Heat legislation is well-meaning, but badly flawed | Opinion

Heat legislation is well-meaning, but badly flawed | Opinion

Published: Aug. 25, 2024, 9:00 a.m.

By Dave Rible

The safety and protection of the thousands of men and women working in the construction industry is our greatest priority. Ensuring they can earn a living while not falling victim to any health hazards is what we do every day. We owe as much to our 1,100 plus members and their employees. That’s what makes proposed state legislation – S2422 – so concerning to us. It claims to protect workers when its many provisions would actually provide little that’s new in the way of safety, while possibly crippling the industry.

The bill in question would essentially force the agricultural, manufacturing, and construction industries to postpone all “nonessential” work any time the heat index rises above 80 degrees. At face value, that might sound reasonable. A deeper dive, however, reveals several flaws with the legislation.

First and foremost, there are significant differences between the agricultural, manufacturing, and construction industries as well as all other industries governed by the proposed legislation. Data from the Bureau of Labor Statistics shows that the transportation construction industry has reported few heat illnesses, injuries or fatalities over the past decade. More specifically, the BLS reported only three fatalities over a ten-year period from 2011-2020 for Highway, Street and Bridge construction workers; all of these occurred in 2015.

This is not by accident, as our members and contractors in the transportation construction industry have been actively working to protect their personnel from the effects of extreme heat, even before the implementation of OSHA rules or any State standard in New Jersey. They have done this by developing heat illness prevention policies.

It makes little sense to disrupt these strategies by imposing a one-size-fits-all, indiscriminate mandate. Given the success of our industry in controlling such injuries for its workers, we believe that any legislation that is implemented to protect workers from heat hazards should be outcome based, and not prescriptive in nature, so as not to unintentionally negate some of the effective practices currently in use.

The one-size-fits-all approach is not the only shortcoming of the legislation. The proposed 80-degree standard would greatly limit utility and transportation contractors from performing their work. In 2023, every single day in July had a high temperature in excess of 80 degrees. Half of the days in June and 20 days in August experienced temperatures in excess of 80 degrees. Under this bill, contractors would be forced to postpone all “nonessential” tasks for weeks (if not months) at a time. Such a requirement would greatly delay important construction projects, including public infrastructure, roadways, and utility projects.

Other states, including California and Washington to name a few, employ higher heat indexes than 80 degrees. This is with good reason. The National Weather Service (NWS) does not initiate alert procedures unless the Heat Index reaches 105 degrees for at least two consecutive days. While no one would argue that 80 degrees is cool weather, it is barely higher than what the U.S. Department of Energy recommends setting home and business thermostats to during warmweather months.

The 80-degree threshold itself is misleading. Take the example of hot mix asphalt, which is usually between 275 and 300 degrees Fahrenheit when it is delivered to the jobsite and must be applied before it cools down significantly. Thus, even if the heat index is below 80 degrees, if contractors are monitoring environmental heat during this work as required by the proposed bill, the temperature will almost always be higher than 80 degrees due to the ambient temperature of the asphalt.

Further complicating matters, the term “non-essential” is not defined in the bill. Arguably, all work performed by our members would be “essential” work. In fact, in April 2020, Governor Murphy signed Executive Order #122 during the COVID pandemic allowing construction workers to be “essential” employees. If during the pandemic, our contractors were deemed “essential” and were found to be responsible by the Governor to prevent the spread of COVID on job sites, shouldn’t they also be deemed responsible to keep their employees safe from heat exhaustion without it putting in danger the state’s infrastructure projects?

We have no question that this legislation is well intentioned. We also have no doubt that our members do everything they can to protect their construction workers. That is why the construction industry should be exempt from this legislation. It adds little to the protections our members already have in place but does much to harm New Jersey’s ability to maintain and upgrade our infrastructure.

David Rible is Executive Director of the Utility and Transportation Contractors Association of New Jersey.