No. 13-0224 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, 

v. 

A.H. STURGILL ROOFING, INC., 

Respondent. 

BRIEF FOR AMICUS CURIAE

NORTH AMERICA’S BUILDING TRADES UNIONS 

 VICTORIA L. BOR 

 SUE D. GUNTER 

 Sherman Dunn, P.C. 

 900 Seventh Street, N.W., Suite 1000 

 Washington, DC 20001 

 (202) 785-9300 

Counsel for North America’s 

 Building Trades Unions 

 

May 14, 2018 
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1. Policy Considerations: OSHA «««««««««««««««««««

2. Legal Considerations: The Americans with Disabilities Act««««««««

D Restrictions on securing health information «««««««««««

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c. The lack of protection for employees whose underlying health 

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ii

TABLE OF AUTHORITIES

Cases Page(s)

Compass Env’l, Inc.,

23 BNA OSHC 1132 (No. 06-1036, 2010), aff’d, 663 F.3d 1164 (10th Cir. 

2011) ........................................................................................................................................22

Conroy v. NY State Dep’t of Corr. Servs.,

333 F.3d 88 (2d Cir. 2003).......................................................................................................13

Cossette v. Minnesota Power & Light,

188 F.3d 964 (8th Cir. 1999) ...................................................................................................12

Echazabal v. Chevron USA, Inc.,

536 U.S. 73 (2002)...................................................................................................................15

EEOC v. Murray, Inc.,

175 F.Supp. 2d 1053 (M.D. Tenn. 2001).................................................................................15

Fredenburg v. Contra Costa County Dep’t of Health Servs.,

172 F.3d 1176 (9th Cir. 1999) .................................................................................................12

* Kansas City Power & Light Co.,

10 BNA OSHC 1417 (No. 76-5255, 1982) ...............................................................................6

Lee v. City of Columbus,

636 F.3d 245 (6th Cir. 2011) ...................................................................................................12

Estate of Mauro v. Borgess Medical Center,

137 F.3d 398 (6th Cir.1998) ....................................................................................................16

Miller v. Whirlpool Corp.,

807 F.Supp. 2d 684 (N.D. Ohio 2011).........................................................................13, 14, 16

O’Brien Concrete Pumping, Inc.,

18 BNA OSHC 2059 (No. 98-0471, 2000) .......................................................................22, 23

Phoenix Roofing, Inc.,

17 BNA OSHC 1076 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 1996)..................6, 7

Rohr v. Salt River Project Agric. Improvement and Power Dist.,

555 F.3d 850 (9th Cir. 2009), abrogated in part on other grounds in Univ. of 

Tex. SW Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013)..............................................................16

*Sec’y v. DeKalb Forge Co., 13 BNA OSHC Cases 1146, 1151, OSHRC Doc. 

No. 83-0299 (Comm’n 1987) ....................................................................................................8

*Cases principally relied upon.
iii

Sec’y v. Equitable Shipyards, 12 BNA OSHC 1288, 1293, OSHRC Doc. No. 81-

1685 (Comm’n 1985) ................................................................................................................8

Sullivan v. River Valley Sch. Dist.,

197 F.3d 804 (6th Cir. 1999) ...................................................................................................13

Wurzel v. Whirlpool Corp.,

482 Fed. Appx. 1 (6th Cir. 2012).............................................................................................15

Statutes and Regulations

Americans with Disabilities Act ........................................................................................... passim

42 U.S.C. § 12102(1)...............................................................................................................14

42 U.S.C. § 12112(d)(2)(A).....................................................................................................12

29 C.F.R. Part 1630, App. 1630.14(c) .....................................................................................13

29 C.F.R. § 1630.2(r).........................................................................................................15, 16

29 C.F.R. § 1630.15(e).............................................................................................................16

Occupational Safety and Health Act

29 U.S.C. § 651(b).................................................................................................................3, 5

29 U.S.C. § 655(a)(1).................................................................................................................6

29 C.F.R. § 1910.1053(i) .........................................................................................................11

29 C.F.R. § 1926.1101(m)(2)(ii)..............................................................................................10

Health Insurance Portability and Accountability Act ....................................................................10

Other Authorities

AFL-CIO, Death on the Job: The Toll of Neglect (2018)

available at https://aflcio.org/sites/default/files/2018-04/DOTJ2018nb.pdf..............................2

American College of Occupational and Environmental Medicine, Confidentiality of 

 Medical Information in the Workplace; Additional Guidance on

Medical Confidentiality in the Workplace #9 (Nov. 6, 2012), available 

at http://acoem.org/Confidentiality_Medical_Information.aspx (last 

visited May 10, 2018) ..............................................................................................................10
iv

Galassi, Thomas, Policy Background on the Temporary Worker Initiative (July 

15, 2014), available at 

https://www.osha.gov/temp_workers/Policy_Background_on_the_Temporary

_Worker_Initiative.html (last vistited May 7, 2018) ...............................................................18

Occupational Safety and Health Administration, U.S. Dept. of Labor, 

Occupational Exposure to Respirable Crystalline Silica; Final Rule, 81 

Fed.Reg.16285 (Mar. 25, 2016)...........................................................................................9, 11

OSHA, Protecting Temporary Workers, available 

at https://www.osha.gov/temp_workers/ (last visited May 7, 2018) ................................17, 18

OSHA, Using the Heat Index: A Guide for Employers, available 

at https://www.osha.gov/SLTC/heatillness/heat_index/pdfs/all_in_one.pdf

(last visited May 7, 2018) ........................................................................................................20

OSHA/NIOSH, Recommended Practices: Protecting Temporary Workers (OSHA 

Publication OSHA-3735-2014; DHHS (NIOSH) Publication Number 2014-

139), available at https://www.osha.gov/Publications/OSHA3735.pdf (last 

visited May 7, 2018). ...............................................................................................................21

Sheila Arbury, et al., Heat Illness and Death Among Workers – United States 

2012-2013, 63 Morbidity and Mortality Weekly Report 661 (DCDCP, Aug. 8, 2014),

available at https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6331a1.htm

(last visited May 11, 2018) .....................................................................................................19

Xiuwen Sue Dong, Julie A. Largay, Sang D. Choi, Xuanwen Wang, Chris Trahan 

Cain, & Nancy Romano, Fatal falls and PFAS use in the construction 

industry: Findings from the NIOSH FACE reports, 102 Accident Analysis and 

Prevention 102 (2017)..............................................................................................................19

Xiuwen Sue Dong, Julie A. Largay, Xuanwen Wang, Chris Trahan Cain, & 

Nancy Romano, The Construction FACE Database – Codifying the NIOSH 

FACE Reports, 62 Journal of Safety Research 217 (2017) .....................................1, 19, 20, 21

Xiuwen Sue Dong, Sang D. Choi, James G. Borchart, Xuanwen Wang & Julie A. 

Largay, Fatal falls from roofs among U.S. construction workers, 44 Journal of 

Safety Research 17 (2013) (copyrighted material; available from authors upon 

request) ......................................................................................................................................2

Xiuwen Sue Dong, Xuanwen Wang, and Julie A. Largay, CPWR Quarterly Data 

Report: Temporary Workers in the Construction Industry at 12 (Second Quarter

2015), available

at https://www.cpwr.com/sites/default/files/publications/Second%20Quarter%

202015.pdf (last visited May 7, 2018). ...................................................................................20
INTRODUCTION AND INTEREST OF THE AMICUS

North America’s Building Trades Unions (NABTU) is filing this amicus curiae brief on 

behalf of itself, its fourteen affiliated national and international construction unions and the three 

million workers they represent. These workers routinely labor in the extreme heat, whether they 

are outside, exposed to the elements, or inside structures that lack proper ventilation or other 

climate controls. Moreover, regardless of their tenure in the industry or with a particular 

employer, these workers are constantly assigned to new worksites and therefore, to new 

conditions to which they must be oriented and acclimated.

In the instant case, OSHA cited Sturgill Roofing for assigning its employees to work in 

excessive heat, without implementing proper measures to protect them from heat stress. In 

addition, Sturgill had an inadequate training program for its permanent employees, and failed to 

provide even that training to a temporary employee. The results of these failures were 

catastrophic: The employee newly assigned to Sturgill’s workforce suffered heat stroke and died. 

The events in this case illustrate a major problem in the construction industry. As a 

general matter, construction workers in the United States experience a disproportionate number 

of workplace fatalities. In fact:

[t]he construction industry has the highest number of work-related fatal injuries in 

the United States. In 2015, 985 construction workers died at worksites, 

accounting for 20.4% of the overall work-related fatal injuries in the country. 

These numbers are disproportionally high given that construction workers made 

up less than 7% of the overall total employment in 2015.

1

 1 Xiuwen Sue Dong, Julie A. Largay, Xuanwen Wang, Chris Trahan Cain, & Nancy Romano, 

The Construction FACE Datebase – Codifying the NIOSH FACE Reports, 62 Journal of Safety 

Research 217, 217 (2017) (internal citations omitted).
2

In 2016, 991 construction workers were killed, once again the highest number in any sector.2

The numbers are even more disproportionate when it comes to heat-related fatalities: One 

study showed that in 2002, 40% of occupational deaths related to heat strain occurred in the 

construction industry. And it is likely that heat strain and associated conditions are not the only 

work-related fatalities linked to working in excessive heat. For example, a study of fatal falls 

from roofs – a major source of work-related deaths in the construction industry – revealed that 

almost half of all roof fall fatalities occurred in the South,3 and although the authors 

acknowledged that further study is needed to understand why, they suggested that 

“environmental factors such as heat, humidity, and related fatigue” could be factors.4

Ensuring that construction industry employers appropriately protect their employees from 

the effects of working in hot environments is therefore critically important to NABTU and its 

affiliates. In this case, to its credit, Sturgill Roofing does not appear to be challenging OSHA’s 

contention that excessive heat is a recognized hazard. Instead, the company is challenging 

OSHA’s contention, and the Administrative Law Judge’s (ALJ’s) finding, that the heat on the 

day in question was sufficiently high to require it to take protective measures. NABTU does not 

intend to address the question whether the ALJ properly calculated the heat index on the 

worksite on the day in which M.R., the temporary employee, died, but will instead address two 

 2 AFL-CIO, Death on the Job: The Toll of Neglect, at 7 (2018), citing U.S. Department of Labor, 

Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 2016; available at 

https://aflcio.org/sites/default/files/2018-04/DOTJ2018nb.pdf

3 Xiuwen Sue Dong, Sang D. Choi, James G. Borchart, Xuanwen Wang & Julie A. Largay, Fatal 

falls from roofs among U.S. construction workers, 44 Journal of Safety Research 17, 18 – 19 

(2013) (copyrighted material; available from authors upon request) (one-third of all construction 

fatalities between 1992 and 2009 were fall fatalities; one-third of those falls were from roofs; and 

one-half of roof fall fatalities occurred in the South).

4 Id. at 23.
3

issues this case raises that are critically important to NABTU, its affiliates and the workers they 

represent.

NABTU will first address issues raised by the Commission’s first briefing question,

regarding whether employer knowledge of an employee’s underlying health issues is relevant to 

the Secretary’s case under the general duty clause. This question implicates a host of issues that 

extend far beyond this particular case. In particular, NABTU is concerned about the need to 

carefully protect employees’ privacy rights, while at the same time ensuring them a safe 

workplace. Construction contractors are increasingly attempting to subject prospective 

employees to extensive medical screening, purporting to want to ensure they assign employees 

only to positions they are physically able to handle. At worst, the notion of fitting the employee 

to the workplace runs directly counter to the statutory goal of providing, “so far as possible, 

every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. 

§ 651(b). At best, these “fitness for duty” programs reveal a serious tension between legitimate 

concerns about ensuring employees can work safely, and excessive and irrelevant intrusions into 

privacy, which invite opportunities for discrimination. The extent to which an employer knows 

or should know about its employees’ underlying health conditions, the actions the employer 

should take based on its knowledge, or lack of knowledge, and whether these questions have any 

bearing on the Secretary’s burden in proving a general duty clause violation are serious and 

complex issues. Yet, as we will explain, they are not issues presented by the facts in this case

and, we submit, are therefore not properly before the Commission for resolution.

NABTU is also filing this brief to stress the importance of the second citation, the failure 

to provide training, particularly to new employees. As noted, regardless of their tenure in the 

industry, construction workers are constantly assigned to new projects at new worksites, and 
4 

therefore, to new conditions to which they must be oriented. As so painfully illustrated in this 

case, the consequences of failing to properly train newly-assigned workers can be dire. 

ARGUMENT 

I. The Commission Should Not Use this Case to Decide Whether the Employer’s 

Knowledge is an Element of the Secretary’s Proof in a General Duty Clause Case. 

 The Commission’s first briefing question is: 

Whether an employer’s knowledge or lack of knowledge of its employees’ 

underlying health conditions or ages, and any legal restrictions upon the employer 

in obtaining such information, are relevant to the Secretary’s burden to establish a 

violation of the general duty clause in this case. 

As explained below, in this case, the Secretary established that the conditions on the 

worksite presented a recognized hazard, which Sturgill failed to mitigate, without regard to how 

the hazard affected any particular employee. Accordingly, Sturgill’s “knowledge or lack of 

knowledge of its employees’ underlying health conditions or ages,” was not an issue in this case. 

As we further explain, because of the complex legal and policy concerns the question raises, 

NABTU submits that the Commission should follow its own established precedent and refrain 

from deciding an issue that is not before it. 

A. The Secretary’s Proof in this Case did not Turn on the “Underlying Health 

Conditions or Ages” of Sturgill’s Employees. 

The Secretary cited Sturgill for exposing its employees to the hazard of “excessive heat,” 

and in particular, “the hazard of excessive heat from working on a commercial roof in the direct 

sun.” Decision of the Administrative Law Judge (“ALJD”) at 9. 

To establish a violation of the general duty clause, the Secretary must demonstrate, inter 

alia, that “a condition or activity in the workplace presented a hazard” which was “likely to 

cause death or serious physical harm.” ALJD at 9, citing Arcadian Corp., 20 BNA OSHC 2001, 

2007 (No. 93-0628, 2004). In this case, the Secretary cited Sturgill for the “condition or activity” 
5

of “excessive heat,” which exposed employees “to the development of serious heat-related 

illnesses such as heat exhaustion and heat stroke.” ALJD at 9. The ALJ found that the Secretary 

satisfied his burden in both regards. 

To establish the existence of the hazard, the Secretary began with the National Weather 

Service’s (NWS’s) heat index, which “measure[s] how hot it really feels when relative humidity 

is factored with the actual air temperature,” in “shady, light wind conditions.” Id. (internal 

citations omitted). At the time of the incident, the unadjusted heat index measured 85 degrees, 

putting it in the NWS’s “‘caution’ category . . . ‘for the likelihood of heat disorders with 

prolonged exposure or strenuous activity.’” Id. The Secretary then adjusted the index to reflect 

the conditions on the roof: occasional scattered clouds and, as the morning progressed, little 

available shade. Id. at 10-11. The NWS cautions that “exposure to full sunshine can increase the 

heat index values up to 15,” and Sturgill’s foreman confirmed that it was about 10 degrees hotter 

on the roof than on the ground. Id. at 10, 11. The Secretary accordingly adjusted the applicable 

heat index, bringing it into the “danger” category, id. at 10 – clearly a hazardous condition.

As for whether the hazardous condition was likely to cause serious physical harm, the 

ALJ credited the testimony of the Secretary’s expert, Dr. Theodore Yee, that the conditions on 

the roof could cause a range of physical problems, from “heat exhaustion for a younger person 

up to heat stroke for an older person,” id. at 11, all of which, as “Sturgill’s own training 

documents highlight . . . are serious conditions which require medical attention.” Id. at 13; see 

also id. at 14 (crediting Dr. Yee’s opinion that the working conditions on the jobsite were likely 

to result in a range of serious illnesses). And the ALJ found the evidence that the conditions on 

the roof were likely to cause serious physical harm bolstered by the “contemporaneous 
6

diagnos[es] of M.R.’s treating physicians” that he ultimately died from the excessive heat to 

which he was exposed on Sturgill’s worksite. Id. at 13-14.

The Secretary did not contend, nor did the ALJ find, that M.R.’s underlying health 

condition had any relevance to whether a hazard existed or whether the hazard was likely to 

cause serious harm. In fact, the ALJ was careful to state that “[t]he hazard was not M.R.’s 

particular medical condition that day. It was the jobsite heat-related illness hazard to which 

Sturgill’s employees were exposed.” Id. at 13 n. 20 (emphasis added). 

The ALJ’s conclusion in this regard was completely consistent with longstanding 

Commission precedent that, for purposes of the general duty clause, 29 U.S.C. § 655(a)(1), “a 

recognized hazard is a condition or practice in a workplace that is known to be hazardous by 

either the industry in general or the employer in particular. The hazard, not the specific incident 

resulting in injury, is the relevant consideration in determining the existence of a recognized 

hazard.” Kansas City Power & Light Co., 10 BNA OSHC 1417, 1422 (No. 76-5255, 1982) 

(internal citations omitted; emphasis added). By the same token, to demonstrate exposure, the 

Secretary need not show that an employee was actually exposed to the cited condition or 

practice; it is sufficient that access to the cited condition was reasonably predictable. Phoenix 

Roofing, Inc., 17 BNA OSHC 1076, 1079 (No. 90-2148, 1995), aff’d, 79 F.3d 1146 (5th Cir. 

1996). The evidence in this case was clear that employees were working on the roof and 

therefore their access to the elevated heat was “predictable.” 

The one respect in which Sturgill’s awareness – or lack of awareness – of its employees’ 

health conditions is relevant is with respect to abatement. But the relevant issue is not what 

Sturgill knew – or did not know – about its employees’ underlying health conditions. Instead, 

what is relevant is whether, in abating the heat hazard, Sturgill was monitoring the condition of 
7

its employees while they were on the worksite, working in hazardous heat, and especially 

observing any employee who, because he had not recently worked in these conditions, needed to 

be slowly acclimated.

The ALJ found that the Secretary presented a number of reasonable means of abating the 

hazard of excessive heat, including “[d]evelop[ing] an acclimatization program and provid[ing] 

training of heat related illness.” ALJD at 16. An effective acclimatization program would include 

“a practice of monitoring employees for signs and symptoms of heat-related illness.” Id. at 19. 

Yet, Sturgill’s foreman failed to recognize “[t]he initial signs that M.R. displayed of heat related 

illness, [including] odd behavior, sweating, and not drinking water,” id., indications that an 

employee – any employee – was not becoming properly acclimated to the conditions on the roof. 

That M.R., or any of the other employees exposed to excessive heat on that day, may have had 

underlying health conditions, and what Sturgill knew or did not know about those conditions 

were irrelevant to the Secretary’s demonstration that reasonable means existed to abate the 

recognized hazard in this case.

In short, the ALJ found that the Secretary established that Sturgill violated the general 

duty clause, without regard to Sturgill’s knowledge, or lack of knowledge, about M.R.’s 

underlying health condition. 

B. The Legal and Policy Implications of the Commission’s Briefing Question 

Counsel Against Deciding an Issue the Case Does not Present.

The answer to the Commission’s question – i.e., whether Sturgill’s knowledge or lack of 

knowledge of [M.R.’s] underlying health conditions or age[]” – was relevant to any of the issues 

“in this case,” Invitation to File Amicus Briefs, is therefore simple: It is “no.”5

 5 Indeed, although they have differing views on the facts in this case, both the Secretary and 

Sturgill agree that neither the employee’s age nor his underlying health condition were relevant 
8

And that, we submit, should be the end of the Commission’s inquiry in this case: The 

Commission should not go farther and attempt to decide whether, in another purely hypothetical 

case, the answer might be different. As a general matter, the Commission “do[es] not sit to pass 

upon abstract arguments.” Sec’y v. DeKalb Forge Co., 13 BNA OSHC Cases 1146, 1151, 

OSHRC Doc. No. 83-0299 (Comm’n 1987), citing Sec’y v. Equitable Shipyards, 12 BNA OSHC 

1288, 1293, OSHRC Doc. No. 81-1685 (Comm’n 1985). In this context in particular, NABTU 

respectfully submits that the Commission should be particularly wary of unnecessarily wading 

into areas that raise serious and complex legal and policy questions that cannot, and should not, 

be addressed untethered to specific facts. 

NABTU’s overriding concern, and its reason for participating in this case, is that OSHA 

and the Commission keep their primary focus on ensuring that conditions in the workplace are 

safe, and not on encouraging or permitting employers to exclude employees from the workplace 

as a means of achieving that goal. In this regard, we consider it critical that employers not get 

more information about employee health than is necessary to respond appropriately to their 

safety and health obligations. And that is precisely the issue the Commission is raising: how 

much information may, or should, an employer have to fulfill its OSHA obligations.

There may be situations in which employers need information in order to make special 

accommodations for individual employees, and there may be circumstances in which a failure to 

do so will constitute a violation of the general duty clause. But that is not this case, and without a 

factual basis on which test it, the Commission should not develop a legal theory that may have 

the unintended consequence of creating an incentive for employers to seek out and act on their 

 

to either the existence of a hazard or the adequacy of Sturgill’s heat-related illness prevention 

program. See Secretary’s Brief to the Commission at 20; Sturgill’s Brief to the Commission at 

22; Sturgill’s Reply Brief at 8.
9

employees private medical information, as a means of creating a workplace “free from 

recognized hazards.”

Law and policy are increasingly moving in the direction of shielding personal health 

information and protecting employees from adverse employment actions based on their health 

status. But these protections are not universal, and as documented in the hearings leading to the 

silica standard, construction workers tend to hide their injuries and illnesses out of fear of being 

laid off from their jobs.6 In the sections below, we will highlight aspects of policy and law that 

reflect the tensions between the privacy rights of employees, the limited circumstances in which 

it is appropriate for employers to have access to personal medical information, and the imperfect 

protections for employees against employers that act on medical information. Our point is not to 

provide an exhaustive review of possibly relevant policy and legal principles, nor to attempt to 

resolve the underlying tensions, but instead to provide the Commission with a sense of the 

context in which their question must be resolved, and the importance of not attempting to do so 

in the absence of a concrete controversy.

1. Policy Considerations: OSHA

OSHA’s view on employee privacy has changed dramatically in recent years. From the 

agency’s inception, its health standards required employers to offer their employees medical 

surveillance to identify and/or monitor either medical conditions that interfere with the 

employees’ ability to work safely in an environment with potential exposures to the regulated 

substance or conditions that employees risk developing as a result of exposure to the regulated 

substance. For example, the asbestos standard requires employers to offer medical surveillance 

 6 See Occupational Safety and Health Administration, U.S. Dep’t of Labor, Respirable 

Crystalline Silica; Final Rule, 81 Fed.Reg.16285, 16831-32 (Mar. 25, 2016) (preamble, 

summarizing testimony from workers).
10

aimed at determining whether employees working in environments covered by the standard can 

safely wear respirators and to monitor any signs of developing asbestos-related disease. 29 

C.F.R. § 1926.1101(m)(2)(ii) (specifying the content of the medical exams under the asbestos 

standard). Until recently, as part of these medical surveillance programs, OSHA routinely 

required the physician or other health care professional to provide the results of the medical 

exams directly to the employer. See, e.g., id. § 1926.1101(m)(4) (requiring the employer covered 

by the asbestos standard to obtain a written opinion from the examining physician, including the 

results of the medical exam). 

