From: ConstructionDive, Authored by: Zachary Phillips July 28, 2022

Until OSHA publishes a new heat standard, contractors should follow the agency’s guidance regarding how to prevent heat illness and death on their jobsites, according to presenters Wednesday at an Associated General Contractors of America conference in Washington, D.C.

This guidance — basically rest, water and shade — will likely be enhanced by the new standard. In the meantime, however, OSHA initiated a national emphasis program effective April 8, intended to protect employees from heat-related hazards and injuries.

Under the NEP, contractors that have heat illness incidents will continue to be liable under the agency’s general duty clause, the presenters at the Construction Safety, Health + Environmental Conference said.

The general duty clause, or section 5(a)(1) of the OSH Act of 1970 — which established OSHA and the National Institute for Occupational Safety and Health — states that places of employment must be “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” It’s often used in cases concerning combustible dust, struck-bys, workplace violence, ergonomics issues or infectious diseases, the presenters said.

OSHA inspectors can use the clause to cite construction employers across multiple categories where other, prescriptive, outlined standards don’t apply, according to Howard Mavity, partner at Fisher & Phillips, and James Sullivan Jr., co-chair of OSHA-workplace safety practice Cozen O’Connor.

“It’s evolved from being primarily aspirational to being a tool to cite when there’s not an obvious standard,” Mavity said.

A lack of a heat standard for the time being means the agency falls back on the 5(a)(1) clause for these types of incidents. However, that clause doesn’t always apply, the lawyers said, especially in cases like heat where OSHA doesn’t provide more prescriptive guidance.

“If you see 5(a)(1) your ears should go up and you should say, ‘I may have a defense here,’” Sullivan said.

Nevertheless, employers failing to recognize hazards or evidence of an incident can undermine that defense — OSHA can use the general duty clause, as intended, to cite employers who failed to act to stop a recognizable hazard.