of regulatory, labor and state affairs. “This is especially egregious considering more than 88% of the construction workforce voluntarily chooses not to be part of a union.”
“We call on the DOL to embrace inclusive, all-of-the-above workforce development policies to educate the more than half a million construction workers needed in 2023 alone. This includes the efforts of ABC’s 68 chapters, which are educating craft, safety and management professionals using innovative and flexible learning models like just-in-time task training, competency-based progression and work-based learning, in addition to more than 300 federal and state government-registered apprenticeship programs across over 20 different occupations. All of these efforts are necessary to develop a safe, skilled and productive workforce. In addition, ABC member companies participate in ABC education programs and administer comprehensive in-house workforce development programs as well as GRAPs independent of ABC’s network and invested an estimated $1.5 billion in construction industry workforce development in 2022.”
Additional information on the “High Road to the Middle Class” program is available on the DOL’s blog. Learn more about ABC’s workforce development efforts at abc.org/workforce.
The U.S. Department of the Treasury plans to release a proposed rule implementing provisions of the ABC-opposed Inflation Reduction Act. The law provides over $270 billion in tax credits for the construction of solar, wind, hydrogen, carbon sequestration, electric vehicle charging stations and other clean energy projects, conditioned on requirements that project contractors meet prevailing wage and apprenticeship requirements outlined in the legislation and IRS guidance.
Treasury is expected to issue a proposed rule to provide additional guidance on these requirements imminently.
“Unfortunately, the U.S. Treasury’s announcement of a formal rulemaking means more uncertainty for contractors, developers and financers of clean energy projects who have raised important questions in reaction to the inadequate initial guidance required by the Inflation Reduction Act published late last year and effective Jan. 30, 2023,” said Ben Brubeck, ABC’s vice president of regulatory, labor and state affairs. “It may take more than a year for the IRS to complete its formal rulemaking notice-and-comment process, which will create additional risks for stakeholders in the interim, and ultimately, stall clean energy projects dependent on the full tax credits previously available to this marketplace without the apprenticeship and prevailing wage policy requirements.”
As additional information becomes available, it will be added to ABC’s IRA Resources and Guidance for Contractors and Developers available at www.abc.org/ira.
On July 17, ABC submitted comments to the U.S. Department of Labor’s Occupational Safety and Health Administration in response to OSHA’s request for comments on its efforts to develop a leading indicators resource for usage by employers to improve safety management systems.
In the comments, ABC supported and commended OSHA’s efforts to promote the usage of leading indicators to improve safety. Leading indicators are proactive, preventive and predictive measures used to improve workplace safety. The comments emphasized the importance of core leading indicators identified in ABC’s 2023 Safety Performance Report.
The comments additionally encouraged OSHA to consider ABC’s STEP Safety Management System, which utilizes 25 key components, including a number of leading indicators to help participants improve workplace safety, in its development of the resource. Founded in 1989, STEP has evolved into an industry-leading safety management system that dramatically improves safety performance among participants regardless of company size or type of work.
As a steering committee member of the Construction Industry Safety Coalition, ABC also submitted comments with the coalition supporting OSHA’s efforts and identifying areas where the agency should focus its efforts.
Worker Walkaround Representative Designation Process
On July 17, 2023, the U.S. Department of Labor sent its proposed rule on Worker Walkaround Representative Designation Process to the Office of Management and Budget’s Office of Information and Regulatory Affairs for review. This is the final step before the proposed rule is released publicly. It is expected to be issued imminently.
While the text of the proposed rule is not yet available to the public, the regulatory agenda indicates that the proposed rule would “clarify the right of workers and certified bargaining units to specify a worker or union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer, if in the judgment of the Compliance Safety and Health Officer such person is reasonably necessary to an effective and thorough physical inspection.”
On Feb. 21, 2013, OSHA issued a letter of interpretation endorsing union representatives and other nonemployee third parties accompanying OSHA inspectors on walkaround inspections at nonunion workplaces, which ABC adamantly opposed, expressing serious concerns. OSHA eventually rescinded the letter of interpretation on April 25, 2017.
Additional Background on the 2013 Letter of Interpretation:
ABC will continue to monitor this issue and provide updates as they become available.
Overtime
On July 13, the DOL sent its proposed rule on the “exemption of bona fide executive, administrative, and professional employees from the Fair Labor Standards Act’s minimum wage and overtime requirements,” also known as the “white-collar” exemptions, to the OMB’s OIRA for review. This is the final step before the proposed rule is released publicly. It is expected to be issued imminently.
In 2016, the DOL issued a final overtime rule that would have doubled the minimum salary level for exemption from $23,660 to $47,476 per year. ABC, along with several other business groups, sued the DOL in federal court and succeeded in blocking the rule from taking effect.
In 2019, the Trump-era’s DOL issued a new overtime proposal to formally rescind the 2016 rule and readjusted the salary threshold to $35,568 per year. The final rule went into effect on Jan. 1, 2020.
ABC continues to urge the Biden DOL to abandon or postpone any future overtime rulemaking, since it was just modified in 2019. Further, any new overtime rule would fail to recognize the lingering economic consequences of inflation, global supply chain disruptions, rising materials prices and workforce shortages.
Form LM-10 Employer Report
On July 18, the OMB’s OIRA concluded its review of the DOL’s final rule on the Form LM-10 Employer Report. This is the final step before the final rule is released publicly. It is expected to be issued imminently.
On Oct. 13, 2022, ABC submitted a comment letter to the DOL’s Office of Labor-Management Standards regarding its proposed revisions to the LM-10 Employer Report form. ABC opposed the new proposed revision, which would add a checkbox to the form for employers to disclose whether they are a federal contractor, as well as identifying information and the federal agency or agencies contracted for.