This approach is completely at odds with prevailing views about the confidentiality of 

medical information, as evidenced by the privacy provisions in the Health Insurance Portability 

and Accountability Act and, as discussed below, the ADA. It is also inconsistent with the 

American College of Occupational and Environmental Medicine’s guidance on Confidentiality 

of Medical Information in the Workplace, which specifies that while physicians asked to assess 

an employee’s fitness to perform a specific job should give their opinions, they “should not 

provide the employer with specific medical details of the diagnoses” without the employee’s 

consent.7

These issues were brought to the fore during the rulemaking proceedings for OSHA’s 

silica standards. The agency’s proposed standard would have followed its traditional approach 

towards medical surveillance. However, 

in response to the weight of opinion in th[e] rulemaking record and to evolving 

notions about where the balance between preventive health policy and patient 

privacy is properly struck, OSHA [took] a more privacy- and consent-based 

approach regarding the contents of the [physician or other licensed health care 

 7 ACOEM Confidentiality of Medical Information in the Workplace; Additional Guidance on

Medical Confidentiality in the Workplace #9 (Nov. 6, 2012), available at 

http://acoem.org/Confidentiality_Medical_Information.aspx (last visited May 10, 2018).
11

professional’s (“PLHCP’s”)] written medical opinion for the employer compared 

to the proposed requirements and earlier OSHA standards. 

81 Fed.Reg. at 16831. 

OSHA carefully considered what information about an employee’s health would be 

relevant to the employer in making decisions about its obligations under the standard, and 

determined that there was, in fact, very little. As a result, the silica standards require the 

employer to make medical exams available to its employees, and PLHCP to perform various 

tests to determine whether the employee has a silica-related disease and can use a respirator. The 

PLHCP is to disclose the results of those tests to the employee, but is only authorized to disclose 

to the employer any recommended limitations on the employee’s use of respirators and, solely

with the employee’s consent, any recommendations that the employee limit his exposure to silica 

or have a follow-up exam with a specialist. 29 C.F.R. § 1910.1053(i) (general industry silica 

standard); id. § 1926.1153(h) (construction silica standard).

As discussed in the next section, OSHA’s new recognition of the need to protect 

employee privacy and separate most medical information from decisions about how best to make 

the workplace safe is somewhat reflected in provisions in the ADA.

2. Legal Considerations: The Americans with Disabilities Act

The ADA is the primary law that explicitly restricts the health-related information 

employers may secure from their workforce and the actions employers can take in response to 

that information. These protections are important, but they neither completely shield all 

information nor protect all employees with underlying health conditions.

a. Restrictions on securing health information. 

As Sturgill points out in its brief, the ADA regulates the information employers may 

obtain about the medical condition of applicants and employees. These protections apply to all 
12

employees and prospective employees of covered employers, regardless whether they would be 

considered “person[s] with a disability” under the Act. Cossette v. Minnesota Power & Light, 

188 F.3d 964 (8th Cir. 1999); Fredenburg v. Contra Costa County Dep't of Health Servs., 172 

F.3d 1176, 1181-82 (9th Cir. 1999); Griffin v. Steeltek, 160 F.3d 591, 593-94 (10th Cir. 1998).

The statute breaks the employment relationship into three phases, each with different 

rules and restrictions. At each phase, employers are clearly entitled to ask whether employees 

can perform the essential functions of the job. There are no barriers to asking employees about 

their prior experience and, in the current context, how long since they last worked under similar 

circumstances. 

At the initial phase of the interview process, an employer may not conduct any “medical 

examination or make inquiries . . . as to whether the applicant is an individual with a disability.” 

42 U.S.C. § 12112(d)(2)(A). Because any sort of medical screening could potentially reveal 

whether someone is “an individual with a disability,” the restriction on inquiries extends to all 

sorts of medical screens. As the court explained in Lee v. City of Columbus, 636 F.3d 245, 253 

(6th Cir. 2011), “[o]bviously, asking an employee whether he is taking prescription drugs or 

medication or questions seeking information about illnesses, mental conditions, or other 

impairments an employee has or had in the past trigger the ADA’s . . . protections.” 

These restrictions completely disappear at the second phase: An employer may extend an 

offer to an applicant conditioned on the applicant submitting to medical inquiries, as long as all 

entering employees are subject to the same exam. Id. § 12112(d)(3)(A). At this point, the ADA 

places no restrictions whatsoever on the scope of the inquiries or the content of the medical 

exam. 
13

Once an applicant becomes an employee, the ADA strictly limits what an employer can 

ask. While the employer remains free to “make inquiries into the ability of an employee to 

perform job-related functions,” id. § 12112(d)(4)(B), it may only require employees to submit to 

medical exams or respond to medical inquiries “shown to be job-related and consistent with 

business necessity,” id. § 12112(d)(4)(A).

“An examination ordered by the employer must be restricted to discovering whether the 

employee can continue to fulfill the essential functions of the job.” 29 C.F.R. Part 1630, App. 

1630.14(c) “Thus, for an employer’s requirements for an exam to be upheld, there must be 

significant evidence that could cause a reasonable person to inquire as to whether an employee is 

still capable of performing his job.” Sullivan v. River Valley Sch. Dist., 197 F.3d 804 (6th Cir. 

1999). Moreover, these provisions are not “an excuse for every wide-ranging assessment of 

mental or physical debilitation that could conceivably affect the quality of an employee’s job 

performance.” Id. 811-12. They instead only permit exams that are “no broader or more 

intrusive than necessary,” and that are a “reasonably effective method of achieving a business 

necessity.” Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 97-98 (2d Cir. 2003).

Workplace safety is a “well-recognized business necessity,” id. at 97, which may, in 

appropriate circumstances, justify certain medical inquiries. However, whether an employer can 

subject an employee or group of employees to particular medical inquiries is a fact-intensive 

question that cannot be resolved in a vacuum. Thus, for example, in Miller v. Whirlpool Corp., 

807 F.Supp. 2d 684 (N.D. Ohio 2011), the employer responded to a serious accident and 

resulting OSHA citation by instituting a mandatory certification process, which required its 

employees to respond to detailed questions regarding past accidents and illnesses, all prescription 

medications, and specific physical conditions. While agreeing that workplace safety was a 
14

business necessity, the court found it needed to resolve whether, in that workplace and with 

respect to the employer’s particular safety concern, each question was a “reasonably effective 

and necessary method of achieving workplace safety,” and therefore, a lawful means to that end.

Id. at 687.

The ADA thus limits the medical information employers can obtain at various points in 

the employment process. But these limits are not absolute. There are times when employers can 

ask targeted questions of their employees, to seek information with a nexus to their ability to 

perform their jobs. And since there are no limits on the information employers can seek from 

applicants with conditional offers, the reality is that employers can amass signification amounts 

of private information about the members of their workforce. As explained below, the ADA 

limits the actions employers can take in response to this information, but only regarding persons 

with disabilities. 

b. Employment protections for individuals with disabilities.

All employees of covered employers are protected by the ADA’s restrictions on securing 

medical information. When it comes to adverse employment actions based on that information, 

however, the ADA protects a more limited group of employees: those who either have, have a 

record of having, or are “regarded as having” “a physical or mental impairment that substantially 

limits one or more major life activities of such individual,” 42 U.S.C. § 12102(1), and are 

“qualified” to perform the essential functions of the job, with or without reasonable 

accommodation, id. § 12111(8). Without attempting to provide an exhaustive review, we simply 

note there are a number areas in which, in dealing with employees with disabilities, the ADA 

speaks to how employers may respond to employees with known disabilities in an effort to make 

their workplaces safe. 
15

For example, the ADA does not permit an employer to assume that because an individual 

has insulin-dependent diabetes, she necessarily is unable safely to operate a forklift. See, e.g., 

EEOC v. Murray, Inc., 175 F.Supp. 2d 1053 (M.D. Tenn. 2001). Instead, the employer must 

engage in an interactive process to determine whether there is a reasonable accommodation that 

would permit the employee to perform the essential functions of the job. Nor could an employer 

assume that an employee with type-2 diabetes, who is otherwise qualified to perform the 

essential functions of the job, is unable to perform roofing work on a hot day, without 

determining whether there are reasonable accommodations – like a slower acclimatization 

process – that would enable the employee to perform the essential functions of the job.

An employee will not be considered “qualified” if her disability poses a threat to her own 

health or safety or that of other employees in the workplace, which cannot be eliminated or 

reduced through a reasonable accommodation. Id. § 12113(b) (providing a defense if the 

individual poses a threat to others); 29 C.F.R. § 1630.2(r); Echazabal v. Chevron U.S.A., Inc., 

536 U.S. 73 (2002) (endorsing EEOC regulation’s extending the “direct threat” defense to threats 

to the employee him or herself). But employers may not simply remove employees with 

disabilities out of fear their disabilities make them vulnerable to injuries on the job. Employers 

instead must make an individualized assessment of the employee’s condition, “based on medical 

or other objective evidence.” Wurzel v. Whirlpool Corp., 482 Fed. Appx. 1, *12 (6th Cir. 2012), 

quoting Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (internal quotations omitted). And the risk 

must be substantial: "An employer . . . is not permitted to deny an employment opportunity to an 

individual with a disability merely because of a slightly increased risk. The risk can only be 

considered when it poses a significant risk, i.e., high probability, of substantial harm; a 
16

speculative or remote risk is insufficient." Estate of Mauro v. Borgess Medical Center, 137 F.3d 

398, 403 (6th Cir.1998).8

These are all considerations employers must weigh in dealing with employees with 

disabilities, and of which the Commission must be mindful in considering whether employer 

knowledge about an employee’s underlying health is a factor in a general duty case. Another area 

where the ADA and OSHA potentially cross paths is found in EEOC regulations providing that 

“[i]t may be a defense to a charge of discrimination . . . that a challenged action is required or 

necessitated by another Federal law or regulation.” 29 C.F.R. § 1630.15(e). In the few cases in 

which they have raised the defense, employers have thus far been unsuccessful in pointing to 

OSHA regulations or the general duty clause to justify wide-ranging medical inquiries. See, e.g., 

Miller v. Whirlpool Corp., 807 F.Supp. 2d at 688 (court rejects employer’s argument that the 

general duty clause required it to implement a certification process that OSHA approved, noting 

that “approving certain medical questions is not the same as requiring them”); Rohr v. Salt River 

Project Agric. Improvement and Power Dist., 555 F.3d 850, 862 (9th Cir. 2009), abrogated in 

part on other grounds in Univ. of Tex. SW Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013) (rejecting 

employer’s argument that OSHA required it to implement certain respirator certification 

procedures that screened out employees with high blood pressure, writing that “OSHA’s 

requirements are sufficiently broad to allow Salt River the discretion to determine how, and how 

often, it would evaluate its employees’ ability to use respirators.”). This defense, and these 

 8 Whether an employee’s presence in the workplace constitutes a such a “direct threat” depends 

on four factors: “(i) the duration of the risk, (ii) the nature and severity of the potential harm, (iii) 

the likelihood that the potential harm will occur, and (iv) the imminence of the potential harm.” 

29 C.F.R. § 1630.2(r); Estate of Mauro, 137 F.3d at 402.
17

cases, are yet another cautionary note that the Commission must be careful not to put down a 

marker in this area absent a live and fully developed controversy.

c. The lack of protection for employees whose underlying health conditions 

do not qualify as “disabilities.”

While the ADA provides a framework for ensuring employers do not arbitrarily take 

adverse employment actions against persons with disabilities in the guise of creating a safe 

workplace, the Act provides no protections for other employees, whose underlying health 

conditions do not qualify as “disabilities.” When employers obtain the medical records of these 

employees, there is little that bars the employers from removing them from the workplace out of 

concern – warranted or not – that they are vulnerable to illness or injury; nothing that requires 

employers to evaluate and make decisions based on their ability to perform the essential 

functions of the job; nothing that requires the employers to consider reasonable accommodations 

or alternatives to just laying them off or sending them back to the referral hall. This lack of 

protection therefore potentially poses even more vexing issues as the Commission considers 

whether to make employer knowledge a factor in a general duty clause case.

In sum, the Commission’s first question raises a host of important and vexing questions, 

and implicates a number of different policy and legal concerns – none of which are issues in this 

case. NABTU therefore respectfully urges the Commission not to use this case as a vehicle for 

resolving this question.

II. The Importance of Ensuring Employers Comply with § 1926.21(b)(2)

A. Construction Workers are Typically “Temporary” Workers

OSHA launched its temporary worker initiative in 2013, to help protect workers whom 

the agency had determined were “more vulnerable to workplace safety and health hazards and 
18

retaliation than workers in traditional employment relationships ....”9 In its policy background 

for this initiative, OSHA explained that “numerous studies have shown that new workers are at 

greatly increased risk for work-related injury, and most temporary workers will be ‘new’ workers 

multiple times a year.”10 In other words, temporary workers are at greater risk not because they 

are necessarily new to the workforce, but rather, because they are new to the workplace, where 

they are facing unfamiliar environments, expectations and/or responsibilities. In these situations, 

they tend to be “more vulnerable to workplace safety and health hazards and retaliation than 

workers in traditional employment relationship,”11 and, as described below, less likely to be 

adequately trained about the hazards they may encounter on the worksite.

OSHA’s temporary worker initiative focused on “workers hired and paid by a staffing 

agency and supplied to a host employer to perform work on a temporary basis.”12 There are 

construction workers who, like M.R., are supplied to construction contractors by staffing 

agencies. However, in reality, most construction workers share the characteristics and attendant 

workplace vulnerabilities of such temps: They typically move from project to project, and from 

contractor to contractor, and are therefore “‘new’ workers multiple times a year.”13

 9 OSHA, Protecting Temporary Workers, available at https://www.osha.gov/temp_workers/ (last 

visited May 7, 2018).

10 Galassi, Thomas, Policy Background on the Temporary Worker Initiative (July 15, 2014), 

available at 

https://www.osha.gov/temp_workers/Policy_Background_on_the_Temporary_Worker_Initiative

.html (last visited May 7, 2018).

11 OSHA, Protecting Temporary Workers.

12 Galassi, supra. 

13 Id. 
19

Statistics confirm that construction workers employed on a short-term basis – like other 

“temps” – are at particular risk of illness or injury, regardless their tenure in the industry. Data 

collected during NIOSH Fatality Assessment and Control Evaluation (FACE) investigations of 

construction industry fatalities from 1982 to 2015 “indicate[] that a large number of decedents 

died when they had just started a new job.”14 In fact, “one in five was killed within the first two 

months on the job.” 15 Statistics from a review of the twenty general duty clause citations OSHA 

issued for heat hazards in 2012 and 2013 are even more stunning: Workers died in thirteen of 

those cases, with nine dying within their first three days on the job. “Four of the 13 deaths 

occurred on the first day at work in a new job or after returning from time away from the job, 

three on the second day, and two on the third day.”16

An analysis of workplace fatalities resulting from falls similarly showed “[d]ecedents 

having a short job tenure with the employer at the time of the incident more likely to die from 

falls. Among decedents who had been on the job for just one week, 54% of all fatalities were 

from falls, while the proportion was 42% for decedents having five or more years with their 

employer when the incident occurred.”17 Similarly, among construction workers who answered 

 14 Xiuwen Sue Dong, et al., The Construction FACE Database – Codifying the NIOSH FACE 

Reports, 62 Journal of Safety Research at 221. The statistics come from NIOSH’s Fatality 

Assessment and Control Evaluation (FACE) program, established in 1982, and the State FACE 

program, added in 1989, which together collect information from work-related fatality 

investigations. Id. at 217.

15 Id. at 221 (emphasis added).

16 Sheila Arbury, et al., Heat Illness and Death Among Workers – United States 2012-2013, 63

Morbidity and Mortality Weekly Report 661 (DCDCP, Aug. 8, 2014), available at 

https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6331a1.htm (last visited May 11, 2018).

17 Xiuwen Sue Dong, Julie A. Largay, Sang D. Choi, Xuanwen Wang, Chris Trahan Cain, & 

Nancy Romano, Fatal falls and PFAS use in the construction industry: Findings from the 

NIOSH FACE reports, 102 Accident Analysis and Prevention 102, 138 (2017).
20

“yes” when asked whether their jobs “lasted only for a limited time or until the completion of a 

project,” 84.4% reported working outdoors twice week or more (as compared to 70.3% of other 

construction workers), while 57.2% reported being exposed to vapors, gases, dust or fumes twice 

a week or more, as compared to 49.4% of their counterparts with longer term jobs.18

With particular resonance to this case, workers new to the job are most at risk for heatrelated illnesses. For example, an investigation by California OSHA of 25 incidents of heatrelated illness in 2005 revealed that “[i]n almost half of the cases, the worker involved was on 

their first day of work and in 80% of the cases the worker involved had only been on the job for 

four or fewer days.”19

Given research showing that temporary construction workers and construction workers 

new to a jobsite are more vulnerable to fatalities, training before beginning work on a 

construction jobsite is key to preventing serious injuries and fatalities. Analysis of NIOSH’s 

FACE database shows that only 42% of construction decedents were found to have received jobrelated training before their work-related deaths.20 Among the reports prepared as a result of the

investigations, “roughly three-quarters . . . included a recommendation for employers to provide 

 

18 Xiuwen Sue Dong, Xuanwen Wang, and Julie A. Largay, CPWR Quarterly Data Report: 

Temporary Workers in the Construction Industry at 12 (Second Quarter 2015), available at 

https://www.cpwr.com/sites/default/files/publications/Second%20Quarter%202015.pdf (last 

visited May 7, 2018).

19 OSHA, Using the Heat Index: A Guide for Employers, available at 

https://www.osha.gov/SLTC/heatillness/heat_index/pdfs/all_in_one.pdf (last visited May 7, 

2018).

20 Xiuwen Sue Dong, et al., The Construction FACE Database – Codifying the NIOSH FACE 

Reports, 62 Journal of Safety Research at 221.
21

safety training,” leading researchers to conclude that “implementing [safety training] 

recommendations prior to beginning work may mitigate the risk of [fatalities] in the future.”21

As part of its temporary worker initiative, OSHA similarly stresses the importance of 

training workers before they begin work at a new location. Whether provided by the staffing 

agency or the host employer, it is critical that “all temporary workers on new projects or newlyplaced on existing projects” receive “safety and health orientations.” Moreover, OSHA counsels 

that the “host employers should provide temporary workers with safety training that is identical 

or equivalent to that provided to the host employers’ own employees performing the same or 

similar work.”22

B. This Case Illustrates the Importance of Training “Temporary” Workers.

Sturgill’s Superintendent Gould provided safety orientation to the company’s permanent 

employees by showing two videos, providing the employees with a pocket guide published by 

the National Roofing Contractors Association, and reviewing the pocket guide with them. 

Although the videos dealt with heat, they did not address acclimatization. CX-13 at 3 (Foreman 

Brown’s testimony to CSHO Wallace, that while the videos “talk about the cold elements, 

liquids, . . . the heat, electrical cords and all that,” they do not cover “how to get used to being on 

the roof where it is hot.”) Similarly, although the pocket guide stressed the “importan[ce] of 

understand[ing] the precautions you need to avoid heat related illness,” it did not explicitly 

address the steps employees need to take when they first begin work in a hot environment. RX-9 

at 6. 

 21 Id. at 222.

22 OSHA/NIOSH, Recommended Practices: Protecting Temporary Workers 4 (OSHA 

Publication OSHA-3735-2014; DHHS (NIOSH) Publication Number 2014-139), available at

https://www.osha.gov/Publications/OSHA3735.pdf (last visited May 7, 2018).
22

In addition to their initial orientation, permanent Sturgill employees periodically took the 

OSHA 10-hour training. The course included a segment on heat stress, but there was no evidence 

introduced that it covered acclimatization. See Tr. 433; RX-13. Finally, the company regularly 

conducted tool box talks, including two that dealt with heat-related issues. These talks were 

presented in a 52-week cycle. The heat-related topics were not necessarily presented during the 

summer, and were not presented on this job. ALJD at 7. 

The ALJ correctly found that Sturgill’s training for its permanent employees fell short of 

§ 1926.21(b)(2)’s command that the company “instruct each employee in the recognition and 

avoidance of unsafe conditions” by providing “reasonable and necessary instruction specific to 

the recognition and avoidance of risk factors related to the development of health-related 

illnesses.” ALJD at 24. That Sturgill “failed to provide the instructions that a reasonably prudent 

employer would have given in the same circumstances,” Compass Env’l, Inc., 23 BNA OSHC 

1132, 1134 (No. 06-1036, 2010), aff’d, 663 F.3d 1164 (10th Cir. 2011), on how “to avoid the 

unsafe conditions which they may encounter on the job,” O’Brien Concrete Pumping, Inc., 18 

BNA OSHC 2059, 2061 (No. 98-0471, 2000), was abundantly clear in the manner in which 

Sturgill’s foreman treated M.R. when he came to the site. He failed to conduct systematic 

acclimatization and to carefully monitor behavior on the jobsite, which were necessary to ensure 

M.R.’s safety. 

Whatever the limitations in the instruction Sturgill provided its permanent employees, 

Sturgill provided none of that training to M.R. When M.R. reported to the PNC job on August 1, 

Foreman Brown gave him no training on heat-related hazards or on recognizing the signs and 

symptoms of heat-related illness. ALJD at 4. The foreman pointed out the water coolers and the 

break area on the roof and told M.R. to let him know if he got hot and needed a break. Id. But 
23

telling someone he can drink, seek shade and take breaks is very different from training someone 

in the importance of taking those steps to acclimate to the heat and protect himself from serious 

injury or even – as in this case – death.

The contrast between the manner in which Sturgill treated its permanent and temporary 

employees, and the complete lack of training Sturgill provided to its temporary employee before 

sending him to work, is symptomatic of a serious problem in the construction industry. Whether 

they are traditional “temps,” supplied by staffing agencies, or long-term workers, whose jobs 

take them from one worksite and contractor to another, construction workers are constantly 

“new” to their worksite, facing new challenges and hazards. It is critically important to hold 

employers accountable for providing adequate training to these workers, as the ALJ did in this 

case.

CONCLUSION

Underlying this case is a significant proposition on which all of the parties appear to 

agree: heat stress is a recognized hazard, and in the absence of a standard, OSHA can address it 

through the general duty clause. What separates the parties is not this legal issue, but is instead

the narrow factual question whether the heat on the particular day on which Sturgill was cited 

rose to a level at which the employer should have recognized it posed a hazard.

Through its briefing order, the Commission appears to be using this case to raise a far 

more complex issue: the extent to which an employer’s knowledge about its employees’ health 

should be an element in a general duty clause case. As discussed, for construction workers, 

whether employers can or should seek out information about their underlying health conditions, 

and what actions, if any, employers can or should take based on that information are serious 

questions that have important implications about both their privacy rights and their rights to 
24

expect workplace conditions to be safe. They are not, however, issues presented by this case. 

Given the vexing legal and policy issues the Commission’s question raises, NABTU respectfully 

urges the Commission not to wade into this area of the law in the absence of a concrete 

controversy.

Finally, NABTU urges the Commission to take seriously the importance of ensuring that 

construction employers recognize that the employees commonly share the characteristics of 

“temps” and need to be provided training whenever they are new to their worksite.

Respectfully submitted,

Victoria L. Bor

Sue D. Gunter

Sherman Dunn, P.C.

