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Heat-Hazards and Potential OSHA Heat Hazard Standard |
With summer in full swing and many states recording record high temperatures, it is important for contractors to develop and implement a plan to address heat-related hazards. The recent reported fatality of a roofing contractor in Oregon due to heat-related illness following the record-setting heatwave in the Pacific Northwest only reinforces the need for contractors to have a plan for heat-related hazards. Having a plan in place, and implementing that plan, will not only protect employees from heat-related illness but will also protect contractors from unnecessary OSHA citations and fines.
Currently, there is no specific federal OSHA standard governing heat-related hazards (California, Minnesota, and Washington do have state specific heat hazard standards). Without a specific federal heat hazard standard, OSHA relies upon the general duty clause under Section 5(a)(1) of the Occupational Safety and Health Act when citing contractors for heat-related hazards. The general duty clause requires employers to provide their employees with a place of employment that “is free from recognized hazards that are causing or likely to cause death or serious harm to employees.”
All of this might change. For over a decade, OSHA has waged its Heat Illness Prevention campaign to address heat-related illness and fatalities in the workplace. However, OSHA has recently taken its first step toward adopting a heat hazard standard. This spring, the Biden administration released its regulatory agenda for upcoming agency rulemakings and actions the administration expects to take through the end of the year. As part of the regulatory agenda, OSHA is scheduled to issue a Request for Information in October 2021 for a new OSHA heat hazard standard. The announcement can be found here.
OSHA has stated that the Request for Information “would allow the agency to begin a dialogue and engage with stakeholders to explore the potential for the rulemaking on this topic.” Time will tell what the proposed heat hazard standard will look like. However, for the time being OSHA will continue to rely on the general duty clause for citing contractors for heat-related hazards. To protect employees and prevent unnecessary citations, contractors should make sure that they follow OSHA’s heat prevention guidance, which can be found here.
If you have any questions regarding your OSHA compliance obligations as it concerns heat hazards in the workplace, please call or email either Philip Siegel or Ben Lowenthal. Philip can be reached directly at (404) 469-9197. Ben can be reached directly at (404) 469-9177.
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Changes to NLRB Enforcement Priorities
In a recent Memorandum, the acting General Counsel of the National Labor Relations Board announced significant changes to the enforcement priorities of the NLRB and its regional field offices. This shift is not surprising in light of the election of a Democratic President. The memorandum notes that increased workplace health and safety issues resulting from the pandemic, as well as employees’ political and social justice advocacy concerns, are circumstances compelling an emphasis on the protection of employees’ rights to engage in concerted activities.
The National Labor Relations Act grants employees the right to engage in concerted activities for the purpose of “mutual aid and protection.” The memorandum states that recent decisions by the NLRB (issued during the Republican administration) have restricted employees’ rights by interpreting “mutual aid and protection” narrowly. However, going forward, the priorities will be to review employee activity regarding a variety of societal issues to determine if those actions constitute mutual aid or protection under the Act. Specifically, cases involving retaliation against concerted employee conduct will be vigorously pursued where the employees’ protests can be tied to their interests as employees.
A second emphasis will be on protecting employees’ rights to act in concert. Specifically, the memorandum indicates a shift away from recent restrictions on whether an employee’s complaints or communications constitute concerted activity. The new approach will emphasize that employees may act in concert when discussing shared concerns about terms and conditions of employment, even when only one person is speaking to only one listener. Such conversations often raise concerns that affect the collective interests of employees, which could spur organizational considerations. No “magic words” are necessary, and concerted activity does not necessarily require that other employees join in a protest.
The memorandum also makes clear that the new emphasis will focus on broadening circumstances finding employee discussions to be inherently concerted. Discussions among employees sharing information about wages or work schedules implicate vital elements of employment and “thus are likely to spawn collective action.” In addition, discussions related to job security, workplace health and safety, and racial discrimination may be inherently concerted. The memorandum concludes that the focus will be on “the means to safeguard employee rights to engage in protected, concerted activity to redress an employer’s retaliatory response.”
The main takeaways here are that the NLRB will focus on broadening notions of “mutual aid and protection” and liberally interpreting “inherently concerted” communications among employees. As a result, employers will need to be mindful of the implications raised by the NLRB when addressing employee issues.
Further Questions? If you are facing an employee issue that might have NLRB implications or if you have any other questions about this article, please contact Scott Calhoun. You can e-mail Scott by clicking here, or you can call him directly at (404) 469-9195.
