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While employers have been inundated with COVID-19 health and safety issues, including the ever-evolving guidance from the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration, construction employers would be remiss not to “sweat” the increased risks of heat exposure that are coming as the summer months draw nearer. 

OSHA Heat-Stress Guidance

OSHA’s General Duty Clause requires employers to provide a place of employment that is “free from recognizable hazards that are causing or likely to cause death or serious harm to employees”—including heat-related hazards. State OSHA plans in California, Washington and Minnesota have adopted specific heat-stress standards, so employers in those states should review those standards and maintain compliance. 

In its May 2010 Standard Interpretation Letter, OSHA provided guidance to employers on acceptable methods of abating heat-stress hazards in workplaces, including but not limited to: 

  • permitting workers to drink water or cold liquids (e.g., sports drinks) at liberty;
  • establishing a work/rest schedule so that the exposure to high temperatures is reduced; and
  • developing a heat-stress program.

According to OSHA’s guidance, effective heat-stress programs should train employees on the effects of heat-stress and how to recognize and prevent heat-related illness and symptoms. The program should set forth specific procedures to follow in heat-related emergency situations and provisions that first aid should be immediately administered to employees displaying heat-related symptoms. Employers should also have a process to acclimatize new employees and re-acclimatize employees returning from three-days absence or more. Often times, heat illness and deaths occur within the first days of physical work in the heat before the body has acclimatized to the heat and humidity in a certain locality or jobsite. 

Additional Considerations

Aside from the advice in the above-referenced OSHA Interpretation letter, employers will want to take additional steps, where possible, to lessen the risk of heat-stress and heat-related illness. Such steps might include starting the workday earlier in the morning and stopping work before peak heat and humidity levels arrive. Employers may also consider allowing a greater number of, and more frequent, rest breaks and allowing employees to sit in the shade or in air-conditioning (even if it is in personal vehicles) to give them a break from the heat. 

Construction employers should make sure water coolers, bottled water or other fluids are readily available for employees on remote work sites, especially where running water is not available. Finally, employers should encourage (and consider providing) light-weight and breathable or wicking-type clothing that will assist in keeping employees cool during the workday. Educating employees how to identify signs of dehydration, including through posters regarding the color of their urine, may also go a long way to getting employees to drink more fluids and head-off dehydration and heat stress before they occur. 

Finally, OSHA has also provided guidance on how to prevent employees from unnecessary UV exposure. Pursuant to that guidance, construction employers should consider encouraging employees to cover sun exposed areas. This may include the use of clothing to cover exposed arms and legs, the use of hats and the use of UV-protective sunglasses or safety-glasses when working outside. Moreover, employers may wish to provide or encourage the use of a broad-spectrum sunscreen with an effective SPF rating. Finally, it is a good idea to educate workers on the risks of burns, blisters and skin cancer. 

COVID-19 Related Considerations

On May 13, 2021, the CDC issued guidance rescinding its requirements that members of the general public who are fully-vaccinated against COVID-19 wear facial coverings. 

Following the CDC’s May 13 guidance, federal OSHA announced on May 17, 2021, that employers should generally follow the CDC guidance and may permit fully-vaccinated workers to work without a mask—except for the healthcare industry. However, certain states continue to enforce their own requirements—for example Cal/OSHA recently announced a proposal whereby employers may still be required to have their employees wear masks well into the summer and potentially until their entire workforce is vaccinated. Cal/OSHA’s proposal will be voted on in early June 2021.

What are construction employers to do in light of the recent CDC and federal OSHA guidance? Well, first they need to determine if there are any state or local laws that they are subject to that may still require masks, even when a person is fully-vaccinated. Assuming the employer is subject only to the CDC’s guidance and federal OSHA standards, the employer likely has three choices: 

  1. continue to require all employees to wear a mask regardless of whether they are vaccinated or not; 
  2. permit only vaccinated employees to go without masks in the workplace if they provide proof of their vaccination, and require masks for all others; or 
  3. permit only vaccinated employees to go without a mask in the workplace based on an “honor system,” while requiring masks for all others. 

Options 2 and 3 each carry their own risks. 

With respect to Option 2, the Equal Opportunity Employment Commission has provided guidance that simply asking about vaccination status is acceptable and does not implicate the Americans with Disabilities Act. However, when asking about an employee’s vaccination status, an employer will necessarily collect confidential and sensitive information that the employer will have to safeguard. Moreover, asking about vaccination status may result in inadvertently eliciting disability-related information from employees or may lead to issues of medical or religious accommodation. 

Option 3 requires employers to trust their employees to be honest, not to place others at risk and for employers to keep some record of due diligence of determining who is representing that they were inoculated so as not to shirk ones duties under the CDC, OSHA and potentially state or local guidance. 

With at least some employees likely being required to wear masks into the summer months, what does this mean for employers and the risk of heat exposure? Some medical experts have warned that wearing masks during hot and humid summer months may exacerbate heat-stress issues. Wearing a mask typically causes a person to take more frequent breaths and some experts have warned that strenuous or vigorous physical activity should be avoided while wearing masks as a result. 

While masks may be here to stay in the workplace for a little longer, employers can mitigate the risk of masks exacerbating heat-stress by following the OSHA-related guidance and best practices discussed above. Construction employers should also consider methods to increase social distancing which may lessen the need for masks during strenuous work. Likewise, if permitted by local and state health authorities, employers may also suggest that employees remove their masks during secluded breaks (e.g., in their personal vehicle rather than a common breakroom). Finally, employers should have a stockpile of masks so employees can freely exchange sweat-soaked masks for clean, dry masks which may have greater breathability and to comply with OSHA’s guidance and requirements for a clean and healthful workplace.

Take-Aways to Beat the Heat

Construction employers will need to ensure they have adequate training for employees on the signs, symptoms and risks of heat-stress and an effective heat-stress and acclimatization program. However, construction employers will need to account for the fact that employees may still be will be wearing face coverings into the summer and perhaps even the fall. Employers will want to ensure they perform the proper hazard assessment and take appropriate steps to reduce employee exposure. Employers will also want a clear and effective plan to handle emergency heat-related situations.

Employers who have questions regarding best practices or methods to reduce heat-related exposure, or with OSHA and the CDC’s evolving COVID-19 guidance, can consult OSHA and the National Institute for Occupational Safety & Health, or a trusted and reputable safety professional or workplace safety attorney.

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