900 Seventh Street, N.W. Suite 1000

Washington, D.C. 20001

202/785-9300

bor@shermandunn.com

gunter@shermandunn.com

Counsel for North America’s Building Trades Unions
APPENDIX 

1. AFL-CIO, Death on the Job: The Toll of Neglect (2018) (excerpts)

2. American College of Occupational and Environmental Medicine, Confidentiality of

Medical Information in the Workplace; Additional Guidance on Medical Confidentiality

in the Workplace 9 (Nov. 6, 2012)

3. Galassi, Thomas, Policy Background on the Temporary Worker Initiative (July 15, 2014)

4. Occupational Safety and Health Administration, U.S. Dept. of Labor, Occupational

Exposure to Respirable Crystalline Silica; Final Rule, 81 Fed.Reg.16285 (Mar. 25, 2016)

(excerpts)

5. OSHA, Protecting Temporary Workers

6. OSHA, Using the Heat Index: A Guide for Employers (excerpts)

7. OSHA/NIOSH, Recommended Practices: Protecting Temporary Workers (OSHA

Publication OSHA-3735-2014; DHHS (NIOSH) Publication Number 2014-139)

8. Sheila Arbury, et al., Heat Illness and Death Among Workers – United States 2012-2013,

63 Morbidity and Mortality Weekly Report 661 (DCDCP, Aug. 8, 2014)

9. Xiuwen Sue Dong, Julie A. Largay, Sang D. Choi, Xuanwen Wang, Chris Trahan Cain, & 

Nancy Romano, Fatal falls and PFAS use in the construction industry: Findings from the 

NIOSH FACE reports, 102 Accident Analysis and Prevention 102 (2017)

10. Xiuwen Sue Dong, Julie A. Largay, Xuanwen Wang, Chris Trahan Cain, & Nancy

Romano, The Construction FACE Database – Codifying the NIOSH FACE Reports, 62

Journal of Safety Research 217 (2017)

11. Xiuwen Sue Dong, Xuanwen Wang, and Julie A. Largay, CPWR Quarterly Data Report:

Temporary Workers in the Construction Industry at 12 (Second Quarter 2015) 
The Toll of Neglect

DEATH ON THE JOB

27TH EDITION • APRIL 2018

A NATIONAL AND 

STATE-BY-STATE PROFILE OF

WORKER SAFETY AND HEALTH 

IN THE UNITED STATES
JOB FATALITIES, INJURIES AND ILLNESSES

On average, 14 workers were fatally injured and more than 10,000 workers were injured or made 

ill each day of 2016. These statistics do not include deaths from chronic occupational diseases, 

which claim the lives of an estimated 50,000–60,000 workers each year.

Job Fatalities

In 2016, there were 5,190 workplace deaths due to traumatic injuries, a significant increase over 

the 4,836 deaths reported in 2015.

2 The rate of fatal job injuries in 2016 also increased to 3.6 per 

100,000 workers from 3.4 per 100,000 workers in 2015.

The biggest increase in job fatalities was in the service-providing industries, where the number 

of job fatalities increased by 13% (from 2,399 to 2,702 deaths). The job fatality rate declined in 

mining and manufacturing and was unchanged in construction, all industries that receive the 

greatest oversight from OSHA and MSHA. But in all other sectors, the fatality rate increased. 

Deaths from workplace violence increased by 23% (from 703 to 866 deaths) and are now the 

second-leading cause of job death. Asian and black workers also saw a significant increase in job 

deaths in 2016, as did older workers (ages 55 and older).

Fatalities by State

Wyoming had the highest job fatality rate in 2016, at 12.3 per 100,000 workers, followed by 

Alaska (10.6), Montana (7.9), South Dakota (7.5) and North Dakota (7.0). Connecticut had the 

lowest state fatality rate (1.6 per 100,000 workers), followed by Rhode Island (1.8), California 

(2.2), Maine (2.4), New Jersey (2.4) and Washington (2.4).

From 2015 to 2016, fatality rates increased in 31 states. Alaska experienced a 159% increase, 

followed by Massachusetts (57%), South Dakota (53%), Oregon (50%) and Rhode Island (50%).

Industry, Occupation, Event and Demographic Highlights

In 2016, the construction sector had the largest number of fatal work injuries (991), followed by 

transportation and warehousing (825) and agriculture, forestry, fishing and hunting (593). 

Industry sectors with the highest fatality rates were agriculture, forestry, fishing and hunting 

(23.2 per 100,000); transportation and warehousing (14.3), mining, quarrying, and oil and gas 

extraction (10.1) and construction (10.1).

Within the mining and extractive industries in 2016, BLS reported 63 deaths in oil and gas 

extraction—the lowest since BLS has been reporting this data. According to separate statistics 

reported by the Mine Safety and Health Administration, in 2016 there were eight deaths in coal 

mining and 17 deaths in metal and nonmetal mining, the safest year in mining history. 

Preliminary data for 2017 show a significant increase in coal mine fatalities, with 15 deaths, and 

a decline in metal and nonmetal fatalities, with 13 deaths.

 

2U.S. Department of Labor, Bureau of Labor Statistics, Census of Fatal Occupational Injuries, 2016.

Released Dec.19, 2017.

7
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Healthy Workforce Now

Confidentiality of Medical Information in the Workplace

11/6/2012

ACOEM Committee on Ethical Practice in Occupational and Environmental Medicine 

As do all physicians, occupational and environmental medicine (OEM) practitioners rely on the patient to completely and

truthfully disclose private information before rendering a professional opinion. In order to facilitate the disclosure of private

personal information, employees must feel that their private disclosures will be treated in a dignified and confidential

manner. Because a physician must first of all do no harm, information received in confidence should be disclosed only when it

is in the best interests of the patient or society, or required by applicable law or valid governmental rule or regulation.

When considering requests for job accommodation, addressing threats to health or safety, or reviewing claims for workers’

compensation benefits, employers may require access to personal information. Additionally, employers shoulder an increasing

responsibility for providing other types of benefits such as health and disability insurance, family medical leave, and

employee assistance programs. As a result, the employer becomes inextricably and unavoidably involved in employees’

personal and medical affairs. Thus, competing interests between the employee’s right to privacy and the employer’s

legitimate interest in the health of the employee creates sensitive ethical and legal dilemmas for physicians who practice

occupational medicine. Other parties, such as insurers, state and federal agencies, and accrediting organizations may also

have a right to patient records, and this right must be considered and managed carefully.

The laws governing the confidentiality of employee medical information are complex and vary depending on the relationship

between parties and by jurisdiction.1 Difficult ethical problems arise when the physician must attempt to balance the

importance of the employee’s need and legal right to keep information confidential versus the employer’s need and legal

right to know or the interests of other parties.

ACOEM Position 

The American College of Occupational and Environmental Medicine (ACOEM) acknowledged the importance of medical

confidentiality with publication of its first Code of Ethical Conduct in 1976. This Code was later revised in 1993 to reflect

changes in the character of the modern workplace,2 and subsequently updated in 2010.3 The 2010 Code of Ethics states that

physicians should:

“5. Protect Patient Confidentiality. Keep confidential all individual medical, health promotion, and health screening

information, only releasing such information with proper authorization. Recognize that employers may be entitled to

counsel about an individual’s medical work fitness.”3  

Additional Guidance on Medical Confidentiality in the Workplace 

While the ACOEM Code of Ethics provides direction, the ACOEM Committee on Ethical Practice in Occupational and

Environmental Medicine believes that additional guidance on the issue of confidentiality is necessary. Therefore, in addition

to Point 5 of the ACOEM Code of Ethics, the College is providing the following guidance regarding medical record

confidentiality:

1. Legislation and local practice may treat medical records created in the context of occupational health, independent

medical evaluations, and workers’ compensation cases differently from medical records created by personal health care

providers. However, the physician practicing occupational medicine is advised not to make such distinctions in practice

without clear legal guidance or permission from the proper parties. Confidential medical information should be treated

the same as in situations where there is a clear physician-patient relationship unless there is a valid legal reason or

consent to do otherwise, a health and safety risk to the client or others, or evidence of a criminal act.4

2. Physicians should make all reasonable efforts to obtain the patient’s consent before disclosing all or any portion of his or

her medical record. If disclosure is legally required or consent is not legally required, the patient should be notified of

the impending disclosure unless such notification is impossible or there are overriding patient or public health concerns.

3. Physicians should recognize a patient’s consent-for-disclosure only if said consent is both informed and voluntary. The

consent should specify the nature of the information to be released, the purposes for its release, the person or persons to

whom it may be released, the time period for which the consent remains in effect, and acknowledgement statement that

the patient may rescind consent at anytime. The consent must be signed by the employee or his or her legal guardian, or

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if the employee is deceased, by his or her personal representative.

4. Whenever physicians are aware that the results of an examination or records of a visit may be shared with a third party

(e.g., in the case of an independent medical examination the information will be shared with an insurer and/or attorneys

representing the insurer and the claimant), it is incumbent upon the physician to properly notify the examinee prior to

gathering historical or clinical data as to the nature of the evaluation, what information will be collected, and to whom it

will be transmitted. The physician should not state or imply that any records will be kept confidential if this cannot be

assured. The physician performing independent medical examinations should be knowledgeable of statutes and/or

regulations controlling the distribution of their reports. It is appropriate that the insurer and physician share with the

claimant the nature of information to be included and the distribution of the report. Sensitive confidential medical

information that is not relevant to the claim should not be included in the report.

5. Although all personal health information should be presumed to be confidential, physicians should recognize that certain

types of health information are particularly sensitive such as sexual orientation, HIV/AIDS status,5 drug and alcohol

treatment, past history of physical or sexual abuse, treatment for sexually transmitted diseases, and genetic

information.6 Physicians should be aware that a general consent for disclosure of medical records cannot be presumed to

be sufficient in these situations and that specific written consent for release of such information must be obtained. This

information should only be disclosed in compliance with U.S. federal and state law and similar laws of other countries

where occupational physicians work. Because it is often possible to infer sensitive information from other parts of the

medical record, such as the medication history, the physician should treat such information in the same manner as

explicitly sensitive information.

6. Physicians should release only the portion of a record covered by a release and not disclose the entire medical record

unless indicated and permitted by the patient. Forwarding records that have been obtained from other medical providers

is appropriate when that information is relevant to the specific problem in question and permitted.

7. Physicians should develop a written policy for the treatment of medical records in their offices, clinics, or workplaces.

The policy should address such issues as where, and for how long the records are stored; the security of medical records

including computer databases; what happens in the event of employee resignation, layoff, termination, job transfer, or

closure and/or merger of employer; and the mechanisms of employee access and consent for disclosure.7

8. Physicians should make reasonable efforts to ensure that those under their supervision act with due care regarding the

confidentiality of medical records, and act to educate fellow health care providers and office support staff regarding the

confidentiality of medical information. Physicians should encourage the confidential treatment of medical information by

their clients and in their organization by colleagues in other departments such as human resources or benefits who may

have access to such data.

9. Physicians should disclose their professional opinion to both the employer and the employee when the employee has

undergone a medical assessment for fitness to perform a specific job. However, the physician should not provide the

employer with specific medical details or diagnoses unless the employee has given his or her permission. Additionally,

physicians should not disclose without permission any “non-medical” information gained in the context of a

physician/patient relationship that could adversely affect the employee. Exceptions include health and safety concerns or

knowledge of unlawful activity.

10. Physicians should notify employees of their right to obtain access to their medical records and to request correction of

any inaccuracies therein.8

11. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and

recommended accommodations. First aid and safety personnel may be informed, when appropriate, if a condition might

require emergency treatment, in which case the employee should be informed.

12. Physicians should be a source of professional, unbiased, and expert opinion in the workers’ compensation or court systems

and should only disclose medical information that is relevant and necessary to the claim or suit. When release of medical

information is authorized or required by specific regulation, only the necessary and relevant information should be

released.

13. Physicians should exercise caution whenever presented with a request or subpoena for medical records that does not

include a written authorization for release by the employee, or when the records requested contain information about

HIV status, drug and alcohol treatment, or genetic information. It may be appropriate to seek legal advice in these

situations.

14. Physicians should withdraw or decline services when faced with an irresolvable ethical conflict or an unethical request by

a client or employer. In many instances, the medical record will be the property of an employer. This ownership does not

abrogate any of these principles. Each employer that owns medical records should designate a custodian of the records.

Access by employer officials (e.g., employee relations, legal counsel) should proceed via the same process as requests by

those outside the employer through the custodian. Physicians should consider inquiring about the employer’s practices

regarding medical records prior to employment or contractual services.

Because OEM physicians work in a wide variety of practice situations and must respect the laws and customs of many

countries, physicians have an ethical duty to become familiar with laws and regulation applicable to their practice. The

College believes that all employee health and medical records should be treated as confidential by the employer and

provider; however, occupational medicine physicians are in a unique position and must carefully balance the interests of all

parties and society as a whole. These recommendations are intended to serve as guidance for OEM physicians in their

relationships with their patients and the other individuals that they serve including employers.

References 

1. Rischitelli DG. The confidentiality of medical information in the workplace. J Occup Environ Med. 1995;37(5):583-93. 

2. Teichman R, Wester MS. Code of ethical conduct. J Occup Med. 1994;29(1):27-30. 

3. ACOEM Code of Ethics. 2010. Available at www.acoem.org/codeofconduct.aspx. 

4. American Medical Association Council on Ethical and Judicial Affairs. Code of Medical Ethics. Current Opinions with

Annotations. Chicago, Ill: AMA, 2006. 

5. Americans with Disabilities Act, 42 USC §12112(D)(3)(B) (1990). 

6. ACOEM Task Force on Genetic Screening in the Workplace. Position statement. Genetic screening in the workplace. J Occup

Environ Med. 2010;52(7):763. Available at www.acoem/org/GeneticScreening.aspx. 

7. Health Insurance Portability and Accountability Act of 1996 (HIPAA). Federal Register. 65 FR 82462. December 28, 2000.

Available at www.hhs.gov/ocr/hipaa/finalreg.html. 

8. OSHA. Access to Employee Exposure and Medical Records Standard. 19 CFR § 1910.20. 

This statement was reviewed and revised by the ACOEM Committee on Ethical Practice in Occupational and Environmental

Medicine. Committee members are Drs. David Lukcso, chair, Paul Brandt-Rauf, and William W. Greaves. This statement was

peer-reviewed by Dr. Robert Orford, and approved by the ACOEM Board of Directors on July 28, 2012. This statement updates

ACOEM’s 2008 statement. 

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Founded in 1916, ACOEM is the nation's largest medical society dedicated to promoting the health of workers through preventive medicine, clinical care, research, and education. A dynamic group

of physicians encompassing specialists in a variety of medical practices is united via the College to develop positions and policies on vital issues relevant to the practice of preventive medicine both

within and outside of the workplace.

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UNITED STATES

DEPARTMENT OF LABOR

July 15, 2014

MEMORANDUM FOR: REGIONAL ADMINISTRATORS

THROUGH: DOROTHY DOUGHERTY

Deputy Assistant Secretary

FROM: THOMAS GALASSI, DIRECTOR

DIRECTORATE OF ENFORCEMENT PROGRAMS

SUBJECT: Policy Background on the Temporary Worker Initiative

On April 29, 2013, OSHA launched the Temporary Worker Initiative (TWI) in order to help prevent work-related injuries and illnesses among temporary workers.

The purpose of this initiative is to increase OSHA's focus on temporary workers in order to highlight employers' responsibilities to ensure these workers are

protected from workplace hazards.

As detailed in the documents posted on our website (www.osha.gov/temp_workers), temporary workers are at increased risk of work-related injury and illness. In

recent months, OSHA has received and investigated many reports of temporary workers suffering serious or fatal injuries, some in their first days on the job.

Numerous studies have shown that new workers are at greatly increased risk for work-related injury, and most temporary workers will be "new" workers multiple

times a year. Furthermore, as the American economy and workforce are changing, the use of temporary workers is increasing in many sectors of the economy.

OSHA compliance officers regularly encounter worksites with temporary workers. This memorandum is being sent to remind OSHA field staff of the Agency's long

standing general enforcement policy regarding temporary workers. Additional enforcement and compliance guidance will be issued in the near future.

For the purposes of the TWI, "temporary workers" are workers hired and paid by a staffing agency and supplied to a host employer to perform work on a

temporary basis. In general, OSHA will consider the staffing agency and host employer to be "joint employers" of the worker in this situation. Joint employment is

a legal concept recognizing that, in some situations, the key attributes of the traditional employer-employee relationship are shared by two or more employers in

such a manner that they each bear responsibility for compliance with statutory and regulatory requirements. For example, the staffing agency often controls a

worker's paycheck and selects the host employer location where the worker will be sent. The host employer, in turn, assigns the particular work to be done each

day and controls operations in the physical workplace.

As joint employers, both the host employer and the staffing agency have responsibilities for protecting the safety and health of the temporary worker under the

OSH Act. In assessing compliance in any inspection where temporary workers are encountered, compliance officers must consider whether each employer has met

its responsibility.

Identifying Employer Responsibilities. It is a fundamental principle that temporary workers are entitled to the same protections under the OSH Act as all

other covered workers. The staffing agency and host employer must work together to ensure that OSH Act requirements are fully met and that the temporary

worker is provided a safe workplace. This requires effective initial and follow-up communication and a common understanding of the division of responsibilities for

safety and health. OSHA compliance officers should review any written contract(s) between the staffing agency and the host employer and determine if it

addresses responsibilities for employee safety and health. It should be understood, however, that the contract's allocation of responsibilities may not discharge

either party's obligations under the Act.

The extent of the obligations each employer has will vary depending on workplace conditions and may be clarified by their agreement or contract. Their duties will

sometimes overlap. The staffing agency or the host may be particularly well suited to ensure compliance with a particular requirement, and may assume primary

responsibility for it. For example, staffing agencies might provide general safety and health training applicable to many different occupational settings, while host

employers provide specific training tailored to the particular hazards at their workplaces. If the staffing agency has a long-term, continuing relationship with the

temporary worker, it may be best positioned to comply with requirements such as audiometric testing or medical surveillance. The host employer, in turn, would be

the primary party responsible for complying with workplace-specific standards relating to machine guarding, exposure to noise or toxic substances, and other

workplace-specific safety and health requirements.

As noted above, although the host employer typically has primary responsibility for determining the hazards in their workplace and complying with worksite-specific

requirements, the staffing agency also has a duty. Staffing agencies must ensure they are not sending workers to workplaces with hazards from which they are not

protected or on which they have not been trained. Agencies need not become experts on all potential hazards at the host's workplace, but nevertheless have a

duty to diligently inquire and determine what, if any, safety and health hazards are present at their client's workplaces. For example, if a staffing agency is

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supplying workers to a host where they will be working in a manufacturing setting using potentially hazardous equipment, the agency should take reasonable steps

to identify any hazards present, to ensure that workers will receive the required training, protective equipment, and other safeguards, and then later verify that the

protections are in place.

Prior to accepting a new host employer as a client, or a new project from a current client, both parties should jointly review the task assignments and any job

hazard analyses in order to identify and eliminate potential safety and health dangers and provide the necessary protections and training for workers. If

information becomes available that questions the adequacy of the host employer's job hazard analyses, such as injury and illness reports, safety and health

complaints or OSHA enforcement history, the staffing agency should make efforts to address those issues with the host employer to ensure that existing hazards

are properly assessed and abated to protect the workers. In assessing worksite hazards, host employers typically have the safety and health knowledge and

control of worksite operations. However, the staffing agency may itself perform, if feasible, an inspection of the workplace to conduct its own hazard assessment

or to ensure implementation of the host employer's safety and health obligations.

It is incumbent on both employers to communicate with each other when a worker is injured, and to determine what measures are to be implemented to prevent

future injuries from occurring. Communication between the host employer and staffing agency is of fundamental importance in this regard. For example, if a

temporary worker is injured at a host employer worksite, the host employer should inform the staffing agency of the injury, and the staffing agency, in turn, should

follow-up about preventive actions taken. Similarly, if a staffing agency learns of a temporary worker's injury (through, for example, the filing of a workers'

compensation claim), the staffing agency should inform the host employer to help ensure that preventive measures are taken before additional workers are

injured.

When investigations reveal a temporary worker exposed to a violative condition, and the worker is considered to be employed by both a staffing agency and a host

employer, OSHA will consider issuing citations to either or both of the employers, depending on the specific facts of the case. This will require Area Offices to make

a careful assessment of whether both employers have fulfilled their respective compliance responsibilities in each individual case. These inspections are considered

high priority and early consultation between OSHA and SOL is essential to facilitate case development.

Temporary workers have the same rights and protections against retaliation as all other covered workers. Given the importance of communication between

employers about the presence of hazards, it is also incumbent on both employers to take necessary steps to ensure that temporary workers are aware of their

rights and responsibilities under the OSH Act. Section 11(c) of the OSH Act protects temporary workers who report injuries and illnesses or complain to their

employer, OSHA, or other government agencies about unsafe or unhealthful working conditions in the workplace. Temporary workers have the right to report

injuries or illnesses or complain to both the host employer and the staffing agency without fear of retribution. Both the staffing agency and the host employer

should inform temporary employees how to report injuries and illnesses and include training on the employee's right to report workplace safety concerns. If the

CSHO finds evidence of retaliation by either the host employer or the staffing agency for reporting an injury or illness, the CSHO will inform the worker of his/her

right to file a retaliation complaint with OSHA.

When to Open an Inspection with the Staffing Agency. When a temporary worker is exposed to a violation, the CSHO should make inquiries into the staffing

agency's actual or constructive knowledge of the worksite's hazards - whether the staffing agency knew, or with the exercise of reasonable diligence, could have

known about the hazards. The CSHO should review such factors as the terms of the staffing agency-host employer contract, the interaction and communication

between the staffing agency and the host employer, the staffing agency's contact with its temporary workers, whether those workers have had any complaints or

concerns and whether they have made those concerns known to the employers (and if not, why not).

As noted above, the staffing agency has a basic duty to inquire into the conditions at the host worksite. The decision to open an inspection with the staffing

agency is not dependent upon whether or not a staffing agency management representative is on-site. If a temporary worker is or could be exposed to a serious

hazard or if the staffing agency does not appear to have taken any actions to learn of the conditions at the host's worksite, then the CSHO should initiate an

inspection with the staffing agency. In all other instances, Area Directors may decide, based upon the evidence found during the inquiries, whether to open an

inspection with the staffing agency.

Resources. Determining the responsibilities of host employers and staffing agencies will be highly fact-specific. To assist the field in such cases, the Directorate of

Enforcement Programs is preparing a series of bulletins on various aspects of the TWI. The first bulletin addresses recordkeeping requirements and can be found

on our Temporary Worker webpage. The second bulletin will address whistleblower protection rights. Other topics may include personal protective equipment,

training, hazard communication, duty-to-inquire, hearing conservation programs, exposures to heat, and powered industrial trucks. A compliance directive is also

planned.

In addition, a large number of resources devoted to the TWI have been assembled on OSHA's internal website. These include existing interpretive guidance and

compliance directives related to temporary worker issues on recordkeeping, hazard communication, bloodborne pathogens, and other standards. More resources

will be added in the future.

Conclusion. Too often in recent months, it has been OSHA's sad duty to investigate fatalities and injuries involving temporary workers who were not given the

necessary safety and health protections required under the Act. In the TWI, we are attempting to ensure that all employers, whether host or staffing agency,

individually and collaboratively, fulfill their duties to their workers, so that at the end of the shift of every work day, all temporary workers in the United States can

return home safely.

As noted above, further guidance in the form of bulletins and a compliance directive will be forthcoming. Should you have any further questions, please contact

Mary Lynn in the Office of Chemical Process Safety and Enforcement Initiatives, at lynn.mary@dol.gov.

cc: Jim Maddux, Director, DOC

Doug Kalinowski, DCSP

1 See OSHA New Release 13-800-NAT, OSHA launches initiative to protect temporary workers, April 29, 2013

UNITED STATES

DEPARTMENT OF LABOR
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Book 2 of 3 Books 

Pages 16285–16890 

Vol. 81 Friday, 

No. 58 March 25, 2016 

Part II 

Department of Labor 

Occupational Safety and Health Administration 

29 CFR Parts 1910, 1915, and 1926 

Occupational Exposure to Respirable Crystalline Silica; Final Rule 


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Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Rules and Regulations 16831 

to respirable crystalline silica, and any 

referral for specialist examination 

directly to the employee; and (2) an 

opinion focused primarily on any 

recommended limitations on respirator 

use, and with the employee’s consent, 

recommended limitations on the 

employee’s exposure to respirable 

crystalline silica and referral to a 

specialist. The ensuing two subsections 

will then discuss the specific 

requirements and the record comments 

and testimony relating to those specific 

requirements. 