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Is an Adverse Reaction to a COVID-19 Vaccine a Recordable OSHA Event?
Construction employers have many questions concerning the COVID-19 vaccine, including whether they can require employees to get vaccinated as a condition of employment. We answered that question in our December e-blast, which can be accessed here. Another common question working its way through the construction industry is whether missed time away from work because of an adverse reaction to the vaccine required by the employer is a recordable OSHA event. OSHA recently answered this question for us.
The Department of Labor, which includes OSHA, has expressly stated that OSHA will not enforce its recordkeeping requirements to require any employers to record worker side effects from the COVID-19 vaccination through May, 2022. At that time, the Department of Labor states it will re-evaluate its position to determine the best course of action moving forward.
In answering this question, the Department of Labor noted that it, along with other federal agencies, is working diligently to encourage COVID-19 vaccinations. OSHA does not wish to have any appearance of discouraging workers from receiving the vaccination, and it also does not wish to disincentivize employers’ vaccination efforts.
If you have any questions concerning requiring, suggesting, or incentivizing employees to get vaccinated, please contact Philip Siegel. You can e-mail Philip by clicking here, or you can reach him directly at (404) 469-9197.
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Indemnity Clauses Encompassing Non-Third-Party Losses
When people think of indemnity, they usually think only of reimbursing someone for losses to a third party. In the construction industry context, this means subcontractors and contractors are aware they could potentially be responsible for payment to third parties for work performed to either repair or complete their work. While accurate in most instances, it is a popular misconception that indemnity provisions only protect from losses to third parties.
Georgia law defines “indemnify” as reimbursing another for a loss suffered because of a third party’s or one’s own act or default. That means indemnity provisions are not categorically limited to the recovery of losses to other parties. Instead, the definition of indemnity is broad enough to encompass, for example, the costs associated with pursuing the indemnity claim itself—a cost ordinarily paid by the indemnitee, not a third party. Whether an indemnity provision covers such damages depends on its language and is a matter of law for the court to decide using the rules of contract construction.
For example, in Georgia-Pac. Cedar Springs LLC v. MOR PPM, Inc., No. 1:13-CV-198 (LJA), 2016 WL 9023600 (M.D. Ga. Aug. 29, 2016), a plaintiff sought indemnity for attorney’s fees incurred in pursuing negligence and breach of contract claims against a defendant. The language in the contract required that claims for indemnification had to “arise out of or result from the performance of the Work.” The court ultimately agreed with the defendant’s argument that the plaintiff’s claim for indemnity of attorney’s fees did not arise from the work itself, but rather from enforcement of the contract. Nevertheless, the court noted that under Georgia law an award of attorney’s fees is proper when a contract’s language provides for such recovery. Accordingly, had the indemnity provision included language encompassing attorney’s fees arising from the enforcement of the contract between the parties—the defendant would have been required to indemnify the plaintiff for its own legal costs.
It is imperative that contractors and subcontractors review and understand every provision in a contract. However, it is critical that they carefully examine indemnity provisions and determine the scope of their possible liability. If you have any questions regarding indemnity, please contact Juan Rodriguez. You can e-mail Juan by clicking here, or you can reach him directly at (404) 469-9183.
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Philip Siegel and Leanne Prybylski are in Las Vegas this week presenting at the International Roofing Expo. Philip is speaking on OSHA issues, while Leanne will be discussing the current material availability and price volatility crises. |
Philip will be back in Las Vegas to speak at the Western States Roofing Expo on September 22. Philip will present his session on Killer Contract Clauses, and he will present a second session on Real Live Wins and Losses in labor and employment law.
On September 25, Philip and Ben Lowenthal will be presenting to the Insulation Contractors Association of America at its annual conference in San Antonio. Philip will discuss the most common employment issues affecting insulation contractors, while Ben will cover key contract provisions for insulation contractors.
Ben Lowenthal recently authored several articles for the construction industry. You can access Ben's article on Increased OSHA Inspections, Enforcement, and Penalties here. You can access his article on The Pro Act here. Ben's article on the unforeseeable employee misconduct defense to an OSHA citation can be accessed here. Ben also recently presented an educational for Levelset regarding How to Use Contract Clauses to Defend Against Material Price Swings. The presentation can be viewed here.
Leanne Prybylski recently spoke to the Mississippi Roofing Contractors Association at its annual conference in Destin, Florida. Leanne presented on how to use contracts to manage volatile material availability and pricing.
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