On July 25, 2023, Brian Lustbader was quoted in Construction Drive regarding the protection of workers from environmental hazards in the construction industry.
According to the article, the Occupational Safety and Health Administration (OSHA) has issued briefs emphasizing the importance of keeping workers safe from extreme heat and wildfire smoke, but the agency doesn’t have specific standards mandating employer compliance.
“Climate change is uncharted waters,” said Lustbader. “There’s a failure to address these issues because they’re so new.”
OSHA’s General Duty Clause, which requires employers to provide a safe work environment, is often used by the agency in lieu of more specific standards. And while it waits for a formal standard, the agency has instituted a national emphasis program for its inspectors regarding employees working outside during periods of extreme heat.
To stay in the good graces of those inspectors, Lustbader suggests measures such as providing masks and necessary respirators for unhealthy air, using misters for cooling in extreme heat, and shortening work hours if necessary. He also suggests that contractors put provisions in contracts to help give them cover if conditions become unsafe to work.
“In all my agreements, we have a clause that requires site safety,” said Lustbader. “Many require the contractor to provide a site safety manager who’s in charge of making sure the worksite is safe.” Language can be crafted to give the individual the discretion to take more time if conditions become unsafe, much as force majeure clauses did during the COVID-19 pandemic. “Force majeure basically talks about extreme conditions, whether it’s hurricanes, tornadoes or now, pandemics,” he explained. Contractors could add in language addressing 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.”
Of course, contractors should heed any notification requirements for owners if they do decide to shut down a job site due to hazardous environmental conditions and talk to owners about why they’re taking these steps. “The contractor just has to notify the owner that we’re doing this, and here’s why, and owners should be responsive to that,” Lustbader said. “It’s really a two-way street.”