OSHA proposed that the employer 

obtain from the PLHCP a written 

medical opinion containing: (1) A 

description of the employee’s health 

condition as it relates to exposure to 

respirable crystalline silica, including 

any conditions that would put the 

employee at increased risk of material 

impairment of health from further 

exposure to respirable crystalline silica; 

(2) recommended limitations on the 

employee’s exposure to respirable 

crystalline silica or use of PPE, such as 

respirators; (3) a statement that the 

employee should be examined by a 

pulmonary disease specialist if the Xray is classified as 1/0 or higher by the 

B reader, or if referral to a pulmonary 

disease specialist is otherwise deemed 

appropriate by the PLHCP; and (4) a 

statement that the PLHCP explained to 

the employee the medical examination 

results, including conditions related to 

respirable crystalline silica exposure 

that require further evaluation or 

treatment and any recommendations 

related to use of protective clothing or 

equipment. The proposed rule would 

also have required the employer to 

ensure that the PLHCP did not include 

findings unrelated to respirable 

crystalline silica exposure in the written 

medical opinion provided to the 

employer or otherwise reveal such 

findings to the employer. OSHA raised 

the contents of the PLHCP’s written 

medical opinion, including privacy 

concerns, as an issue in the preamble of 

the NPRM in Question 71 in the 

‘‘Issues’’ section (78 FR at 56290). 

OSHA received a number of 

comments on these provisions. The 

majority of these comments related to 

the proposed contents of the PLHCP’s 

written medical opinion and its 

transmission to the employer. For 

example, Dr. Laura Welch expressed 

concern that the provision that would 

have required the PLHCP to disclose ‘‘a 

medical condition that puts him or her 

at risk of material impairment to health 

from exposure to silica’’ could be read 

to require disclosure of the employee’s 

medical diagnosis (Document ID 3581, 

Tr. 1580). Dr. Steven Markowitz, 

physician and director of the Center for 

Biology of Natural Systems at Queens 

College, representing USW, explained: 

So, for example, if I were the examining 

healthcare provider and I saw an employee, 

and he had what I identified as idiopathic 

pulmonary fibrosis, which is diffuse scarring 

of the lungs with an unknown cause, in this 

case, not silica, is that information that I 

would need to turn over to the employer 

because further exposure to silica might 

impair that person’s health or not? Or what 

if the worker has emphysema, which is a 

silica-related condition, and the provider 

believes that that emphysema is not due to 

silica exposure but to the employee’s longtime smoking history. Is that information that 

the healthcare provider is supposed to turn 

over to the employer? It isn’t at all clear 

(Document ID 3584, Tr. 2518–2519). 

Some commenters offered suggestions 

to address privacy concerns regarding 

the content of the proposed PLHCP’s 

written medical opinion for the 

employer and the proposed requirement 

that the opinion be given to the 

employer instead of the employee. One 

suggestion advocated by UAW, 

LHSFNA, AFSCME, AFL–CIO, and 

BCTD was for OSHA to use a model 

based on the black lung rule for coal 

miners (Document ID 2282, Attachment 

3, pp. 20–21; 3589, Tr. 4207; 4203, p. 6; 

4204, p. 88; 4223, p. 134). Under the 

coal miner regulations, miners receive 

the medical information and employers 

are prohibited from requiring that 

information from miners (30 CFR 90.3). 

Commenters including BlueGreen 

Alliance, CWA, USW, and Collegium 

Ramazzini also urged OSHA to require 

that findings from medical surveillance 

only be given to employers upon 

authorization by the employee 

(Document ID 2176, p. 2; 2240, pp. 3– 

4; 2336, p. 12; 3541, p. 13). UAW, AFL– 

CIO, and BCTD referred OSHA to 

ACOEM’s recommendations for 

workplace confidentiality of medical 

information (Document ID 2282, 

Attachment 3, p. 20; 3578, Tr. 929; 

3581, Tr. 1579–1580). The ACOEM 

guidelines state: 

Physicians should disclose their 

professional opinion to both the employer 

and the employee when the employee has 

undergone a medical assessment for fitness to 

perform a specific job. However, the 

physician should not provide the employer 

with specific medical details or diagnoses 

unless the employee has given his or her 

permission (Document ID 3622, p. 2). 

Exceptions to this recommendation 

listed under the ACOEM guidelines 

include health and safety concerns. 

Collegium Ramazzini, BCTD, USW, and 

BAC argued that providing an employer 

with information about an employee’s 

health status violates an employee’s 

privacy and is not consistent with 

societal views reflected in laws, such as 

the Health Insurance Portability and 

Accountability Act (HIPAA) (Document 

ID 3541, p. 13; 3581, Tr. 1578–1579; 

3584, Tr. 2519; 4219, p. 31). 

Although HIPAA regulations allow 

medical providers to provide medical 

information to employers for the 

purpose of complying with OSHA 

standards (Document ID 4214, p. 7), 

OSHA has accounted for stakeholder 

privacy concerns in devising the 

medical disclosure requirements in the 

rule. OSHA understands that the need 

to inform employers about a PLHCP’s 

recommendations on work limitations 

associated with an employee’s exposure 

to respirable crystalline silica must be 

balanced against the employee’s privacy 

interests. As discussed in further detail 

below, OSHA finds it appropriate to 

distinguish between the PLHCP’s 

recommendations and the underlying 

medical reasons for those 

recommendations. In doing so, OSHA 

intends for the PLHCP to limit 

disclosure to the employer to what the 

employer needs to know to protect the 

employee, which does not include an 

employee’s diagnosis. Contrary to some 

of the comments, it was not OSHA’s 

intent, either in the proposed rule or in 

earlier standards that require 

information on an employee’s medical 

or health condition, to transmit 

diagnostic information to the employer; 

OSHA intended for the PLHCP merely 

to convey whether or not the employee 

is at increased risk from exposure to 

respirable crystalline silica (or other 

workplace hazards in other standards) 

based on any medical condition, 

whether caused by such exposure or 

not. In re-evaluating how to express this 

intent, however, OSHA concludes that 

the employer primarily needs to know 

about any recommended limitations 

without conveying the medical reasons 

for the limitations. Thus, in response to 

the weight of opinion in this rulemaking 

record and to evolving notions about 

where the balance between preventive 

health policy and patient privacy is 

properly struck, OSHA is taking a more 

privacy- and consent-based approach 

regarding the contents of the PLHCP’s 

written medical opinion for the 

employer compared to the proposed 

requirements and earlier OSHA 

standards. These changes, which are 

reflected in paragraph (i)(6) of the 

standard for general industry and 

maritime (paragraph (h)(6) of the 

standard for construction), and the 

comments that led to these changes, are 

more fully discussed below. 

Reinforcing the privacy concerns, 

various stakeholders, including labor 

unions, physicians, and employees, 


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16832 Federal Register / Vol. 81, No. 58 / Friday, March 25, 2016 / Rules and Regulations 

were also concerned that employees’ 

current or future employment might be 

jeopardized if medical information is 

reported to employers (e.g., Document 

ID 2282, Attachment 3, p. 20; 3581, Tr. 

1582; 3583, Tr. 2470–2471; 3585, Tr. 

3053–3054; 3586, Tr. 3245; 3589, Tr. 

4227–4228, 4294–4295; 4203, pp. 6–7; 

4214, pp. 7–8). The same concerns were 

expressed by Sarah Coyne, a painter and 

Health and Safety Director from the 

International Union of Painters and 

Allied Trades, who testified that many 

of her fellow union members who have 

silicosis refused to testify at the silica 

hearings because they feared they would 

lose their jobs if their employers found 

out they were ill (Document ID 3581, Tr. 

1613–14). Dr. L. Christine Oliver 

testified that her patients do not want 

medical information reported to 

employers, and Dr. James Melius stated 

that LHSFNA members are leery of 

medical surveillance because they fear 

losing their jobs (Document ID 3588, Tr. 

3881–3882; 3589, Tr. 4228). Deven 

Johnson, cement mason, described 

employees hiding injuries from 

supervisors on jobsites for fear of being 

blacklisted, and said that: 

The same is true with occupational 

illnesses, that the last thing that a worker 

wants is to have any information that he’s 

somehow compromised because, even 

though we want to think the best of the 

employer, that somebody wouldn’t take 

action against that individual, we know for 

a fact that it happens. It’s happened to our 

membership (Document ID 3581, Tr. 1656). 

Industry representatives indirectly 

confirmed that discrimination based on 

medical results was possible. For 

example, CISC noted that some 

employers might refuse to hire an 

employee with silicosis because they 

might have to offer workers’ 

compensation or be held liable if the 

disease progresses (Document ID 4217, 

pp. 22–23). 

Evidence in the record demonstrates 

that a likely outcome of employees’ 

reluctance to let employers know about 

their health status is refusal to 

participate in medical surveillance. For 

example, Dr. Rosemary Sokas stated that 

employees who lack job security would 

likely avoid medical surveillance if the 

employer receives the results 

(Document ID 3577, Tr. 819–820). In 

discussing the Coal Workers’ Health 

Surveillance Program, Dr. David 

Weissman stated that maintaining 

confidentiality is critical because: 

One of the biggest reasons in focus groups 

that miners have given for not participating 

in surveillance is fear of their medical 

information being shared without their 

permission (Document ID 3579, Tr. 169). 

When asked if employees would 

participate in medical surveillance that 

lacked both employee confidentiality 

and anti-retaliation and discrimination 

protection, employees Sarah Coyne, 

Deven Johnson, and Dale McNabb stated 

that they would not (Document ID 3581, 

Tr. 1657; 3585, Tr. 3053–3054). BAC 

and BCTD emphasized that employees 

must choose to participate in medical 

surveillance in order for it to be 

successful (Document ID 4219, p. 31; 

4223, p. 131). 

Industry groups, such as OSCO 

Industries and NAHB, commented that 

they or employers from their member 

companies are reluctant to handle or 

maintain confidential medical 

information (Document ID 1992, p. 12; 

2296, p. 32). NAHB indicated: 

Members have expressed strong concerns 

that much of [the medical information], if not 

all, would be covered by privacy laws and 

should be between a doctor and patient. . . . 

Moreover, the PLHCP should provide a copy 

of the written medical opinion to the 

employee directly, not the employer, once it 

is written (Document ID 2296, pp. 31–32). 

However, other industry groups 

asserted that employers should receive 

detailed information from medical 

surveillance. In particular, NISA argued 

that reporting medical surveillance 

findings to employers would facilitate 

epidemiological studies to better 

understand hazards and the 

effectiveness of a new standard 

(Document ID 4208, p. 14). 

OSHA agrees that epidemiology 

studies are important; indeed its health 

effects and significant risk findings in 

this rule are overwhelmingly based on 

epidemiological studies. However, as 

noted above, it was never OSHA’s intent 

for the PLHCP’s written medical 

opinion on respirable crystalline silica 

to contain specific diagnoses or detailed 

findings that might be useful for an 

epidemiology study. As noted in the 

summary and explanation of 

Recordkeeping, OSHA’s access to 

employee exposure and medical records 

standard (29 CFR 1910.1020) requires 

employers to ensure that most employee 

medical records are retained for the 

duration of employment plus 30 years 

for employees employed more than one 

year. Such records obtained through 

appropriate legal means, and with 

personal identifying information 

omitted or masked, would be a possible 

avenue for conducting epidemiology 

studies. 

CISC also noted that in past 

standards, the purpose of medical 

surveillance was to improve health 

practices by allowing employers to 

understand effects of hazards and, 

therefore, make changes to the worksite, 

such as implementing controls or 

removing employees from exposure 

(Document ID 4217, p. 24). Attorney 

Brad Hammock, representing CISC at 

the public hearing, stated that if OSHA 

expects employers to make placement 

decisions based on health outcomes and 

exposure, then there would be some 

value in an employer receiving the 

PLHCP’s opinion. However, Mr. 

Hammock further explained that if the 

purpose of surveillance is simply to 

educate employees about their health 

situation, then there would be arguably 

little value in the employer receiving 

the opinion (Document ID 3580, Tr. 

1466–1467). Other commenters, 

including ACOEM, AOEC, and NISA, 

also noted the importance of medical 

surveillance for identifying adverse 

health effects among employees in order 

to make workplace changes or evaluate 

the effectiveness of regulations or 

workplace programs (Document ID 

2080, pp. 9–10; 3577, Tr. 784; 4208, pp. 

13, 16–17). Andrew O’Brien testified 

that if employers are not allowed to see 

medical findings, the first time they are 

made aware of a problem is when they 

receive a letter from the compensation 

system. Mr. O’Brien stated: 

Without access to that data, you can’t . . . 

potentially see disease beginning and take 

preventative action to prevent it from 

actually having a negative health effect 

(Document ID 3577, Tr. 614). 

In contrast to those views, USW 

questioned the value in providing 

employers with the PHLCP’s medical 

opinion. It stated: 

Exactly what corrections in the workplace 

will the employer make based on newfound 

knowledge that one of his workers has a 

silica-related condition? Silicosis occurs 15 

or more years following onset of exposure, so 

that today’s silicosis is due to exposure that 

likely occurred decades ago. (Exceptions are 

acute and accelerated silicosis, which are 

rare and are not expected to occur at the 

recommended PEL.) What inference is the 

employer supposed to make about the 

magnitude or effect of current exposures 

under these circumstances? Indeed, to make 

sense of the issue, the employer would have 

to know about the worker’s prior silica 

exposures, quite often at different 

workplaces. But the employer and, quite 

likely, even the worker are unlikely to have 

high quality data on exposures to silica that 

occurred decades ago. In the absence of such 

information, it is unclear how an employer 

can properly interpret current exposures as 

causing silicosis. By contrast, the best 

information on current exposures derives 

from current exposure monitoring, and the 

notion that documenting silicosis can 

somehow provide useful information about 

current exposures above and beyond what 

proper exposure monitoring is ill-conceived 

(Document ID 4214, p. 8). 


ebenthall on DSK6SPTVN1PROD with RULES2
5/14/2018 Temporary Workers | Occupational Safety and Health Administration

https://www.osha.gov/temp_workers/ 1/2

UNITED STATES

DEPARTMENT OF LABOR

Protecting Temporary Workers

Employer Responsibilities to Protect Temporary Workers*

To ensure that there is a clear understanding of each employer's role in protecting employees, OSHA

recommends that the temporary staffing agency and the host employer set out their respective

responsibilities for compliance with applicable OSHA standards in their contract. Including such terms in a

contract will ensure that each employer complies with all relevant regulatory requirements, thereby

avoiding confusion as to the employer's obligations.

Joint Responsibility

While the extent of responsibility under the law of staffing agencies and host employers is dependent on

the specific facts of each case, staffing agencies and host employers are jointly responsible for maintaining

a safe work environment for temporary workers - including, for example, ensuring that OSHA's training,

hazard communication, and recordkeeping requirements are fulfilled.

OSHA could hold both the host and temporary employers responsible for the violative condition(s) - and

that can include lack of adequate training regarding workplace hazards. Temporary staffing agencies and

host employers share control over the worker, and are therefore jointly responsible for temporary workers'

safety and health.

OSHA has concerns that some employers may use temporary workers as a way to avoid meeting all their

compliance obligations under the OSH Act and other worker protection laws; that temporary workers get

placed in a variety of jobs, including the most hazardous jobs; that temporary workers are more vulnerable

to workplace safety and health hazards and retaliation than workers in traditional employment

relationships; that temporary workers are often not given adequate safety and health training or

explanations of their duties by either the temporary staffing agency or the host employer. Therefore, it is

essential that both employers comply with all relevant OSHA requirements.

Both Host Employers and Staffing Agencies Have Roles

Both host employers and staffing agencies have roles in complying with workplace health and safety

requirements and they share responsibility for ensuring worker safety and health.

A key concept is that each employer should consider the hazards it is in a position to prevent and correct,

and in a position to comply with OSHA standards. For example: staffing agencies might provide general

safety and health training, and host employers provide specific training tailored to the particular workplace

equipment/hazards.

The key is communication between the agency and the host to ensure that the necessary protections

are provided.

Staffing agencies have a duty to inquire into the conditions of their workers' assigned workplaces. They

must ensure that they are sending workers to a safe workplace.

Ignorance of hazards is not an excuse.

Staffing agencies need not become experts on specific workplace hazards, but they should determine

what conditions exist at their client (host) agencies, what hazards may be encountered, and how best

to ensure protection for the temporary workers.

Worker Rights

Highlights

Recommended Practices: Protecting

Temporary Workers

Policy Background on the Temporary

Worker Initiative

Temporary Worker Initiative (TWI) Bulletin

No. 1 - Injury and Illness Recordkeeping

Requirements

Temporary Worker Initiative (TWI) Bulletin

No. 2 – Personal Protective Equipment

Temporary Worker Initiative (TWI) Bulletin

No. 3 – Whistleblower Protection Rights

Temporary Worker Initiative (TWI) Bulletin

No. 4 - Safety and Health Training

Temporary Worker Initiative (TWI) Bulletin

No. 5 - Hazard Communication

Temporary Worker Initiative Bulletin No. 6 –

Bloodborne Pathogens

Temporary Worker Initiative Bulletin No. 7 -

Powered Industrial Truck Training

Temporary Workers' Rights Pamphlet

News Releases

November 9, 2017 [Region 1 News

Release] U.S. Department of Labor Cites

Lynnway Auto Auction For Exposing

Employees to Numerous Hazards

OSHA English | Spanish



A TO Z INDEX

Find it in OSHA

ABOUT OSHA WORKERS EMPLOYERS REGULATIONS ENFORCEMENT TOPICS NEWS & PUBLICATIONS DATA TRAINING
5/14/2018 Temporary Workers | Occupational Safety and Health Administration

https://www.osha.gov/temp_workers/ 2/2

The staffing agency has the duty to inquire and verify that the host has fulfilled its responsibilities for a

safe workplace.

And, just as important: Host employers must treat temporary workers like any other workers in terms

of training and safety and health protections.

How can OSHA help?

Workers have a right to a safe workplace. If you think your job is unsafe or you have questions,

contact OSHA at 1-800-321-OSHA (6742). It's confidential. We can help. For other valuable worker

protection information, such as Workers' Rights, Employer Responsibilities and other services

OSHA offers, visit OSHA's Workers' page.

OSHA also provides help to employers. OSHA's On-site Consultation Program offers free and

confidential advice to small and medium-sized businesses in all states across the country, with

priority given to high-hazard worksites. For more information or for additional compliance

assistance, contact OSHA at 1‐800‐321‐OSHA (6742).

October 24, 2017 [Region 1 News

Release] U.S. Department of Labor and

Massachusetts Packaging Company and

Staffing Agencies Reach Agreements to

Enhance Workplace Safeguards

Read More....

* From OSHA's webinar with the American Staffing Association

UNITED STATES

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

200 Constitution Ave., NW, 

Washington, DC 20210

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Using the Heat Index: A Guide for Employers

1

This guidance is available online at http://osha.gov/SLTC/heatillness/heat_index/.

Heat Index Risk Level 3URWHFWLYH 0HDVXUHV

Less than 91°F Lower 

(Caution)

Basic heat safety and 

planning

91° to 103°F Moderate Implement 

precautions and 

heighten awareness

103° to 115°F High Additional

precautions to protect 

workers

Greater than

115°F

Very High to

Extreme

Triggers even more

aggressive protective 

measures

Introduction

Outdoor workers who are exposed to hot and humid conditions are at risk of heat-related illness. 

The risk of heat-related illness becomes greater as the weather gets hotter and more humid. 

This situation is particularly serious when hot weather arrives suddenly early in the season, 

before workers have had a chance to adapt to warm weather.

For people working outdoors in hot weather, both air temperature and humidity affect how hot 

they feel. The "heat index" is a single value that takes both temperature and humidity into 

account. The higher the heat index, the hotter the weather feels, since sweat does not readily 

evaporate and cool the skin. The heat index is a better measure than air temperature alone for 

estimating the risk to workers from environmental heat sources.

Heat-related illness can be 

prevented.

OSHA does not have a specific 

standard that covers working in hot 

environments. Nonetheless, under 

the OSH Act, employers have a 

duty to protect workers from 

recognized serious hazards in the 

workplace, including heat-related 

hazards. This guide helps 

employers and worksite supervisors 

prepare and implement hot weather 

plans. It explains how to use the

heat index to determine when extra precautions are needed at a worksite to protect workers 

from environmental contributions to heat-related illness. Workers performing strenuous activity,

workers using heavy or non-breathable protective clothing, and workers who are new to an

outdoor job need additional precautions beyond those warranted by heat index alone.

Workers new to outdoor jobs are generally most at 

risk for heat-related illnesses. For example, 

Cal/OSHA investigated 25 incidents of heat-related 

illness in 2005. In almost half of the cases, the 

worker involved was on their first day of work and 

in 80% of the cases the worker involved had only 

been on the job for four or fewer days. That's why 

it's important to gradually increase the workload or 

allow more frequent breaks to help new workers 

and those returning to a job after time away build 

up a tolerance for hot conditions. Make sure that 

workers understand the risks and are 

“acclimatized”.

Two primary sources of heat 

for workers: Workers become 

overheated from two primary 

sources: (1) the environmental 

conditions in which they work and

(2) the internal heat generated by 

physical labor. Heat-related

illnesses occur when the body is

not able to lose enough heat to 

balance the heat generated by

physical work and external heat

sources. Weather conditions are 

the primary external heat sources 

for outdoor workers.
2

This guidance is available online at http://osha.gov/SLTC/heatillness/heat_index/.

Outdoor workers include any workers who spend a substantial portion of the shift 

outdoors. Examples include construction workers, agricultural workers, baggage handlers, 

electrical power transmission and control workers, and landscaping and yard maintenance 

workers. These workers are at risk of heat-related illness when the heat index is high. 

Additional risk factors are listed below. These must be taken into consideration even when 

the heat index is lower.

 Work in direct sunlight-adds up to 15 degrees to the heat index.

 Perform prolonged or strenuous work

 Wear heavy protective clothing or impermeable suits

*This guidance is advisory in nature and informational in content. It is not a standard or regulation, and it neither 

creates new legal obligations nor alters existing obligations created by OSHA standards or the Occupational Safety 

and Health Act. Pursuant to the OSH Act, employers must comply with safety and health standards and regulations 

issued and enforced either by OSHA or by an OSHA-approved State Plan. In addition, the Act’s General Duty 

Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized 

hazards likely to cause death or serious physical harm.
1-800-321-OSHA (6742) • www.osha.gov 1 1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh

RecommendedPractices

OSHA • NIOSH

Protecting Temporary Workers

Workers employed through staffing 

agencies are generally called temporary or 

supplied workers. For the purposes of these 

recommended practices, “temporary workers” 

are those supplied to a host employer and 

paid by a staffing agency, whether or not the 

job is actually temporary. Whether temporary 

or permanent, all workers always have a 

right to a safe and healthy workplace. The 

staffing agency and the staffing agency’s 

client (the host employer) are joint employers 

of temporary workers and, therefore, both are 

responsible for providing and maintaining a 

safe work environment for those workers. The 

staffing agency and the host employer must 

work together to ensure that the Occupational 

Safety and Health Act of 1970 (the OSH Act) 

requirements are fully met. See 29 U.S.C. § 651. 