Employers must file this form with the OLMS to disclose certain payments, expenditures, agreements and arrangements, including the hiring of outside labor relations consultants to help inform their employees regarding union organizing or collective bargaining, known as “persuader activities.”
It is clear that the intent of the proposed revision is to discourage persuader activities by federal contractors, despite the fact that these activities are lawfully permitted by the Labor-Management Reporting and Disclosure Act within certain limitations. The revision would accomplish this goal by increasing public pressure on these federal contractors and assisting advocacy efforts against these companies and federal agencies that choose to employ them, as well as potentially providing a basis for federal agencies to “blacklist” these contractors in future regulations.
Continue to monitor Newsline for further updates on the DOL’s regulatory activity.
On June 22, the U.S. Department of Labor’s Occupational Safety and Health Administration announced it will be holding Small Business Advocacy Review panel (also known as a SBREFA panel) meetings this summer to gather input on a possible Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule.
Learn more about the panels and how small businesses can participate.
Background:
ABC strongly supports worker safety and protection from heat injury and illness. However, flexibility for employers must be maintained in any rulemaking on this issue. A regulatory approach—if adopted—must be simple and should integrate the key concepts of “water, rest, shade.” ABC also supports a separate regulatory approach for the construction industry to ensure the regulation is adaptable to the fluid nature of the construction environment.
A strong health and safety culture doesn’t just happen; you achieve it through planning and execution every step of the way. To get the job done well, you need the right tools, materials and equipment, with upskilling and training tailored to each worker. Most importantly, you must ensure work flows in the right sequence. You need to invest time, talent and resources to perform robust safety orientations with team members and view any unplanned events as opportunities to learn and improve through well-executed incident investigations.
New Hire Safety Orientations
Building a psychologically safe culture requires intentional and consistent action. New Hire Safety Orientations are your opportunity to immerse team members into your safety culture and engage them in a way that is meaningful to them, developing relationships and a sense of belonging.
These orientations should involve leaders and are more than simply paperwork and videos. If your company is just starting your industry-leading safety journey (and culture shift), what a new hire experiences in the field might be different than what you reviewed during onboarding. How you handle this differential during the implementation phase is important for the future success of that employee. When you implement improvements successfully, everyone experiences the sense of being on the journey together.
Incident Investigations
Incident investigations are traditionally performed following unplanned events such as an injury or property damage. But you can achieve greater success by investigating every unplanned event—whether that unplanned event has a positive or negative outcome. When the unexpected happens, you need to investigate. This includes near misses (near hits, good catches, etc.) as well as finding out why something went exceptionally better than planned. Those investigations are also learning opportunities.
Take your incident investigations a step further; go beyond the standard practices and techniques. if worker error was a root cause of the incident, dig deeper to understand the context and conditions that influenced the workers in that situation. Be curious and create a psychological safe space to engage your team to determine why their actions made sense in the context and conditions of the incident. Only then can you fully learn from the experience and continue building your health and safety culture.
The Journey to Industry-Leading Results
The roadmap to building a strong health and safety culture begins with improving new hire safety orientations and intentional incident investigations. It seems simple, but the reality is that this journey does not happen by itself. We must be committed to safety as a core value every day and in every situation to achieve industry-leading results. Leaders and all team members must be committed to supporting each other to drive results.
Looking for help building your safety program?
Discover resources available through ABC’s STEP Safety Management System and other health and safety topics at abc.org/safety.
For more information or assistance, please reach out to Joe Xavier or Aaron Braun.
Construction Executive won the Silver EXCEL award from Association Media and Publishing for general excellence in the magazine—circulation 50,001 or more category. Since its launch in 2003, CE has won more than 20 editorial awards.
“This is a huge honor for the entire CE team,” said Editor-in-Chief Christopher Durso. “Nothing is more important to us than creating relevant, engaging and attractively designed content for our audience, and if the EXCEL Awards are any indication, we’re hitting the mark.”
The Software & Information Industry Association’s EXCEL Awards is the largest and most prestigious program recognizing excellence and leadership in association media, publishing, marketing and communication. From digital publishing to magazines, newsletters, newspapers, journals, books and promotional content, the EXCEL Awards encompass every association communication vehicle. AM&P's 43rd Annual EXCEL Awards were celebrated on June 27, 2023, at the National Housing Center in Washington, D.C.
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Construction is highly labor-intensive, and nothing gets done without our highly skilled and dedicated workforce. While standards tend to treat everyone equally, construction workers are not equally affected by heat those with certain health conditions or circumstances are more susceptible to heat illness. Thus, requirements designed for the least affected workers might not be sufficient to protect those at higher risk. One size does not fit all.
The ramification is that members need to proactively engage this complexity with flexibility. It comes down to equipping and empowering a crew leader to know the crew on a personal level, check in with them frequently and act with appropriate care. It requires pre-planning and could also include increased rest/water/shade, starting/finishing earlier, and modifying the workflow to perform highest heat work during the cooler part of the day, especially during times of extreme heat. Final planning at the jobsite should include an open discussion during the daily huddle at the beginning of each shift to ensure each crew member has input on the plan, has buy-in to follow the plan, understands the need to watch out for one another and knows they must communicate any early symptom of heat illness quickly.
ABC has many resources on the subject, including webinars. The Occupational Safety and Health Administration and the National Safety Council also have tips for staying safe in extreme heat and during the summer in general.
Check out the resources below for more information.
https://www.nsc.org/community-safety/safety-topics/seasonal-safety/summer-safety/heat
https://www.osha.gov/heat-exposure/water-rest-shade
https://www.abc.org/Safety/Emergency-Preparedness-Safety-Resources#338951966-governmental-agency-quick-links
2022 Webinar
Heat Stress: The Science, Politics and Ramifications
https://register.gotowebinar.com/recording/6748005648988071430