New OSHA Regulations Impacting the Construction Industry

The Occupational Safety and Health Administration (OSHA) is a federal agency responsible for ensuring safe and healthy working conditions for workers across the United States. The agency regularly updates and enacts new laws and regulations to protect workers and promote safe working environments. Failure to comply with these regulations can result in significant fines and penalties. As a result, it is important for contractors and other professionals in the field to stay up to date with the latest OSHA laws. In the following discussion, we will provide an overview of some of the key changes and updates to OSHA laws that are likely to directly impact the construction industry.

Heat-Related Injury and Illness

New regulations on heat injury and illness prevention are likely to take effect in early 2023. OSHA has confirmed that it plans to increase the number of inspections for heat-related injuries and illnesses by 100%. To accomplish this, OSHA may expand ongoing inspections to include heat-related hazards and will focus on heat priority days when the temperature is above 80 degrees. Employers should review OSHA’s new National Emphasis Program on heat illnesses and injuries for both indoor and outdoor workers.

During a public meeting, OSHA emphasized the importance of developing a written heat illness prevention plan, providing training on the signs and symptoms of heat illness, ensuring acclimatization, providing water and rest breaks, and providing shade and cool rest areas. OSHA also recommended implementing a “buddy system” and monitoring workers wearing face coverings.

Trenching and Excavation

According to OSHA, during just the first half of 2022, twenty-two workers died while performing trenching and excavation work, which exceeded the total number of deaths in all of 2021. This increase in trench-related fatalities has prompted OSHA to announce new enforcement initiatives. As part of its National Emphasis Program, OSHA plans on having its compliance officers conduct more than 1,000 trench inspections across the country in 2023. These inspections can be conducted during regular on-site OSHA inspections, and at any excavation site.

OSHA says that it will use all available tools to enforce trench safety regulations. This includes increased emphasis on how penalties for trenching and excavation incidents are evaluated, as well as the potential for criminal referrals for employers or others who fail to protect their workers from trenching hazards.

Injury and Illness Data

Electronic submission of injury and illness data will no longer required. OSHA is amending the Injury and Illness recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to maintain those records on-site, and OSHA will continue to obtain them as needed through inspections and enforcement actions. In addition to reporting severe injuries, establishments will continue to submit information from their Form 300A.

OSHA is also amending the recordkeeping regulation to require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission, which will facilitate use of the data and may help reduce duplicative employer reporting. Nothing in the final rule revokes an employer’s duty to maintain OSHA Forms 300 and 301 for OSHA inspection. These actions together will allow OSHA to improve enforcement targeting and compliance assistance, decrease burden on employers, and protect worker privacy and safety.

Tree Care Operations

The tree care industry has long been considered a high-hazard industry, but there is currently no OSHA standard specifically designed to address the industry’s unique safety and health hazards. Instead, OSHA currently applies a patchwork of standards to address the various hazards found in tree care operations. In response to a petition from the industry, OSHA issued an advance notice of proposed rulemaking (ANPRM) in September 2008 to gather information on the need for a specific standard. In May 2020, OSHA completed a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel, collecting input from small businesses in the industry on potential elements of a new standard, such as the scope of the standard, effective work practices, and arboricultural-specific uses of equipment. In December of 2022, OSHA issued its Notice for Proposed Rule Making (NPRM), which is the final step before the proposed rule is published for public comment.

Personal Protective Equipment

OSHA is planning to update its standards regarding the “fit” of personal protective equipment (PPE) that must be provided to construction workers. On September 7, 2022, OSHA issued its NPRM. Although the proposed rule has not yet been published, employers in the construction industry should continue to monitor this regulatory development, as it could have a significant impact on their businesses. Currently, under 29 CFR 1926.28, OSHA holds employers in the construction industry responsible for requiring the use of appropriate PPE in all operations where there is exposure to hazardous conditions, or where other specific construction standards indicate the need for such equipment to reduce hazards to employees.

Author’s note: This summary is for informational purposes only and does not constitute legal advice or opinion.

About the author: Peyton D. Mansure is an attorney with Anderson Jones, PLLC, a construction law firm located in Raleigh, North Carolina, with attorneys licensed in North Carolina and Georgia. Mansure has been representing clients in the construction industry for nearly a decade, focusing mainly on litigation and dispute resolution. For more information or questions about this article, please email him at [email protected]. Christian Lunghi contributed research for this article.