The extent of the obligations of each employer 

will vary depending on workplace conditions 

and should therefore be described in the 

agreement or contract between the employers. 

Their safety and health responsibilities 

will sometimes overlap. Either the staffing 

agency or the host employer may be better 

suited to ensure compliance with a particular 

requirement, and may assume primary 

responsibility for it. The joint employment 

structure requires effective communication 

and a common understanding of the division 

of responsibilities for safety and health. Ideally, 

these will be set forth in a written contract.

OSHA and NIOSH recommend the following 

practices to staffing agencies and host 

employers so that they may better protect 

temporary workers through mutual cooperation 

and collaboration. Unless otherwise legally 

required, these recommendations are for 

the purpose of guidance and in some cases 

represent best practices. 

The Occupational Safety and Health Administration (OSHA) and the National Institute for 

Occupational Safety and Health (NIOSH) are aware of numerous preventable deaths and 

disabling injuries of temporary workers. One example is the death of a 27-year-old employed 

through a staffing agency to work as an equipment cleaner at a food manufacturing plant. 

While cleaning a piece of machinery, he came into contact with rotating parts and was pulled 

into the machine, sustaining fatal injuries. The manufacturing plant’s procedures for cleaning 

the equipment were unsafe, including steps in which cleaners worked near the machine 

while it was energized and parts were moving. Additionally, while the company’s permanent 

maintenance employees were provided with training on procedures to ensure workers were 

not exposed to energized equipment during maintenance or cleaning, this training was not 

provided to cleaners employed through the staffing agency. Source: Massachusetts Fatality 

Assessment and Control Evaluation (FACE) Program, 11MA050.
1-800-321-OSHA (6742) • www.osha.gov 2 1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh

} Evaluate the Host Employer’s Worksite. Prior 

to accepting a new host employer as a client, 

or a new project from a current client host 

employer, the staffing agency and the host 

employer should jointly review all worksites 

to which the worker might foreseeably be 

sent, the task assignments and job hazard 

analyses in order to identify and eliminate 

potential safety and health hazards and 

identify necessary training and protections 

for each worker. The staffing agency should 

provide a document to the host employer that 

specifies each temporary worker’s specific 

training and competencies related to the tasks 

to be performed. 

Staffing agencies need not become experts 

on specific workplace hazards, but should 

determine what conditions exist at the 

worksite, what hazards may be encountered, 

and how to best ensure protection for the 

temporary workers. Staffing agencies, 

particularly those without dedicated safety 

and health professionals on staff, should 

consider utilizing a third-party safety and 

health consultant. For example, staffing 

agencies may be able to utilize the safety 

and health consultation services provided 

by their workers’ compensation insurance 

providers. These consultation services are 

often offered to policyholders at little to no 

charge. Employers (staffing agencies and 

host employers) should inquire with their 

insurance providers about these services. 

Small and medium-sized businesses may 

request assistance from OSHA’s free on-site 

consultation service. On-site consultation 

services are separate from enforcement and 

do not result in penalties or citations. 

If information becomes available that shows 

an inadequacy in the host employer’s job 

hazard analyses, such as injury and illness 

reports, safety and health complaints or 

OSHA enforcement history, the staffing 

agency should make efforts to discuss 

and resolve those issues with the host 

employer to ensure that existing hazards 

are properly assessed and abated to protect 

the workers. In assessing worksite hazards, 

host employers typically have the safety and 

health knowledge and control of worksite 

operations. However, the staffing agency may 

itself perform an inspection of the workplace, 

if feasible, to conduct their own hazard 

assessment or to ensure implementation 

of the host employer’s safety and health 

obligations for temporary workers. 

} Train Agency Staff to Recognize Safety and 

Health Hazards. Many staffing agencies 

do not have dedicated safety and health 

professionals and, even when they do, these 

experts cannot be everywhere at once. By 

teaching agency representatives about basic 

safety principles and the hazards commonly 

faced by its temporary workers, the agency 

will be better equipped to discover hazards 

and work with the host employer to eliminate 

or lessen identified workplace hazards before 

an injury or illness occurs. 

} Ensure the Employer Meets or Exceeds the 

Other Employer’s Standards. When feasible, 

the host employer and staffing agency should 

exchange and review each other’s injury and 

illness prevention program. Host employers 

should also request and review the safety 

training and any certification records of the 

temporary workers who will be assigned to 

the job. Host employers in certain industries, 

for example, will only accept bids from 

and hire staffing agencies that the host 

has previously verified as meeting the host 

employer’s safety standards. Similarly, some 

staffing agencies work only with clients that 

have robust safety programs.

} Assign Occupational Safety and Health 

Responsibilities and Define the Scope of 

Work in the Contract. The extent of the 

responsibilities the staffing agency and the 

host employer have will vary depending 

on the workplace conditions and should 

be described in their agreement. Either the 

staffing agency or the host employer may 

be better suited to ensure compliance with 
1-800-321-OSHA (6742) • www.osha.gov 3 1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh

a particular requirement, and may assume 

primary responsibility for it. When feasible, 

the agency-host contract should clearly state 

which employer is responsible for specific 

safety and health duties. The contract should 

clearly document the responsibilities to 

encourage proper implementation of all 

pertinent safety and health protections for 

workers. This division of responsibilities 

should be reviewed regularly. 

The tasks that the temporary worker is 

expected to perform, and the safety and 

health responsibilities of each employer, 

should be stated in the agency-host contract 

and should be communicated to the worker 

before that worker begins work at the job site. 

For example, should the job tasks require 

personal protective equipment, the contract 

should state what equipment will be needed 

and which employer will supply it. The worker 

should be informed of these details before 

beginning the job. Clearly defining the scope 

of the temporary worker’s tasks in the agencyhost contract discourages the host employer 

from asking the worker to perform tasks 

that the worker is not qualified or trained to 

perform or which carry a higher risk of injury. 

Defining, clarifying, and communicating the 

employers’ and worker’s responsibilities 

protects the workers of both the staffing 

agency and of the host employer. The contract 

should specify who is responsible for all such 

communications with the temporary worker.

} Injury and Illness Tracking. Employer 

knowledge of workplace injuries and 

investigation of these injuries are vital to 

preventing future injuries from occurring. 

Information about injuries should flow 

between the host employer and staffing 

agency. If a temporary worker is injured and 

the host employer knows about it, the staffing 

agency should be informed promptly, so the 

staffing agency knows about the hazards 

facing its workers. Equally, if a staffing agency 

learns of an injury, it should inform the host 

employer promptly so that future injuries 

might be prevented, and the case is recorded 

appropriately. The parties should therefore 

also discuss a procedure to share injury and 

illness information between the employers, 

ideally specifying that procedure contractually. 

NOTE on Injury and Illness Recordkeeping 

Requirements: Both the host employer and 

staffing agency should track and where 

possible, investigate the cause of workplace 

injuries. However, for statistical purposes, 

OSHA requires that injury and illness records 

(often called OSHA Injury and Illness Logs) be 

kept by the employer who is providing dayto-day supervision, i.e., controlling the means 

and manner of the temporary employees’ 

work (the host employer, generally). See 

29 CFR 1904.31(b)(2). The agency-host 

contract should therefore identify the 

supervising employer and state that this 

employer is responsible for maintaining 

the temporary workers’ injury and illness 

records. Employers cannot discharge or 

contract away responsibilities that pertain to 

them under law. Further, the contract should 

specify which employer will make the records 

available upon request of an employee or an 

employee representative. 

The supervising employer is required to 

set up a method for employees to report 

work-related injuries and illnesses promptly 

and must inform each employee how to 

report work-related injuries and illnesses. 

However, both the staffing agency and the 

host employer should inform the temporary 

employee on this process and how to report 

a work-related injury or illness. See 29 CFR 

1904.35(b). 

No policies or programs should be in place 

that discourage the reporting of injuries, 

illnesses or hazards. The OSH Act prohibits 

employers from retaliating against a worker 

for reporting an injury or illness, including 

for filing a workers’ compensation claim for a 

work-related condition. 
1-800-321-OSHA (6742) • www.osha.gov 4 1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh

} Conduct Safety and Health Training and New 

Project Orientation. OSHA standards require 

site- and task-specific safety and health 

training. The training must be in a language 

the workers understand. Training helps to 

protect the workers of both the staffing 

agency and the host employer. 

The training of temporary workers is a 

responsibility that is shared between the 

staffing agency and the host employer. 

Staffing agencies should provide general 

safety and health training applicable to 

different occupational settings, and host 

employers provide specific training tailored to 

the particular hazards at their workplaces. The 

host employer and the staffing agency should 

each provide — separately or jointly — safety 

and health orientations for all temporary 

workers on new projects or newly-placed 

on existing projects. The orientation should 

include information on general workerprotection rights and workplace safety and 

health. At least one of the joint employers, 

generally the host employer, must provide 

worksite-specific training and protective 

equipment to temporary workers, and identify 

and communicate worksite-specific hazards. 

The temporary workers’ tasks, as defined 

by the agency-host contract, should also 

be clearly communicated to the workers 

and reviewed with the host employer’s 

supervisor(s). Host employers should provide 

temporary workers with safety training that 

is identical or equivalent to that provided 

to the host employers’ own employees 

performing the same or similar work. Host 

employers should inform staffing agencies 

when such site-specific training for temporary 

workers has been completed. Informing 

workers and supervisors of their respective 

responsibilities agreed upon by the joint 

employers protects the workers of both the 

staffing agency and the host employer.

• First Aid, Medical Treatment, and 

Emergencies. Procedures should be in 

place for both reporting and obtaining 

treatment for on-the-job injuries and 

illnesses. Temporary employees should be 

provided with information on how to report 

an injury and obtain treatment on every 

job assignment. Host employers should 

train temporary employees on emergency 

procedures including exit routes.

} Injury and Illness Prevention Program. It is 

recommended that staffing agencies and 

host employers each have a safety and health 

program to reduce the number and severity 

of workplace injuries and illnesses and ensure 

that their temporary workers understand it 

and participate in it. The employers’ safety 

programs should be communicated at the 

start of each new project, whenever new 

temporary workers are brought onto an 

existing project, or whenever new hazards 

are introduced into the workplace. 

NOTE: Employers are required to have 

hazard-specific programs when workers are 

exposed to certain hazards. Such programs 

include bloodborne pathogens, hearing 

conservation, hazard communication, 

respiratory protection, and control of 

hazardous energy (lock-out/tag-out). 

Contractors and employers who do 

construction work must comply with 

standards in 29 CFR 1926, Subpart C, 

General Safety and Health Provisions. 

These include the responsibilities for each 

contractor/employer to initiate and maintain 

accident prevention programs, provide for 

a competent person to conduct frequent 

and regular inspections, and instruct each 

employee to recognize and avoid unsafe 

conditions and know what regulations are 

applicable to the work environment.
1-800-321-OSHA (6742) • www.osha.gov 5 1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh

• Injury and Illness Prevention Program 

Assessments. The employers should 

identify and track performance measures 

key to evaluating the program’s 

effectiveness. For both staffing agencies 

and host employers, a quality program 

will stipulate how there will be ongoing 

assessments to evaluate the consistency, 

timeliness, quality and adequacy of the 

program. Leading indicators, such as 

training and number of hazards identified 

and corrected, should be included in the 

assessments. Generally speaking, these 

assessments should take place at least on 

an annual basis with a competent internal 

team or a combined internal and external 

team. The value of these assessments is 

the resulting prioritized recommendations 

for program improvement.

• Incidents, Injury and Illness Investigation. 

In addition to reporting responsibilities, 

employers should conduct thorough 

investigations of injuries and illnesses, 

including incidents of close-calls, in order 

to determine what the root causes were, 

what immediate corrective actions are 

necessary, and what opportunities exist to 

improve the injury and illness prevention 

programs. It is critical that both the 

staffing agency and host employer are 

engaged in partnership when conducting 

these investigations.

} Maintain Contact with Workers. The staffing 

agency should establish methods to maintain 

contact with temporary workers. This can 

be as simple as the agency representatives 

touching base with the workers throughout 

the temporary assignment, such as when the 

representatives are at the site to meet with 

the host employer or to drop off paychecks, 

or by phone or email. The staffing agency 

has the duty to inquire and, to the extent 

feasible, verify that the host has fulfilled its 

responsibilities for a safe workplace. 

The staffing agency should have a written 

procedure for workers to report any hazards 

and instances when a worker’s tasks are 

altered by the host employer from those 

previously agreed upon. The staffing agency 

and host employer should inform workers 

how to report hazards and/or changes to job 

tasks. For example, some staffing agencies 

have a hotline for their workers to call to 

report problems at the host employer’s 

worksite. The staffing agency distributes this 

phone number during the orientation. 

The staffing agency should follow up on a 

worker’s safety and health concerns and 

any complaints with the host employer, as 

well as investigate any injuries, illnesses and 

incidents of close calls. 

How Can OSHA Help?

OSHA has a great deal of information to 

assist employers in complying with their 

responsibilities under the law. Information on 

OSHA requirements and additional health and 

safety information is available on the OSHA 

website (www.osha.gov). Further information 

on protecting temporary workers is available at 

the OSHA Temporary Worker webpage (www.

osha.gov/temp_workers).

Workers have a right to a safe workplace

(www.osha.gov/workers.html#2). For other 

valuable worker protection information, such 

as Workers’ Rights, Employer Responsibilities 

and other services OSHA offers, visit OSHA’s 

Workers’ page.

The OSH Act prohibits employers from 

retaliating against their employees for exercising 

their rights under the OSH Act. These rights 

include raising a workplace health and safety 

concern with the employer, reporting an 

injury or illness, filing an OSHA complaint, 

and participating in an inspection or talking to 

an inspector. If workers have been retaliated 
1-800-321-OSHA (6742) • www.osha.gov 6 1-800-CDC-INFO (1-800-232-4636) • www.cdc.gov/niosh

Disclaimer: This document is not a standard or regulation, and it creates no new legal obligations. It contains 

recommendations as well as descriptions of mandatory safety and health standards. The recommendations are 

advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful 

workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards and 

regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty 

Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards 

likely to cause death or serious physical harm.

U.S. Department of Labor

DHHS (NIOSH) Publication Number 2014-139 OSHA - 3735-2014

against for exercising their rights, they must file 

a complaint with OSHA within 30 days of the 

alleged adverse action. For more information, 

please visit www.whistleblowers.gov.

OSHA can help answer questions or concerns 

from employers and workers. To reach your 

regional or area OSHA office, go to OSHA’s 

Regional and Area Offices webpage (www.

osha.gov/html/RAmap.html) or call 1-800-

321-OSHA (6742). OSHA also provides help to 

small and medium-sized employers. OSHA’s 

On-site Consultation Program offers free and 

confidential advice to small and medium-sized 

businesses in all states across the country, 

with priority given to high-hazard worksites. 

On-site consultation services are separate 

from enforcement activities and do not result 

in penalties or citations. To contact OSHA’s 

free consultation program, or for additional 

compliance assistance, call OSHA at 1-800-321-

OSHA (6742).

Workers may file a complaint to have OSHA 

inspect their workplace if they believe that their 

employer is not following OSHA standards or that 

there are serious hazards. Employees can file a 

complaint with OSHA by calling 1-800-321-OSHA 

(6742) or by printing the complaint form and 

mailing or faxing it to your local OSHA area office. 

Complaints that are signed by an employee are 

more likely to result in an inspection.

If you think your job is unsafe or you have 

questions, contact OSHA at 1-800-321-OSHA 

(6742). It’s confidential. We can help.

How Can NIOSH Help?

The National Institute for Occupational Safety and 

Health (NIOSH) is the federal agency that conducts 

research and makes recommendations to prevent 

worker injury and illness. Recommendations for 

preventing worker injuries and illnesses across all 

industries and for a wide variety of hazards are 

available on the NIOSH website (www.cdc.gov/

niosh). To receive documents or more information 

about occupational safety and health topics, 

please contact NIOSH at 1-800-CDC-INFO (1-800-

232-4636), TTY 1-888-232-6348. 

The NIOSH Fatality Assessment and Control 

Evaluation (FACE) program investigates selected 

work-related fatalities to identify high-risk work 

injury situations and to make recommendations 

for preventing future similar deaths. Investigations 

are conducted by NIOSH and state partners. 

For more information and links to reports of 

temporary worker deaths, please visit www.cdc.

gov/niosh/face. The Michigan and Massachusetts 

FACE programs have developed 1-2 page Hazard 

Alerts on temporary worker deaths that are 

available on their websites (www.oem.msu.edu/

userfiles/file/MiFACE/TemporaryWorkerHA17.pdf

and www.mass.gov/eohhs/docs/dph/occupationalhealth/temp-workers.pdf).

The NIOSH Health Hazard Evaluation (HHE) 

Program provides advice and assistance 

regarding work-related health hazards. NIOSH 

may provide assistance and information by 

phone, in writing, or may visit the workplace. 

The HHE Program can be reached at www.cdc.

gov/NIOSH/HHE or 513-841-4382.
5/14/2018 Heat Illness and Death Among Workers — United States, 2012–2013

https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6331a1.htm 1/4

Morbidity and Mortality Weekly Report (MMWR)

Heat Illness and Death Among Workers — United States, 2012–2013

Weekly

August 8, 2014 / 63(31);661-665

Sheila Arbury, MPH1, Brenda Jacklitsch, MS2, Opeyemi Farquah3, Michael Hodgson, MD4, Glenn Lamson, MS5, Heather Martin, MSPH3, Audrey Profitt, MPH6 (Author affiliations at end of text)

Exposure to heat and hot environments puts workers at risk for heat stress, which can result in heat illnesses and death. This report describes findings from a

review of 2012‒2013 Occupational Safety and Health Administration (OSHA) federal enforcement cases (i.e., inspections) resulting in citations under

paragraph 5(a)(1), the "general duty clause" of the Occupational Safety and Health Act of 1970. That clause requires that each employer "furnish to each of

his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious

physical harm to his employees" (1). Because OSHA has not issued a heat standard, it must use 5(a)(1) citations in cases of heat illness or death to enforce

employers' obligations to provide a safe and healthy workplace. During the 2-year period reviewed, 20 cases of heat illness or death were cited for federal

enforcement under paragraph 5(a)(1) among 18 private employers and two federal agencies. In 13 cases, a worker died from heat exposure, and in seven

cases, two or more employees experienced symptoms of heat illness. Most of the affected employees worked outdoors, and all performed heavy or moderate

work, as defined by the American Conference of Governmental Industrial Hygienists (2). Nine of the deaths occurred in the first 3 days of working on the job,

four of them occurring on the worker's first day. Heat illness prevention programs at these workplaces were found to be incomplete or absent, and no

provision was made for the acclimatization of new workers. Acclimatization is the result of beneficial physiologic adaptations (e.g., increased sweating

efficiency and stabilization of circulation) that occur after gradually increased exposure to heat or a hot environment (3). Whenever a potential exists for

workers to be exposed to heat or hot environments, employers should implement heat illness prevention programs (including acclimatization requirements)

at their workplaces.

To understand the effectiveness of existing heat illness prevention campaigns and tools, OSHA convened the Heat Illness Workgroup* to conduct a

systematic review of cases of occupational heat illness or death cited for federal enforcement under paragraph 5(a)(1) during 2012–2013. Cases were

identified by OSHA's Directorate of Enforcement Programs. For all cases reviewed, the workgroup established a list of program elements it considered

important based on published literature and members' professional experience (Table). These included information on local weather conditions, work

processes and workload, employer heat illness prevention program elements, health outcomes, numbers of persons affected, and individual risk factors.

When needed, OSHA Compliance Safety and Health Officers were consulted for case clarification.

During 2012‒2013, a total of 20 cases were cited for federal enforcement under paragraph 5(a)(1). Thirteen cases involved a worker death attributed to heat

exposure, and seven involved two or more workers with symptoms of heat illness. Thirteen worksites were outdoors. In eight cases, workers performed heavy

work, and in 12 cases they performed moderate work per American Conference of Governmental Industrial Hygienists workload definitions (2). Seven cases

occurred in indoor facilities with a local heat source, such as laundry equipment or combustion engines. The cases occurred in various workplaces, including

two in solid waste collection, two in mail delivery, nine in outdoor worksites (e.g., ship repair, landscaping, roofing, and oil servicing), two in laundries, and

five in indoor worksites with machinery or other heat sources. All heat illnesses and deaths occurred on days with a heat index in the range of 84.0°F–

105.7°F (29.0°C–41.0°C), although those working in direct sunlight might have experienced a heat index that was up to 15.0°F (8.3°C) higher than reported

(3).

Thirteen employers had not incorporated an approach to identifying heat illness risk (e.g., heat index), as described by the National Oceanic and

Atmospheric Administration, into their heat illness prevention program (4). None of the employer heat illness prevention programs were complete. Twelve

had no program at all, seven provided inadequate water management, and 13 failed to provide shaded rest areas. Only one of the employers used work-rest

cycles (i.e., scheduled periods of rest between periods of work based on temperature, humidity, and the intensity of the work activity), and none had an

acclimatization program (Table). Four of the 13 deaths occurred on the first day at work in a new job or after returning from time away from the job, three on

the second day, and two on the third day; four deaths occurred among long-time employees. In the cases that involved heat illness but not a death, the

number of days on the job did not appear to contribute to any of the heat-related incidents.

Discussion

Heat-related deaths often occur in occupations in which workers are performing tasks in hot environments, causing them to build metabolic heat faster than

their bodies can release heat and cool down. In North Carolina, during 2008–2010, work-related heat illnesses resulting in emergency department visits

were more common than work-related emergency department visits with any other cause among persons aged 19–45 years (5). In Maricopa County, Arizona,

during 2002–2009, outdoor work in construction and agriculture accounted for 35% of heat-related deaths in men (6). A total of 68 crop production worker

deaths were reported in the United States during 1992–2006, resulting in an annual average death rate of 0.39 deaths per 100,000 crop workers (7).

Particularly in agriculture, estimates of heat illness cases are likely to be undercounts because some surveys exclude workers on small farms (8).

Although OSHA's Heat Illness Prevention Campaign's core message "Water. Rest. Shade." has been widely disseminated and reflects many similar public

health messages (9), this review shows that some employers have not developed complete heat illness prevention programs. Strikingly, in the cases reviewed,

the failure to support acclimatization appears to be the most common deficiency and the factor most clearly associated with death. Employers need to

provide time to acclimatize for workers absent from the job for more than a few days, new employees, and those working outdoors during an extreme heat

event or heat wave. Employers must ensure that all workers acclimatize to hot environments by gradually increasing duration of work in the hot

environment. In addition, health care providers should be aware of the loss of acclimatization in their patients who have been out of work for a week or more

and counsel them that they will need time to regain acclimatization once they return to their job. New workers and all workers returning from an absence of

more than a week should begin with 20% of the usual duration of work in the hot environment on the first day, increasing incrementally by no more than

20% each subsequent day (3). During a rapid change leading to excessively hot weather or conditions such as a heat wave, even experienced workers should

begin on the first day of work in excessive heat with 50% of the usual duration of work, 60% on the second day, 80% on the third, and 100% on the fourth day

(9). Full acclimatization might take up to 14 days or longer to attain, depending on individual or environmental factors.

Employers should be aware of the importance of all elements, including acclimatization, in their heat illness prevention programs. They should be diligent

about 1) designating a person to develop, implement, and manage the program, 2) monitoring the temperature (e.g., heat index and wet bulb globe

temperature†) of their worksite, 3) providing water and rest breaks in a shaded, cool area, 4) acclimatizing workers by gradually increasing the exposure to

heat or a hot environment, 5) modifying work schedules as necessary to reduce workers' exposure to heat, 6) training workers on the signs and symptoms of

heat illness, 7) monitoring workers for signs of heat stress, and 8) planning for emergencies and response. Guidance provided by CDC's National Institute for
5/14/2018 Heat Illness and Death Among Workers — United States, 2012–2013

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Occupational Safety and Health includes information on acclimatization, work-rest schedules, adequate hydration, indices for monitoring environmental

heat stress (including wet bulb globe temperature), and other recommendations that can be used for developing a heat illness prevention program (9,10).

The findings in this report are subject to at least three limitations. First, information collected retrospectively might fail to identify important elements such

as individual prior acclimatization that might have been missed by OSHA Compliance Safety and Health Officers. Second, information from weather websites

regarding past weather conditions relatively close to the worksite under consideration might not accurately represent conditions at the worksite itself

(especially because at least one of the weather stations was more than 100 miles from the worksite) and thus might fail to identify the actual impact of

weather. Finally, OSHA Compliance Safety and Health Officers performing workplace inspections might have missed program elements identified by the

Heat Illness Workgroup because these elements were not part of routine information collection.

Additional information and resources regarding heat stress are available from CDC at http://www.cdc.gov/niosh/topics/heatstress and from OSHA at

https://www.osha.gov/SLTC/heatillness/edresources.html .

1Office of Occupational Health Nursing, Occupational Safety and Health Administration (OSHA); 2Education and Information Division, National Institute

for Occupational Safety and Health, CDC; 3Office of Science and Technology Assessment, OSHA; 4Office of Occupational Medicine, OSHA; 5Salt Lake

Technical Center, Directorate of Technical Support and Emergency Management, OSHA; 6Office of Health Enforcement, OSHA (Corresponding author:

Michael J. Hodgson, hodgson.michael@dol.gov, 202-693-1768)

References

1. Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C.654) and 29 CFR 1960.8(a) for federal agencies. Available at

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&p_table=oshact .

2. American Conference of Governmental Industrial Hygienists. TLVs and BEIs: threshold limit values for chemical substances and physical agents of

biological exposure indices. Heat stress and strain. Cincinnati, OH: American Conference of Governmental Industrial Hygienists; 2007.

3. Occupational Safety and Health Administration. Campaign to prevent heat illness in outdoor workers. Washington, DC: US Department of Labor,

Occupational Safety and Health Administration; 2014. Available at https://www.osha.gov/SLTC/heatillness .

4. National Oceanic and Atmospheric Administration. Heat: a major killer. Silver Spring, MD: National Oceanic and Atmospheric Administration; 2014.

Available at http://www.nws.noaa.gov/os/heat/index.shtml .

5. Rhea S, Ising A, Fleischauer AT, Deyneka L, Vaughan-Batten H, Waller A. Using near real-time morbidity data to identify heat-related illness

prevention strategies in North Carolina. J Community Health 2012;37:495–500.

6. Petitti DB, Harlan SL, Chowell-Puente G, Ruddell D. Occupation and environmental heat-associated deaths in Maricopa County, Arizona: a casecontrol study. PLoS One 2013;8(5).

7. CDC. Heat-related deaths among crop workers—United States, 1992–2006. MMWR 2008;57:649–53.

8. Leigh JP, Du J, McCurdy SA. An estimate of the U.S. government's undercount of nonfatal occupational injuries and illnesses in agriculture. Ann

Epidemiol 2014;24:254–9.

9. CDC. Criteria for a recommended standard: occupational exposure to hot environments (revised criteria 1986). Cincinnati, OH: US Department of

Health and Human Services, CDC, National Institute for Occupational Safety and Health; 1986. DHHS (NIOSH) publication no. 86-113. Available at

http://www.cdc.gov/niosh/docs/86-113.

10. CDC. OSHA-NIOSH infosheet: protecting workers from heat illness. Cincinnati, OH: US Department of Health and Human Services, CDC, National

Institute for Occupational Safety and Health; 2011. DHHS (NIOSH) publication no. 2011-174. Available at http://www.cdc.gov/niosh/docs/2011-174.

* The Heat Illness Workgroup was created in 2014 after an informal internal review of OSHA's Heat Illness Campaign and consisted of representatives from

the various offices (all listed as coauthors in this report) involved in campaign materials development. The group invited a representative from CDC's

National Institute for Occupational Safety and Health when they became aware of the CDC/NIOSH document revision, Criteria for a Recommended

Standard: Occupational Exposure to Heat and Hot Environments that was underway.

† Wet bulb globe temperature is the measure of heat stress in direct sunlight that takes into account temperature, humidity, wind speed, sun angle, and cloud

cover. This differs from the heat index, which takes into account temperature and humidity and is calculated for shady areas. Additional information

available at http://www.srh.noaa.gov/tsa/?n=wbgt .

What is already known on this topic?

Exposure to heat and hot environments puts workers at risk for heat stress, which can result in heat illness and death. Guidance for prevention exists, but

heat illness prevention programs are not formally implemented by most employers.

What is added by this report?

A review of 2012–2013 Occupational Safety and Health Administration federal enforcement cases (i.e., inspections) resulting in citations under paragraph

5(a)(1), the "general duty clause" of the Occupational Safety and Health Act of 1970, indicated a total of 20 cases involving heat illness and death among

workers (13 cases of worker deaths and seven cases in which two or more employees experienced symptoms of heat illness). Most of the affected workers

were outdoors and performing heavy or moderate work. In addition, most deaths occurred in the first 3 days of working, with four of them occurring on the

worker's first day. Many employers had no heat illness prevention program. Among those with such programs, many lacked basic program elements, such as

water management, shaded rest areas, work-rest cycles, and acclimatization protocols. Employers' failure to support acclimatization appears to be the most

common deficiency and the factor most clearly associated with death.

What are the implications for public health practice?

Heat illness prevention recommendations include the provision of water and rest breaks in a shaded, cool area to employees. Guidance from regulatory and

public/occupational health agencies should include acclimatization of workers as an essential element of employer heat illness prevention programs.

TABLE. Summary of heat illness and fatality cases cited by the Occupational Safety and Health Administration (OSHA)* — United States

Case

no.

Age

(yrs) Fatality Type ofemployment

Temperature

(heat index)

at time of

incident

Time

employed

Overall

employer

program

present

Employer

provided

water and

supported

use

Employer

provided rest

opportunities

Employer

provided

cool or

shaded

area

Workrest

cycle

Acclimatization

program

Local

uncon

heat so

(indoo

1 47 Yes Waste 

collection

91.0°F, 32.8°C

(93.8°F,

1 day No No Only on

scheduled

No No No None
5/14/2018 Heat Illness and Death Among Workers — United States, 2012–2013

https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6331a1.htm 3/4

34.3°C) breaks

2

Unknown

(multiple

workers)

No HVAC systems

manufacturing

98.6°F, 37.0°C

(105.5°F,

40.8°C)

Unknown No No Limited breaks No No No

Plant

machin

inopera

3 47 Yes Asphalt

paving

97.0°F, 36.1°C

(99.9°F,

37.7°C)

3 days No Yes Scheduled and

water breaks No No No

Asphalt

machin

asphalt

4 39 Yes Synthetic turf

installation

91.9°F, 33.3°C

(92.5°F,

33.6°C)

2 days Yes Yes Scheduled

breaks No No No Synthetmateria

5 Unknown No Commercial

laundry

93.9°F, 34.4°C

(102.1°F,

38.4°C)

Unknown No Yes Scheduled

breaks Yes Yes† No

Irons, w

dryers, 

or fans

6 55 Yes Mail delivery

102.0°F,

38.9°C 

(104.6°F,

40.3°C)

2 days Yes No No No§ No No None

7

3

workers:

53; mid30's; 31

No Oil field

servicing

96.1°F, 35.6°C 

(102.0°F,

38.8°C)

Unknown Yes No Minimal breaks No No No

Rig eng

black st

pipe

8 60 Yes Roofing

82.9°F, 28.3°C

(84.0°F,

28.9°C)

1 day No Yes Scheduled

breaks Yes No No Reflectisurface

9

Unknown

(multiple

workers)

No Laundry

92°F, 33.3°C

(100.0°F,

37.8°C)

Unknown No No Scheduled

breaks No No No Irons, wdryers, 

10 30 Yes Oil and gas

drilling

101.0°F,

38.3°C

(101.7°F,

38.7°C)

2 days No Yes Scheduled

breaks Yes No No None

11 31 Yes Waste 

collection

91.0°F, 32.8°C

(97.0°F,

36.1°C)

3 days No Yes Minimal breaks No No No None

12 36 Yes Laying pipe

84.0°F, 28.9°C

(88.0°F,

31.1°C)

1 day Yes Yes Scheduled

breaks Yes No No None

13

Unknown

(multiple

workers)

No Printing 

services

93.9°F, 34.4°C

(98.6°F,

37.0°C)

Unknown No No Limited breaks No No No Machin

14 59 Yes Ship repair

87.1°F, 30.6°C

(94.5°F,

34.7°C)

1 day No No Breaks as

needed No No No None

15 45 Yes Mail delivery

93.9°F, 34.4°C

(98.6°F,

37.0°C)

>1 year Yes Yes No No No No None

16

20's (2

workers);

35 (1

worker)

No Roofing

97.0°F, 36.1°C

(105.5°F,

40.8°C)

2 weeks 

(1 worker);

2–3 days 

(2

workers)

No Yes Scheduled

breaks Yes No No Hot tar

17

Unknown

(2

workers)

No Military post

exchange

90.0°F, 32.2°C

(97.9°F,

36.6°C)

>1 year Yes Yes No No No No

Not fun

A/C, m

trailer, 

parking

18 64 Yes

Waste 

handling and

recycling

93.9°F, 34.4°C

(100.8°F,

38.2°C)

1 year Yes Yes

One 45-minute

break in 12-

hour shift

No No No

Radian

from m

aluminu

walls

19 68 Yes Sauna 82.4°F, 28.0°C

(82.9°F,

Unknown No Yes Scheduled

breaks

Yes No No Sauna

temper
5/14/2018 Heat Illness and Death Among Workers — United States, 2012–2013

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Page last reviewed: August 08, 2014

Page last updated: August 08, 2014

Content source: Centers for Disease Control and Prevention

Centers for Disease Control and Prevention 1600 Clifton Road Atlanta, GA 30329-4027, USA

800-CDC-INFO (800-232-4636) TTY: (888) 232-6348 - Contact CDC–INFO

28.3°C) 200.0–

250.0°F

(93.3–1

radiant

from st

walls

20 64 Yes Park

113.0°F,

45.0°C

(105.7°F,

40.9°C)¶

>1 year Yes Yes Breaks as

needed Yes No No None

Sources: OSHA's Directorate of Enforcement Programs database for heat case inspections. OSHA Compliance Safety and Health Officers' inspection records

interviews with Compliance Safety and Health Officers about the inspections.

Abbreviations: HVAC = heating, ventilation, and air conditioning; A/C = air conditioning.

* OSHA convened the Heat Illness Workgroup to conduct a systematic review of cases of occupational heat illness or death cited for federal enforcement (i.e., 

paragraph 5(a)(1), the "general duty clause" of the Occupational Safety and Health Act of 1970, for the period 2012–2013. Cases were identified by OSHA's Di

Enforcement Programs. For all cases reviewed, the workgroup established a list of program elements it considered important based on published literature an

professional experience.

† 75% laundry sorting and 25% rest.

§ A/C unavailable in mail delivery vehicles.

¶ Humidity was very low (7%), making the heat index lower than the temperature.

Use of trade names and commercial sources is for identification only and does not imply endorsement by the U.S. Department of Health and Human Services.

References to non-CDC sites on the Internet are provided as a service to MMWR readers and do not constitute or imply endorsement of these organizations or their programs by CDC or

the U.S. Department of Health and Human Services. CDC is not responsible for the content of pages found at these sites. URL addresses listed in MMWR were current as of the date of

publication.

All MMWR HTML versions of articles are electronic conversions from typeset documents. This conversion might result in character translation or format errors in the HTML version. Users

are referred to the electronic PDF version (http://www.cdc.gov/mmwr) and/or the original MMWR paper copy for printable versions of official text, figures, and tables. An original paper

copy of this issue can be obtained from the Superintendent of Documents, U.S. Government Printing Office (GPO), Washington, DC 20402-9371; telephone: (202) 512-1800. Contact GPO

for current prices.

**Questions or messages regarding errors in formatting should be addressed to mmwrq@cdc.gov.
Contents lists available at ScienceDirect

Accident Analysis and Prevention

journal homepage: www.elsevier.com/locate/aap

Fatal falls and PFAS use in the construction industry: Findings from

the NIOSH FACE reports

Xiuwen Sue Donga,∗, Julie A. Largaya, Sang D. Choi b, Xuanwen Wanga, Chris Trahan Caina

, Nancy Romanoc

a CPWR – The Center for Construction Research and Training, 8484 Georgia Ave, Suite 1000, Silver Spring, MD 20910, United States b University of Wisconsin-Whitewater, Department of Occupational & Environmental Safety & Health, Hyland Hall 3509, 800 West Main St., Whitewater,

WI 53190, United States c National Institute for Occupational Safety and Health, Division of Safety Research, 1095 Willowdale Rd., Room 1714, Morgantown, WV 26505, United

States

a r t i c l e i n f o

Article history:

Received 28 October 2016

Received in revised form 17 February 2017

Accepted 28 February 2017

Keywords:

Construction industry

Fatality Assessment and Control Evaluation

Fall hazards

Fall height

Fall protection

Personal fall arrest systems

a b s t r a c t

This study analyzed the Construction FACE Database (CFD), a quantitative database developed from

reports of the Fatality Assessment and Control Evaluation (FACE) program conducted by the National

Institute for Occupational Safety and Health (NIOSH). The CFD contains detailed data on 768 fatalities

in the construction industry reported by NIOSH and individual states from 1982 through June 30, 2015.

The results show that falls accounted for 42% (325) of the 768 fatalities included in the CFD. Personal fall

arrest systems (PFAS) were not available to more than half of the fall decedents (54%); nearly one in four

fall decedents (23%) had access to PFAS, but were not using it at the time of the fall. Lack of access to PFAS

was particularly high among residential building contractors as well as roofing, siding, and sheet metal

industry sectors (∼70%). Although the findings may not represent the entire construction industry today,

they do provide strong evidence in favor of fall protection requirements by the Occupational Safety and

Health Administration (OSHA). In addition to stronger enforcement, educating employers and workers

about the importance and effectiveness of fall protection is crucial for compliance and fall prevention.

© 2017 Elsevier Ltd. All rights reserved.

1. Introduction

Occupational fatality statistics in the U.S. construction industry

continue to highlight the risks and hazards associated with construction work. Data for 2014 show there were more fatalities in

construction than in any other major industry in the U.S., and the

annual number of construction fatalities has increased since 2011,

which coincides with the recent economic recovery (U.S. Bureau of

Labor Statistics, 2016). Moreover, fatal injuries caused by falls have

remained the leading cause of fatalities in construction since 1992

(CPWR, 2013; U.S. Bureau of Labor Statistics, 2016).

Fall protection is an essential part of preventing fall injuries.

The Occupational Safety and Health Administration (OSHA), which

sets and enforces standards to ensure safe work conditions in the

United States, requires that each employee on a walking or working

∗ Corresponding author at: Data Center Director, CPWR – The Center for Construction Research and Training, 8484 Georgia Ave, Silver Spring, MD 20910, United

States.

E-mail address: sdong@cpwr.com (X.S. Dong).

surface (horizontal and vertical) with an unprotected side or edge

that is 6 feet (1.8 m) or more above a lower level must be protected

from falling by the use of guardrail systems, safety net systems, or

a personal fall arrest system (PFAS) (OSHA, 2010). However, until

2010, these requirements did not apply to the residential construction industry. According to OSHA case reports of fatalities between

2005 and 2010 (prior to the change in requirements), there was

little or no appropriate fall protection used in residential roofing

(Moore and Wagner, 2014). Earlier studies found that more than

40% of fall injuries from scaffolding, staging, or floor openings could

be attributed to non-compliant scaffolds and unguarded openings

(Chi et al., 2005). Falls from ladders also account for a large proportion of workplace injuries related to falls from heights (DiDomenico

et al., 2013), although fall protection is not required on portable

ladders (29 CFR1926.1053).In addition, a 1997 study found a significant relationship between injury severity and height of fall (Gillen

et al., 1997). Despite improvements in OSHA standards, lack of fall

protection remained at the top of OSHA’s most frequently cited

construction standards in 2014 (OSHA, 2015b).

Although a comprehensive understanding of the causal factors

in fatal falls is important for injury intervention, the existing literahttp://dx.doi.org/10.1016/j.aap.2017.02.028

0001-4575/© 2017 Elsevier Ltd. All rights reserved.
ture appears to lack a scientific review of falls from height (Nadhim

et al., 2016). Data collection on the height of falls was just initiated

in 2011 by the Census of Fatal Occupational Injuries (CFOI), which is

the primary data source for occupational safety and health surveillance of fatalities. Information on usage of PFAS is even scarcer in

the existing databases and literature.

To improve understanding of fatal incidents and provide recommendations for avoiding similar events in the future, NIOSH has

maintained the Fatality Assessment and Control Evaluation (FACE)

program since 1982. In addition to the demographic and employment data collected on decedents, FACE has reported information

on height of falls since inception ofthe program. Information on fall

protection status was also collected, including whether the decedent was wearing fall protection when the incident occurred; had

access to fall protection (such as the equipment was provided to

the decedent prior to the incident or was available on site), but

did not use it; or no fall protection was provided. FACE investigators also made recommendations on how the incident may

have been prevented based on the incident circumstances. These

detailed incident descriptions and recommendations can be critical

for designing injury prevention measures, including safety policies and procedures, engineering controls, and other aspects of the

safety climate (Higgins et al., 2001; Menendez et al., 2012).

The Construction FACE Database (CFD), a numeric database covering all FACE reports in the construction industry published from

1982 to June 30, 2015, facilitates the use of the rich data included in

the FACE reports (more information on the CFD creation and co

tents is reported separately). This study examined characterist

of fall fatalities and fall protection use in the construction indust

by analyzing the CFD. The study attempts to fill certain resear

gaps, given the shortage of information on the height of falls a

use of PFAS in the construction industry in the existing literatur

2. Materials and methods

The fatal cases involving falls were identified from the CF

Height ofthese fatalfalls, and access to and use of PFAS when the f

occurred, were examined and compared among the decedents w

different demographic and employment characteristics. Heights 

falls were grouped into four major categories: (1) less than 6 fe

(2) 6–15 feet, (3) 16–30 feet, and (4) more than 30 feet. These cat

gories were based on OSHA’s regulations and requirements (OSH

2014). To identify whether the decedent was wearing fall prote

tion, or if not, whether fall protection was present at the incide

site, PFAS status was categorized as: (1) present, in use; (2) prese

notin use;(3) not present; and (4) unknown. Construction indust

subsectors were coded according to the Standard Industrial Cla

sification (SIC) system. Occupations were classified based on t

1990 Census Occupational Classification System. Only major co

struction occupations were reported in this study due to too fe

cases among smaller occupations and those with a lower risk 

falls.

Table 1

Characteristics of FACE fatalities, all fatalities vs. fatal falls.

Characteristics All Fatalities Fatal Falls

Number Number % of all Fatalitie

Age

Less than 25 years 126 45 35.7%

25–44 years 375 169 45.1%

45–64 years 189 88 46.6%

65+ years 25 15 60.0%

Not reported 53 8 15.1%

Employment Status

Wage-and-salary 666 278 41.7%

Self-employed 71 31 43.7%

Other/Not reported 31 16 51.6%

Occupation

Construction laborers, helpers 186 60 32.3%

Structural metal workers 61 42 68.9%

Supervisors, construction 98 40 40.8%

Carpenters 55 34 61.8%

Roofers 40 31 77.5%

Other, n.e.c. 328 118 36.0%

Job Tenure

Up to 1 week 67 36 53.7%

>1 week to 2 months 82 42 51.2%

>2 months to 6 months 71 33 46.5%

>6 months to 2 years 105 47 44.8%

>2 years to 5 years 82 36 43.9%

>5 years 163 69 42.3%

Unknown/Not reported 198 62 31.3%

Industry

General Building Contractors – Residential 53 32 60.4%

General Building Contractors – Nonresidential 70 35 50.0%

Roofing, Siding, & Sheet Metal Work 76 58 76.3%

Structural Steel Erection 53 38 71.7%

Special Trade Contractors, n.e.c. 288 118 41.0%

Other, n.e.c. 228 44 19.3%

Employer Size

Up to 20 employees 338 172 50.9%

21 to 200 employees 212 83 39.2%

More than 200 employees 89 33 37.1%

Unknown/Not reported 93 37 39.8%

Total 768 325 42.3%
1.9% 2.3% 2.7%

13.9%

24.0%

48.7%

39.8%

43.3%

29.7%

44.4%

30.4%

18.9%

0%

20%

40%

60%

80%

100%

1982-1992 1993-2003 2004-2014

seitil at af ll af f ot necr eP

Years

More than 30 feet

16-30 feet

6-15 feet

Less than 6 feet

Fig. 1. NIOSH FACE reports: fatal falls in construction, by height of fall, 1982–2014. Height of fall is missing for 9 of 325 cases.

Source: NIOSH and State FACE Reports for Construction.

Trend analysis was conducted to examine changes in FACE

fall investigations and the use of PFAS over a 33-year period

(1982–2015). The characteristics of fall decedents, including age,

employment status (i.e., wage-and-salary, self-employed, and

other), occupation, and job tenure (i.e., tenure with the employer

when the fatal incident occurred) were examined by height of falls

and PFAS status. Information on the decedent’s employer, such

as industry sector and size of the employer, were stratified by

height of fall and PFAS status. Fall height and PFAS status were also

explored by type of fall (e.g., fall through surface, fall from ladder)

and incident location (e.g., residential construction site, nonresidential construction site). Information on race and ethnicity was

missing for the majority of cases, and was therefore not included

in this study. Descriptive statistics, including number of deaths

and percent distributions among subcategories, were tabulated and

reported. The CFD was analyzed using SAS version 9.4.

3. Results

3.1. General trends

Overall, falls accounted for 325 (42%) of the 768 construction

fatalities included in the CFD (Table 1). There was a higher incidence of total fatalities and fatalities from falls among decedents

aged 25–44 years than any other age group. Older decedents had a

smaller share of overall fatalities, but a higher proportion of fatalities from falls, than younger ones. For those aged 65 and older,

60% of the fatalities were due to falling, compared to 36% of workers younger than 25. By occupation, about 78% of roofer fatalities

were caused by falls, compared to 32% for construction laborers and

helpers. Decedents having a short job tenure with the employer at

the time of the incident were more likely to die from falls. Among

decedents who had been on the job for just one week, 54% of all

fatalities were from falls, while the proportion was 42% for decedents having five or more years with their employer when the

incident occurred. When industry was examined, more than three

out of four fatalities that occurred among the roofing, siding, and

sheet metal industries were found to be from falls. Additionally,

more than half of all the fatalities among employers with 20 or

fewer employees were from falls, compared to 37% among those

with more than 200 employees.

3.2. Height of falls

Over the study period, fatal falls reported by FACE shifted from

falls from higher levels to falls from lower levels. The proportion of

fatal falls from more than 30 feet dropped significantly—from 44.4%

between 1982 and 1992 to 18.9% between 2004 and 2014 (Fig. 1).

In contrast, the proportion of fatal falls from 15 feet or less more

than tripled during the same time period (15.8% to 51.4%).

More than one-third (107) of fall fatalities were from heights

of more than 30 feet (9 cases without height information were

excluded), and seven falls from less than six feet were identified

(Table 2). Older decedents had a higher proportion of fatal falls

from lower heights, and few fell from over 30 feet. Nearly half of

falls among self-employed decedents were from 15 feet or below,

double the proportion among wage-and-salary decedents (46.5%

vs. 22.7%). Decedents employed as structural metal workers had

the highest proportion offalls from more than 30 feet(52.4%), while

roofers had the highest proportion offalls from 16 to 30 feet(63.3%).

However, no association between the height of falls and job tenure

was observed. Among construction subsectors, more than half of

falls in the roofing, siding, and sheet metal industry were from 16 to

30 feet, and 97% of falls among residential contractors were below

30 feet. Smaller employers had a larger proportion of falls from

lower levels.

In terms of source of falls, almost half of falls from ladders

occurred below 15 feet, while the proportionoffalls frommore than

30 feet was higher among those working on scaffolding, staging,

building girders, or other structural steel (Table 3). Some jobsites

were more likely to experience falls from specific heights. For

example, falls from 6 to 15 feet were more than twice as likely at

residential construction sites when compared to all locations (48%

vs. 23%).

3.3. Usage of personal fall arrest systems (PFAS)

Fall protection use was examined despite missing data for 17%

of cases. Neither the proportion of workers without access to fall

protection (i.e., PFAS not present), nor that of workers using fall

protection (i.e., PFAS present, in use), had any noteworthy changes

over the time period (Fig. 2). Nevertheless, the proportion of workers with PFAS available but not in use dropped from 22% to 15%

during this period.
Table 2

Height of falls, selected characteristics.

Characteristics Height of Falls Total Falls1

Less than 6 Feet 6–15 Feet 16–30 Feet More than 30 Feet

Percent Percent Percent Percent (Number) 

Total (7) 2.2% (74) 23.4% (128) 40.5% (107) 33.9% (316) 100%

Age

Less than 25 years 2.3% 23.3% 37.2% 37.2% (43) 100%

25–44 years 0.6% 18.9% 43.3% 37.2% (164) 100%

45–64 years 3.4% 28.7% 39.1% 28.7% (87) 100%

65+ years 13.3% 53.3% 33.3% 0.0% (15) 100%

Not reported 0.0% 0.0% 28.6% 71.4% (7) 100%

Employment Status

Wage-and-salary 1.5% 21.2% 41.0% 36.3% (273) 100%

Self-employed 3.6% 42.9% 39.3% 14.3% (28) 100%

Other/Not reported 13.3% 26.7% 33.3% 26.7% (15) 100%

Occupation

Construction laborers, helpers 1.7% 29.3% 51.7% 17.2% (58) 100%

Structural metal workers 0.0% 9.5% 38.1% 52.4% (42) 100%

Supervisors, construction 5.1% 17.9% 43.6% 33.3% (39) 100%

Carpenters 0.0% 54.5% 39.4% 6.1% (33) 100%

Roofers 0.0% 23.3% 63.3% 13.3% (30) 100%

Other, n.e.c. 3.5% 18.4% 28.9% 49.1% (114) 100%

Job Tenure

Up to 1 week 0.0% 30.6% 38.9% 30.6% (36) 100%

>1 week to 2 months 0.0% 17.1% 48.8% 34.1% (41) 100%

>2 months to 6 months 6.3% 18.8% 40.6% 34.4% (32) 100%

>6 months to 2 years 2.2% 22.2% 35.6% 40.0% (45) 100%

>2 years to 5 years 0.0% 26.5% 29.4% 44.1% (34) 100%

>5 years 1.5% 30.9% 45.6% 22.1% (68) 100%

Unknown/Not reported 5.0% 16.7% 40.0% 38.3% (60) 100%

Industry

General Building Contractors – Residential 0.0% 48.4% 48.4% 3.2% (31) 100%

General Building Contractors – Nonresidential 2.9% 28.6% 42.9% 25.7% (35) 100%

Roofing, Siding, & Sheet Metal Work 0.0% 26.3% 54.4% 19.3% (57) 100%

Structural Steel Erection 0.0% 8.3% 47.2% 44.4% (36) 100%

Special Trade Contractors, n.e.c. 3.5% 21.1% 32.5% 43.0% (114) 100%

Other, n.e.c. 4.7% 16.3% 30.2% 48.8% (43) 100%

Employer Size

Up to 20 employees 1.2% 27.5% 44.3% 26.9% (167) 100%

21 to 200 employees 2.4% 18.1% 38.6% 41.0% (83) 100%

More than 200 employees 3.0% 24.2% 21.2% 51.5% (33) 100%

Unknown/Not reported 6.1% 15.2% 45.5% 33.3% (33) 100%

1 Height of fall is missing for 9 of 325 cases.

Table 3

Case characteristics by height of fall.

Characteristics Height of Fall Total Falls1

Less than 6 Feet 6–15 Feet 16–30 Feet More than 30 Feet

Percent Percent Percent Percent (Number) %

Total (7) 2.2% (74) 23.4% (128) 40.5% (107) 33.9% (316) 100%

Type of Fall

Fall through floor opening/surface 0.0% 21.7% 43.5% 34.8% (23) 100%

Fall through roof surface, existing opening, or skylight 0.0% 7.5% 67.9% 24.5% (53) 100%

Fall from roof edge 0.0% 22.9% 52.1% 25.0% (48) 100%

Fall from scaffold, staging, building girders, or other structural steel 2.2% 22.5% 24.7% 50.6% (89) 100%

Fall from ladder 7.7% 41.0% 46.2% 5.1% (39) 100%

Fall to lower level, n.e.c. 3.1% 28.1% 26.6% 42.2% (64) 100%

Location

Nonresidential construction site 3.8% 16.8% 42.7% 36.6% (131) 100%

Residential construction site 2.0% 48.0% 40.0% 10.0% (50) 100%

Industrial places & premises 0.0% 20.0% 45.7% 34.3% (35) 100%

Residential home 0.0% 26.5% 61.8% 11.8% (34) 100%

Public building 3.6% 32.1% 21.4% 42.9% (28) 100%

Other, n.e.c. 0.0% 7.9% 23.7% 68.4% (38) 100%

1 Height of fall is missing for 9 of 325 cases.
7.3% 4.0% 7.3%

22.0% 25.7% 14.6%

60.6%

49.1% 58.5%

10.1%

21.1% 19.5%

0%

20%

40%

60%

80%

100%

1982-1992 1993-2003 2004-2014

seitil at af ll af f ot necr eP

Years

Unknown

Not present

Present, not in use

Present, in use

Fig. 2. NIOSH FACE reports: fatal falls in construction, by Personal Fall Arrest System (PFAS) status, 1982–2014.

Source: NIOSH and State FACE Reports for Construction.

Only 28.6% of decedents had access to PFAS (Table 4). More than

half (54.2%) did not have access to PFAS, and records were incomplete for an additional 17.2%. Among those who had access to PFAS,

81% were not using it when the incident occurred. In general, decedents under age 45 had better access to PFAS than older decedents.

However, the percentage not using PFAS (when present) or experiencing a PFAS failure was also higher among younger decedents.

In addition, the majority of self-employed decedents did not have

access to PFAS (68%) or their PFAS status was unknown (29%). As a

result, none of the self-employed decedents in the CFD were using

PFAS at the time of the fall. By construction subsector, about 70%

of decedents in the residential construction industry and roofing,

siding, and sheet metal industries had no access to PFAS. However,

PFAS status was unknown for 28% of decedents in residential construction. In terms of occupation, about 70% of decedent roofers and

laborers and helpers did not have access to PFAS. More than half

(54.8%) of decedent structural metal workers had PFAS present but

not in use; the proportion of PFAS used but failed was also higher

in this occupation than for all fall decedents (66.7% vs. 28.6%). No

significant association between job tenure and PFAS use was found

from the analysis.

By construction subsector, about 70% of decedents in the residential construction industry and roofing, siding, and sheet metal

industries had no access to PFAS (Table 4). However, PFAS status

was unknown for 28% of decedents in residential construction.

Decedents in small establishments with 20 or fewer employees

were less likely to have access to PFAS (59%). Decedents in large

establishments (i.e., more than 200 employees) were more likely

to have access to PFAS; however, nearly 40% ofthose decedents had

access, but did not use it.

Examined by source of falls, PFAS was found to be unavailable

for 73.5% of decedents who fell from a roof edge, and for 66% who

fell through a roof surface, existing opening, or skylight (Table 5).

PFAS was not present or the status was unknown for 95% of ladder

falls. Just 4.7% of ladder falls were reported having PFAS present

and not in use compared to 23.1% for all falls combined. By location, fewer decedents at residential construction sites or residential

homes (i.e.,notnew construction)hadaccess to fallprotectioncompared to those at nonresidential construction sites. On residential

construction sites, none of the decedents were using PFAS when

the incident occurred. Some fall decedents at public buildings and

nonresidential construction sites were using PFAS, but PFAS was

either damaged, misused, or did not provide adequate protection.

When PFAS use was stratified by fall height, less than 16% of decedents who fell from more than 30 feet used PFAS (17 of 107), 41% of

those who fell from that height had access to PFAS but did not use

it, and another 37% did not even have access to PFAS. Among decedents who were working at the height <30 feet, only one worker

was using PFAS when the incident occurred. In fact, just 5.5% (18

cases) of fall fatalities occurred while wearing PFAS; 13 cases wore

PFAS but did not tie-off, and the rest of the cases were due to the

failure of PFAS (see footnote of Table 5).

4. Discussion

By analyzing the CFD, this study found that falls from over 30

feet accounted for more than one-third of fatal falls. Falls from

lower heights were also a fatality risk for workers—25% of fall

fatalities were from heights of 15 feet or less. The data showed

a higher proportion of fatal falls from heights of 15 feet or less

between 2004 and 2014 than in previous years, which may be

related to changes in OSHA regulations and NIOSH targets for FACE

over time (OSHA, 2010; NIOSH, 2016). Even though this study was

unable to assess effectiveness of the OSHA fall protection standard

established in 1995, the considerable number of fall fatalities from

lower heights provides strong evidence of the need for the OSHA

requirement that fall protection be provided at elevations of six

feet or more in the construction industry (OSHA, 1995b; 2010).

Although the triggering height of fall protection is six feet above

walking/working surface, PFAS requires a minimum clearance of

17.5 feet from anchor (i.e., 6-foot lanyard, 3.5-foot shock absorber,

5-foot surface to dorsal D-ring, 1-foot harness stretch, and 2-foot

safety factor). Therefore, a PFAS anchor point that is less than 15

feet from the lower level is not effective (Epp, 2007). One alternative for low height fall arrest is the self-retracting lifeline (SRL).

Allowing for stretch and the safety factor, the total fall distance to

allow for is between 5 and 7.5 feet. While fall fatalities from higher

heights frequently occurred among younger decedents, wage-andsalary workers, larger employers, and commercial construction

sites, deaths caused by falls from lower heights were more common

among older decedents, self-employed workers, smaller employers, and residential construction sites. While the information on

decedents’ job tenure is incomplete, among decedents who had

been on the job for just one week, 54% of all fatalities were from

falls. This suggests that providing adequate job and safety train-
Table 4

Personal Fall Arrest System (PFAS) status, selected characteristics.

Characteristics PFAS Status Total Falls

Present, in Use Present, not in Use Not Present Unknown

Percent Percent Percent Percent (Number) %

Total (18) 5.5% (75) 23.1% (176) 54.2% (56) 17.2% (325) 100%

Age

Less than 25 years 8.9% 22.2% 53.3% 15.6% (45) 100%

25–44 years 4.1% 26.0% 52.1% 17.8% (169) 100%

45–64 years 4.6% 21.6% 58.0% 15.9% (88) 100%

65+ years 0.0% 6.7% 66.7% 26.7% (15) 100%

Not reported 37.5% 12.5% 37.5% 12.5% (8) 100%

Employment Status

Wage-and-salary 6.5% 24.8% 52.5% 16.2% (278) 100%

Self-employed 0.0% 3.2% 67.7% 29.0% (31) 100%

Other 0.0% 31.3% 56.3% 12.5% (16) 100%

Occupation

Construction laborers, helpers 1.7% 13.3% 70.0% 15.0% (60) 100%

Structural metal workers 11.9% 54.8% 26.2% 7.1% (42) 100%

Supervisors, construction 0.0% 25.0% 55.0% 20.0% (40) 100%

Carpenters 2.9% 8.8% 55.9% 32.4% (34) 100%

Roofers 3.2% 12.9% 71.0% 12.9% (31) 100%

Other, n.e.c. 8.5% 22.9% 50.9% 17.8% (118) 100%

Job Tenure

Up to 1 week 8.3% 16.7% 52.8% 22.2% (36) 100%

> 1 week to 2 months 2.4% 26.2% 59.5% 11.9% (42) 100%

>2 months to 6 months 0.0% 24.2% 45.5% 30.3% (33) 100%

>6 months to 2 years 10.6% 25.5% 46.8% 17.0% (47) 100%

>2 years to 5 years 11.1% 25.0% 61.1% 2.8% (36) 100%

>5 years 0.0% 20.3% 56.5% 23.2% (69) 100%

Unknown/Not reported 8.1% 24.2% 54.8% 12.9% (62) 100%

Industry

General Building Contractors – Residential 0.0% 3.1% 68.8% 28.1% (32) 100%

General Building Contractors – Nonresidential 2.9% 25.7% 51.4% 20.0% (35) 100%

Roofing, Siding, & Sheet Metal Work 3.5% 12.1% 70.7% 13.8% (58) 100%

Structural Steel Erection 13.2% 44.7% 36.8% 5.3% (38) 100%

Special Trade Contractors, n.e.c. 3.4% 26.3% 47.5% 22.9% (118) 100%

Other, n.e.c. 13.6% 22.7% 56.8% 6.8% (44) 100%

Employer Size

Up to 20 employees 2.9% 18.6% 58.7% 19.8% (172) 100%

21 to 200 employees 6.0% 27.7% 47.0% 19.3% (83) 100%

More than 200 employees 9.1% 39.4% 51.5% 0.0% (33) 100%

Unknown/Not reported 13.5% 18.9% 51.4% 16.2% (37) 100%

ing is extremely important for construction workers, especially for

new workers.

While PFAS is not required when climbing portable ladders

under current standards (OSHA, 2014), this study revealed that

PFAS was not available or not in use for many fall decedents who

worked from heights of 16–30 feet, as well as for some of the decedents who fell from more than 30 feet. More than 70% (see Table 2)

of decedents in small establishments (i.e., 20 or fewer employees)

were working at heights of 16 feet or above when the incident

occurred, but PFAS was present or in use for just 22% (see Table 4) of

fall decedents in those establishments. In residential construction

as well as the roofing, siding, and sheet metal industries, more than

two-thirds of the decedents had no access to PFAS (see Table 4),

despite the factthatthe majority were working at heights of 16 feet

or above when the incident occurred (see Table 2). The small number of incidents that occurred while wearing PFAS suggests that fall

protection was effective, confirming the results from a recent case

study in residential construction (Bethancourt and Cannon, 2015)

and supporting OSHA fall protection requirements.

This study also found that PFAS was present but not in use for

about 23% of the falls. Nevertheless, the proportion of workers who

had access to, but did not use,fall protection has decreased in recent

years, indicating a growing awareness of fall hazards and effective

ways to prevent them, as well as increases in positive safety culture or leadership in construction. Previous research has shown 

association between a better safety climate and the use of fall pr

tection (Dutra et al., 2014; Kaskutas et al., 2013). Although PF

is effective, details from the FACE reports show that PFAS did n

provide adequate protection when used improperly. For examp

some workers had only one connection point and fell while d

connecting to relocate on a structure (Missouri FACE Investigati

#99MO138). PFAS should have “Y” or double lanyards to allow f

100% tie-off fall protection, so that workers who must move fro

one anchorage pointto another anchorage point connectto the ne

anchorage prior to disconnecting from the old. In other cases, wor

ers tie-offto other suspended objects instead of a proper anchora

point (NIOSH FACE Investigation #9820; Colorado FACE Investig

tion #92CO001) as required by OSHA Regulation 1926.502(d)(1

Finally, some PFAS were damaged or not properly engaged, a

were not adequately inspected prior to use (California FACE Inve

tigation #95CA016). These cases confirm that adhering to OSH

requirements would have saved lives. PFAS should not only be pr

vided to workers exposed to fall hazards, but must be inspect

before use, and workers must be trained on how to use the

correctly (OSHA Regulations 29 CFR 1926.502(d)(21) and 29 C

1926.503(a)(2)(iii)).

Workers in residential construction typically work on projec

below 30 feet, but the findings show that considerable risk 
Table 5

Case characteristics by Personal Fall Arrest System (PFAS) status.

Characteristics Personal Fall Arrest System Total Falls

Present, in Use Present, not in Use Not Present Unknown

Percent Percent Percent Percent (Number) %

Total (181) 5.5% (75) 23.1% (176) 54.2% (56) 17.2% (325) 100%

Type of Fall

Fall through floor opening/surface 0.0% 25.0% 58.3% 16.7% (24) 100%

Fall through roof surface, existing opening, or skylight 0.0% 22.6% 66.0% 11.3% (53) 100%

Fall from roof edge 6.1% 18.4% 73.5% 2.0% (49) 100%

Fall from scaffold, staging, building girders, or other structural steel 11.1% 34.4% 43.3% 11.1% (90) 100%

Fall from ladder 0.0% 4.7% 41.9% 53.5% (43) 100%

Fall to lower level, n.e.c. 7.6% 22.7% 51.5% 18.2% (66) 100%

Location

Nonresidential construction site 8.2% 25.4% 52.2% 14.2% (134) 100%

Residential construction site 0.0% 11.3% 64.2% 24.5% (53) 100%

Industrial places & premises 0.0% 25.0% 52.8% 22.2% (36) 100%

Residential home 2.9% 8.8% 76.5% 11.8% (34) 100%

Public building 10.7% 21.4% 46.4% 21.4% (28) 100%

Other, n.e.c. 7.5% 42.5% 35.0% 15.0% (40) 100%

Height of Fall

Less than 6 feet 0.0% 0.0% 57.1% 42.9% (7) 100%

6–15 feet 1.4% 5.4% 63.5% 29.7% (74) 100%

16–30 feet 0.0% 20.3% 60.9% 18.8% (128) 100%

More than 30 feet 15.9% 41.1% 37.4% 5.6% (107) 100%

1 About 13 decedents wore PFAS but did not tie-off.

fatality is possible at lower heights. None of the fall decedents in

the residential construction industry were using PFAS when the

incident occurred. This could be because workers on residential

construction sites often use portable ladders to access heights

and PFAS is not required in such cases. Many ladder falls could

be prevented if contractors and owners planned ahead for the

job; inspected and maintained ladders before use; verified proper

set up and use; and considered alternatives to ladders such as

aerial lifts and stairways. Additionally, employers should ensure

that each employee is properly trained and fully understands the

nature of fall hazards in the work area and the correct procedures

for using ladders and fall protection systems (Dong et al., 2014).

Furthermore, Teran et al. (2015) found that small contractors

perceive financial disincentives for implementing fall protection.

A survey study by Choi and Carlson (2014) showed that about

one-third of residential building contractors did not have any

form of safety programs. OSHA developed a series of resources

with strategies to improve adherence to fall protection in residential construction, which address the special needs of smaller

businesses (OSHA, 2015a). OSHA encourages small employers to

contact its On-site Consultation Program for free and confidential

occupational health and safety advice (OSHA, 2015c). Other efforts,

such as the National Safety Stand-Down, which is part of a broader

construction falls prevention campaign sponsored by OSHA,

NIOSH, and CPWR – The Center for Construction Research and

Training, was initiated in part to reach small employers, providing

a wealth of information on fall prevention, and available on websites hosted by OSHA, NIOSH, and CPWR (https://www.osha.gov/

SLTC/fallprotection/standards.html; www.cdc.gov/niosh/topics/

falls/; www.stopconstructionfalls.com).

The widely accepted hierarchy of fall prevention controls

emphasizes engineering controls as more effective than PFAS. Studies have shown that safety practices of construction workers cannot

mitigate all occupational hazards. Although PFAS is an important

element of fall protection,the first goal on construction sites should

be to eliminate fall hazards altogether. For example, guardrails

and toeboards to protect openings, skylights, and edges have been

proven effective for fall risk mitigation (Fullen and Savage, 2015;

Bobick et al., 2010). However, guardrails were not installed at most

of the fall incident sites in the FACE reports, and guardrail installation has been frequently recommended by FACE investigators

based on the event circumstances. According to OSHA construction industry regulation 29 CFR 1926.502 (Subpart M), one of the

conventional fall protection systems is guardrail systems comprising top edge, midrails, and toeboards (OSHA, 1995b). OSHA also

requires that “Each employee on walking or working surfaces shall

be protected from falling through holes (including skylights) more

than 6 feet (1.8 m) above lower levels, by personal fall arrest systems, covers, or guardrail systems erected around such holes” and

that “Each employee on a walking/working surface shall be protected from tripping in or stepping into or through holes (including

skylights) by covers” (OSHA, 1995a; 29 CFR 1926.501(b)(4)(i)).

These OSHA regulations are important to follow for effective fall

prevention.

More and more safety and health professionals have become

aware that Prevention through Design (PtD) can be one of the keys

to making construction projects safer (Rajendran and Gambatese,

2013). NIOSH’s PtD strategy intends to prevent or reduce falls

in construction through the inclusion of safety considerations in

the initial design. For example, identifying and mitigating hazards by incorporating safety features (e.g., guardrails, PFAS anchor

points) into the worksite or designing the permanent structure can

promote a safe work environment (NIOSH, 2014; Rajendran and

Gambatese, 2013; Dewlaney and Hallowell, 2012; Lingard et al.,

2013).

This study has several limitations. First, it should be noted

that the FACE program is not nationally representative since only

selected states participated. Also, individual states conduct fatality investigations according to self-identified state-level targets in

additionto the NIOSH targets. Therefore,the FACE investigationtargets do not necessarily represent all occupational fatalities covered

by occupational injury surveillance systems (e.g., CFOI). In addition, many cases occurred decades ago, and the reporting states

and number of cases also vary from year to year, as do the types of

fatalities targeted, and PFAS requirements over time. Therefore,this

study only provides characteristics from a subset of fall fatalities

in construction, and may not represent current worksite conditions. Moreover, several important data points are not included in

the analysis due to missing data. For example, information on Hispanic and foreign-born workers was only available in recent years.
Thus, no such demographic analysis could be conducted for this

study. Finally, the numeric format of the CFD is convenient for statistical analyses, but the contents of the CFD cannot completely

cover the rich information provided in each original, unique, and

detailed FACE report. Even if existing coding systems were used

where possible in the CFD, misclassifications may be present.

Despite the limitations, the information found in the FACE

reports describes the risk of fall fatalities under various circumstances, and sheds light on underutilized PFAS practices in the U.S.

construction industry, which can be used to inform further research

and targeted interventions. Future studies are needed to verify

these findings, including analyses of the recently available CFOI

data on heights of falls, and fall inspections in the OSHA inspection

databases.

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The construction FACE database — Codifying the NIOSH FACE reports☆

Xiuwen Sue Dong, a,

⁎ Julie A. Largay, a Xuanwen Wang, a Chris Trahan Cain, a Nancy Romano b

a CPWR – The Center for Construction Research and Training, 8484 Georgia Ave, Suite 1000, Silver Spring, MD 20910, USA b National Institute for Occupational Safety and Health, Division of Safety Research, 1095 Willowdale Rd, Room 1714, Morgantown, WV 26505, USA

article info abstract

Article history:

Received 9 November 2016

Received in revised form 24 March 2017

Accepted 21 June 2017

Available online 04 July 2017

Introduction: The National Institute for Occupational Safety and Health (NIOSH) has published reports detailing

the results of investigations on selected work-related fatalities through the Fatality Assessment and Control Evaluation (FACE) program since 1982. Method: Information from construction-related FACE reports was coded into

the Construction FACE Database (CFD). Use of the CFD was illustrated by analyzing major CFD variables. Results: A

total of 768 construction fatalities were included in the CFD. Information on decedents, safety training, use of PPE,

and FACE recommendations were coded. Analysis shows that one in five decedents in the CFD died within the

first two months on the job; 75% and 43% of reports recommended having safety training or installing protection

equipment, respectively. Conclusion: Comprehensive research using FACE reports may improve understanding of

work-related fatalities and provide much-needed information on injury prevention. Practical Application: The

CFD allows researchers to analyze the FACE reports quantitatively and efficiently.

© 2017 National Safety Council and Elsevier Ltd. All rights reserved.

Keywords:

Construction industry

Fatality assessment and control evaluation

Injury prevention and intervention

Occupational fatality

Workplace safety

1. Introduction

The construction industry has the highest number of work-related

fatal injuries in the United States. In 2015, 985 construction workers

died at worksites, accounting for 20.4% of the overall work-related

fatal injuries in the country (U.S. Bureau of Labor Statistics [BLS],

2016). These numbers are disproportionally high given that construction workers made up less than 7% of the overall total employment in

2015 (CPWR, 2017). Accurate surveillance and examination of contributing factors are necessary for effective injury prevention (Bunn,

Costich, & Slavova, 2006). However, few data sources contain information on detailed circumstances and situations leading up to and surrounding fatal injuries (Higgins, Casini, Bost, Johnson, & Rautiainen,

2001). Although the Census of Fatal Occupational Injuries (CFOI) provides a substantial amount of information on occupational fatalities, it

does not collect information on safety training, use of personal protective equipment (PPE), whether a malfunction or unsafe design of machinery or tools were involved in an incident, and how to avoid

similar incidents in the future.

To provide insight into work-related fatal injuries, the National Institute for Occupational Safety and Health (NIOSH) started the NIOSH Fatality Assessment and Control Evaluation (FACE) program in 1982, and

added the State FACE program in 1989 (https://www.cdc.gov/niosh/

docs/2017-145/). These programs have targeted varying types of events

for investigation over the years. For example, NIOSH is currently focusing FACE resources on investigating falls in construction, as well as

deaths involving machinery, and foreign-born workers, particularly

among states that do not have funding for the State FACE program. In

addition to investigating NIOSH targets, individual states conduct a limited number of investigations of fatalities related to state-level targets.

The FACE reports are the result of these extensive fatal injury investigations, combining information collected from the employer, coworkers,

safety personnel, emergency response crews, and other witnesses. In

addition to the decedents' demographic and employment information,

FACE collects information on the decedents' employers, such as whether

the employer had a safety program, provided safety training, PPE, and

much more. Such information is crucial for understanding the mechanisms by which fatalities occur (Bunn, Slavova, & Hall, 2008). FACE reports also provide detailed recommendations on how to avoid such

incidents based on information obtained during the investigations

(Higgins et al., 2001). These recommendations and detailed incident descriptions can be critical for injury prevention and interventions, including safety policies and procedures, engineering controls, and other

aspects of the safety climate (Menendez, Castillo, Rosenman, Harrison,

& Hendricks, 2012).

Since the FACE program was established, a number of case studies

have been generated from the FACE reports to highlight specific risks

Journal of Safety Research 62 (2017) 217–225

☆ Disclaimers: The findings and conclusions in this report are those of the author(s) and

do not necessarily represent the views of the National Institute for Occupational Safety and

Health. In addition, citations to websites external to NIOSH do not constitute NIOSH

endorsement of the sponsoring organizations or their programs or products. Furthermore,

NIOSH is not responsible for the content of these websites. All web addresses referenced

in this document were accessible as of the publication date.

⁎ Corresponding author.

E-mail address: sdong@cpwr.com (X.S. Dong).

http://dx.doi.org/10.1016/j.jsr.2017.06.017

0022-4375/© 2017 National Safety Council and Elsevier Ltd. All rights reserved.

Contents lists available at ScienceDirect

Journal of Safety Research

journal homepage: www.elsevier.com/locate/jsr
or policy implications (Hallman, Gelberg, & Hallisey, 2005; Morbidity

and Mortality Weekly Report (MMWR), 2001, 2004, 2012; NIOSH,

1990, 2006, 2007, 2010, 2011a, 2014). For example, a FACE report

about a fall from a “catch” platform in New Jersey led to an Occupational

Safety and Health Administration (OSHA) Letter of Interpretation, stating

that “catch” platforms must comply with OSHA's Scaffold Standard

(OSHA, 2009). Findings based on FACE reports also contributed to a

Massachusetts law protecting the safety and health of floor finishing

workers (NIOSH, 2011b). Several reports covered various aspects of

the Minnesota agriculture industry as well (Brown, Parker, Seeland,

Boyle, & Wahl, 1997; MMWR, 1993, 1996, 1998, 1999). In addition, a

few studies have applied FACE findings more broadly. These topics include tractors (Bunn et al., 2008), motor vehicle collisions (Bunn &

Struttmann, 2003), electrocutions in construction (Zhao, Thabet,

McCoy, & Kleiner, 2014), tree care operations (MMWR, 2009), younger

workers (Higgins, Tierney, & Hanrahan, 2002), and homicides (Harrison

& Gillen, 1996).

FACE reports are categorized by major industry on the NIOSH

website. Since 1982, the NIOSH and State FACE programs have investigated hundreds of work-related fatal injuries in the construction

industry, providing detailed information on the circumstances and recommendations to protect construction workers from similar incidents

occurring again. In order to efficiently explore specific information in

the FACE reports for the construction industry, the Construction FACE

Database (CFD) was developed using all NIOSH and State FACE reports

in construction posted to the NIOSH FACE website as of June 30, 2015.

Since FACE programs are ongoing and the annual counts are subject to

change, reports posted on the NIOSH FACE website after the cutoff

date are not covered by the CFD. To assist safety and health professionals who may use the CFD, this study describes the development

and major contents of the CFD, and provides examples of how to employ

the CFD for construction safety and health research. Considerations of

the CFD and future research applications are also discussed.

2. Materials and methods

Selected data from each construction-related FACE report were

manually entered into the CFD, including information on decedents,

their employers, type of injury, environment, and recommendations

(Appendix A). Information on safety equipment, safety programs, and

training was also included. The selected data items were coded using

coding systems available in 2000 when the CFD was first created. Occupation and industry were coded using the 1990 Census Occupational

Classification System (U.S. Department of Commerce, 1999) and the

1987 Standard Industrial Classification System (Office of Management

and Budget (OMB), 1987), respectively. The fatal incident details were

classified according to the BLS' Occupational Injury and Illness Classification System (BLS, 2007). While these classification systems have

been updated in recent years, changes related to the construction industry have been relatively minor. In order to maintain consistency and

ease usage of the CFD, the coding systems have remained the same

since inception.

A key element of the CFD is the compilation of FACE recommendations. Since a corresponding classification system is not available,

codes were created to categorize the narrative recommendations included in FACE reports (Appendix B). A two-digit classification schema

was developed to capture major categories as well as finer details for

each recommendation. The first digit designates the main categories:

Personal Protective Equipment (PPE; coded 1×), Equipment (2×),

Training (3×), Organizational (4×), and Violations (5×). The second

digit classifies more specific recommendations within each of the

major categories (e.g., 14 – Provide functional Personal Fall Arrest

System (PFAS); or 42 – Conduct Job Safety/Hazard Analysis). Detailed

recommendation codes are displayed in Appendix B.

The CFD was created in Microsoft Excel, and can be easily imported

to other statistical packages, such as SAS. Examples of analyzing the

CFD using SAS (version 9.4) and descriptive statistics from the analyses

are reported below.

3. Results

3.1. Trend analysis

The CFD includes 768 construction-related fatal injuries reported

by FACE, covering the fatalities that occurred from 1982 through 2014

(Fig. 1). While some investigations involved multiple fatalities, for analysis purposes, the CFD uses an individual death as the unit. According to

the CFD, about one-third (270) of the fatalities were reported by the

NIOSH internal FACE program and the remainder (498) by the State

FACE programs. The NIOSH FACE program peaked in 1988 with 38

fatalities. The highest number (53) reported by State FACE programs

was in 1998; making that year the highest reported total (64) for all

FACE programs.

State FACE programs were reduced shortly after 1998, leading to

fewer active State FACE programs. Since then, the number of annual

FACE reports has decreased. In June 2015, nine states were conducting

FACE programs — California, Iowa, Kentucky, Massachusetts, Michigan,

Fig. 1. NIOSH and State FACE reports in construction, by year.

(Source: NIOSH and State FACE Reports for Construction.)

218 X.S. Dong et al. / Journal of Safety Research 62 (2017) 217–225
New Jersey, New York, Oregon, and Washington, and 13 other states

previously participated in the FACE program (Fig. 2).

FACE data collection has improved significantly in many respects

over the years. For example, while age was only collected in 44% of

cases from 1982 to 1987, it was collected in 95% of cases in the most recent period (2008–2014; Table 1). Similarly, the collection of race and

foreign-born status jumped from 1.5% to more than 40% during the

same time period. Moreover, job tenure collection increased from 22%

to 89%, as did employer time in business (from 28% to 73%).

3.2. Descriptive analysis of decedents

Based on demographic information available in the CFD, nearly all

decedents were male (759). The mean age of construction decedents involved in a FACE investigation was 38 years, with 20 fatalities occurring

among minors under the age of 18 (Table 2). The youngest decedent

was only 13 years old. About half of all investigations involved fatalities

among those between the ages of 25 and 44 years. Geographically,

about 35% of all investigated fatalities occurred in the South, compared

to just 17% in the West. At least one fatality was investigated in 34

states; Massachusetts had the highest number of constructionrelated fatalities investigated (74), and California ranked the second

highest (69).

Employment information of the decedents is reported in Table 3.

Nearly one-quarter of the decedents were construction laborers or

helpers. Construction foremen accounted for the next largest occupational group of decedents. The majority of the decedents were wageand-salary workers (87%), and the rest were self-employed (9%) or

worked for a family business (4%). Job tenure information was available

for 570 (74%) of the decedents. The average job tenure was nearly five

years, but one in five decedents died during the first two months of

employment.

3.3. Analyzing decedents' employers

This analysis shows that the majority of employers (97%) were in the

private sector, and 45% were employers with 20 or fewer employees

(Table 4). By industry sector, 16% were general building contractors,

with 9% in nonresidential and 7% in residential, respectively. About

22% were in heavy construction, including 8% in highway and street

construction. More than half (53%) of the employers were in specialty

trades, such as the roofing, siding, or sheet metal industry (10%), electrical work (7%), and painting and paper hanging (5%). Additionally,

Fig. 2. Active and formerly active State FACE programs.

Note: These are reflective of the FACE States in June 2015.

(Source: State FACE website.)

Table 1

FACE reports in construction, number and percent of data completeness by time period, 1982–2014.

Characteristic 1982–1987

(Na = 68)

1988–1992

(N = 186)

1993–1997

(N = 218)

1998–2002

(N = 156)

2003–2007

(N = 103)

2008–2014

(N = 37)

Total

(N = 768)

n % n % n % n % N% n% n %

Age 30 44.1% 180 96.8% 217 99.5% 156 100.0% 97 94.2% 35 94.6% 715 93.1%

Race 1 1.5% 11 5.9% 16 7.3% 12 7.7% 35 34.0% 15 40.5% 90 11.7%

Foreign-born 1 1.5% 4 2.2% 9 4.1% 11 7.1% 31 30.1% 16 43.2% 72 9.4%

Employer time in business 19 27.9% 136 73.1% 170 78.0% 133 85.3% 82 79.6% 27 73.0% 567 73.8%

Job tenure 15 22.1% 130 69.9% 177 81.2% 133 85.3% 82 79.6% 33 89.2% 570 74.2%

Employer size 49 72.1% 163 87.6% 187 85.8% 139 89.1% 87 84.5% 34 91.9% 659 85.8%

Number of workers on injury site 54 79.4% 162 87.1% 192 88.1% 138 88.5% 86 83.5% 33 89.2% 665 86.6%

Using safety equipment 60 88.2% 129 69.4% 133 61.0% 93 59.6% 68 66.0% 29 78.4% 512 66.7%

Written safety plan 55 80.9% 158 85.0% 146 67.0% 122 78.2% 79 76.7% 29 78.4% 589 76.7%

Employer-provided job training 26 38.2% 106 57.0% 136 62.4% 113 72.4% 74 71.8% 33 89.2% 488 63.5%

a N represents the number of fatalities.

X.S. Dong et al. / Journal of Safety Research 62 (2017) 217–225 219
nearly 8% of the decedents were working on construction sites when the

injury occurred but were employed in a non-construction industry

(e.g., an electrician could be employed by a telephone company).

Employers had a written safety plan in 43% of cases, and provided job

training in 42% of cases. Such information was missing for many cases;

23% of cases did not have information about a written safety plan, and

37% did not have information regarding training.

3.4. Analyzing events, locations, and other circumstances of incidents

In terms of events, falls accounted for 42% (325) of all investigated

fatalities in construction (Table 5), of which nearly 17% were falls

from scaffolding or staging. Contact with electricity resulted in almost

18% of the total deaths, with nearly two-thirds of those from overhead

power lines. By location, more than one-third of the investigated fatalities occurred at nonresidential construction sites. Another 14% occurred

at new residential construction sites, and 11% at residential remodeling,

Table 2

FACE reports in construction, by demographic characteristics of decedents, 1982–2014.

Characteristic Number Percent

Age (Mean = 38 years)

b18 years 20 2.6%

18–24 years 106 13.8%

25–34 years 188 24.5%

35–44 years 187 24.4%

45–54 years 123 16.0%

55–64 years 66 8.6%

65+ years 25 3.3%

Unknown/not reported 53 6.9%

Sex

Male 759 98.8%

Female 8 1.0%

Not reported 1 0.1%

Race/ethnicity

White, non-Hispanic 17 2.2%

Hispanic 66 8.6%

Asian 7 0.9%

Unknown/not reported 678 88.3%

Foreign-born

Foreign-born 70 9.1%

Native-born 2 0.3%

Unknown/Not reported 696 90.6%

Geographic region

Midwest 204 26.6%

Northeast 165 21.5%

South 267 34.8%

West 129 16.8%

Not reported 3 0.4%

Total fatalities 768 100.0%

Table 3

FACE reports in construction, by employment characteristics of decedents, 1982–2014.

Characteristic Number Percent

Occupation

Construction laborers, helpers 186 24.2%

Foremen, construction 98 12.8%

Structural metal workers 61 7.9%

Equipment & machine operators 59 7.7%

Carpenters 55 7.2%

Electricians, power/phone line installers 51 6.6%

Roofers 40 5.2%

Painters 38 5.0%

Plumbers, pipefitters, & steamfitters 26 3.4%

Miscellaneous mechanics & repairers 18 2.3%

Truck drivers 18 2.3%

Construction, n.e.c. 100 13.0%

Other, n.e.c. 18 2.3%

Employment status

Wage-and-salary 666 86.7%

Self-employed 71 9.2%

Family business 29 3.8%

Volunteer 2 0.3%

Job tenure (Mean = 4 years, 10 months)

1 day 18 2.3%

2 days 17 2.2%

3–14 days 55 7.2%

N2 weeks to 1 month 26 3.4%

N1 month to 2 months 33 4.3%

N2 months to 6 months 71 9.2%

N6 months to 1 year 50 6.5%

N1 year to 2 years 55 7.2%

N2 years to 5 years 82 10.7%

N5 years to 10 years 72 9.4%

N10 years to 20 years 66 8.6%

N20 years 25 3.3%

Unknown/not reported 198 25.8%

Total fatalities 768 100.0%

Table 4

FACE reports in construction, by decedents' employer characteristics, 1982–2014.

Characteristic Number Percent

Employer ownership

Private ownership 744 97.1%

Federal, state, or local government 22 2.9%

Unknown/not reported 2 0.3%

Industry

Construction employer 698 90.9%

General building contractors 123 16.0%

General building contractors — nonresidential 70 9.1%

General Building Contractors — residential 53 6.9%

Heavy construction 167 21.8%

Highway & street construction, except elevated

highways

62 8.1%

Water, sewer, pipeline, & communications & power

line construction

51 6.6%

Heavy construction, n.e.c. 25 3.3%

Bridge, tunnel, & elevated highway construction 20 2.6%

Water well drilling 9 1.2%

Special trade contractors 408 53.1%

Roofing, siding, & sheet metal work 76 9.9%

Electrical work 54 7.0%

Structural steel erection 53 6.9%

Painting & paper hanging 41 5.3%

Special trade contractors, n.e.c. 37 4.8%

Carpentry & floor work 30 3.9%

Masonry, stonework, tile setting, & plastering 29 3.8%

Plumbing, heating & air-conditioning 27 3.5%

Excavation work 23 3.0%

Concrete work 22 2.9%

Wrecking & demolition work 9 1.2%

Installation or erection of building equipment, n.e.c. 7 0.9%

Non-construction employer 58 7.6%

Non-classifiable/not reported 12 1.6%

Employer size

1–10 employees 249 32.4%

11–20 employees 99 12.9%

21–50 employees 110 14.3%

51–200 employees 108 14.1%

More than 200 employees 93 12.1%

Unknown/not reported 109 14.2%

Employer time in business

≤1 year 23 3.0%

N1 year to 5 years 75 9.8%

N5 years to 10 years 83 10.8%

N10 years to 20 years 140 18.2%

N20 years to 30 years 101 13.2%

N30 years 145 18.9%

Unknown/not reported 201 26.2%

Written safety plan

Yes 331 43.1%

No 258 33.6%

Unknown/not reported 179 23.3%

Employer-provided job training

Yes 323 42.1%

No 165 21.5%

Unknown/not reported 280 36.5%

Total fatalities 768 100.0%

220 X.S. Dong et al. / Journal of Safety Research 62 (2017) 217–225
renovation, and demolition sites. Nearly 80% of the investigated fatalities transpired on jobsites with fewer than 10 workers. Safety equipment was used in less than 16% of cases. However, such information

was only available for two-thirds of cases.

3.5. Analyzing recommendations

FACE reports provide recommendations on a variety of issues. The

most common recommendations were related to Equipment (81%),

followed by Organizational matters (80%), Training (79%), and

PPE (35%; Table 6). Among the Equipment-related recommendations,

43% of reports suggested the installation of safety protection—more

than double the number of recommendations to provide functional

PFAS (21%; PPE major category). Within the Training category, three in

four cases recommended that employers provide safety training (e.g.,

CPR, how to handle an emergency, hazard recognition). For recommendations addressing Organizational issues, 40% suggested that employers

conduct a job safety/hazard analysis prior to beginning work, and 24% recommended that employers should ensure safe worksite conditions

(e.g., assessing if weather conditions are too dangerous to proceed with

work).

4. Discussion

This study describes the CFD development by codifying the NIOSH

and State FACE reports on construction fatalities spanning more than

30 years. Analyses using the CFD provide findings that may not exist

in the current literature. For example, demographic data from the CFD

shows that 20 construction deaths were identified among minors

under the age of 18. Because minors under the age of 18 are prohibited

from working in hazardous occupations such as roofing and trenching

(U.S. Department of Labor, 2010), this information may help to understand the issue of child labor at construction jobsites and highlights

the need to enforce federal and state child labor laws to protect this vulnerable group. While the information on decedents' job tenure is incomplete, the results indicate that a large number of decedents died

when they had just started a new job; one in five was killed within

the first two months on the job. Despite missing data on training, only

42% of decedents were found to have received job-related training (including formal and informal safety training). Factors related to safety

training could be further explored using the CFD.

Table 5

FACE reports in construction, by case event circumstances, 1982–2014.

Characteristic Number Percent

Event or exposure

Contact with objects and equipment 150 19.5%

Struck by/against object or equipment 74 9.6%

Caught in/compressed by equipment or objects 47 6.1%

Excavation or trenching cave-in 29 3.8%

Falls 325 42.3%

Fall through floor opening/surface 24 3.1%

Fall from ladder 43 5.6%

Fall through existing roof opening 22 2.9%

Fall through roof surface 13 1.7%

Fall through skylight 18 2.3%

Fall from roof edge 49 6.4%

Fall from scaffold, staging 54 7.0%

Fall from building girders, other structural steel 36 4.7%

Fall to lower level, n.e.c. 66 8.6%

Exposure to harmful substances or environments 161 21.0%

Contact with electric current or wiring, etc. 50 6.5%

Contact with overhead power lines 86 11.2%

Inhalation/depletion of oxygen in confined space 18 2.3%

Drowning, submersion 7 0.9%

Transportation accidents 105 13.7%

Collision accident 7 0.9%

Non-collision accident 39 5.1%

Pedestrian accident 59 7.7%

Fires and explosions 10 1.3%

Other, n.e.c. 17 2.2%

Location

Nonresidential construction site 262 34.1%

Residential construction site 106 13.8%

Home (home/apartment/farmhouse/n.e.c.) 83 10.8%

Industrial places & premises 77 10.0%

Road construction site 66 8.6%

Public building 51 6.6%

Street & highway 42 5.5%

Parking lot, garage 17 2.2%

Other, n.e.c. 56 7.3%

Unknown/not reported 8 1.0%

Number of workers on injury site

Working alone 42 5.5%

2 workers 164 21.4%

3 workers 119 15.5%

4 workers 97 12.6%

5 workers 73 9.5%

6–9 workers 99 12.9%

10–19 workers 42 5.5%

20–99 workers 24 3.1%

100+ workers 5 0.7%

Unknown/not reported 103 13.4%

Using safety equipment

Yes 119 15.5%

No 393 51.2%

Unknown/not reported 256 33.3%

Total fatalities 768 100.0%

Table 6

FACE report recommendations for construction, 1982–2014.

Recommendations Numbera

(n = 768)

Percent

Personal protective equipment 272 35.4%

Provide functional PPE 33 4.3%

Inspect PPE for functionality 2 0.3%

Enforce use of PPE 54 7.0%

Provide functional PFAS 158 20.6%

Inspect PFAS for functionality 9 1.2%

Enforce use of PFAS 130 16.9%

Equipment 618 80.5%

Provide proper equipment for the task 151 19.7%

Inspect equipment for functionality/condition 111 14.5%

Enforce proper use of equipment 158 20.6%

Install safety protection 327 42.6%

Prevention through design 122 15.9%

Other, n.e.c. 95 12.4%

Training 604 78.7%

Provide job training 94 12.2%

Provide safety training 574 74.7%

CPR training 19 2.5%

Provide training in a language the employee can understand 44 5.7%

Train local emergency medical services on worksite safety 28 3.7%

Other, n.e.c. 3 0.4%

Organizational 613 79.8%

Develop safety checklist 17 2.2%

Conduct job safety (hazard) analysis 307 40.0%

Ensure safe worksite conditions 186 24.2%

Improve employer awareness 74 9.6%

Verify employee qualifications for the job 55 7.2%

Designate competent worksite safety monitor 153 19.9%

Establish clear communication system 101 13.2%

Enforce safety requirements of subcontractors 41 5.3%

Other, n.e.c. 148 19.3%

Violations 31 4.0%

Enforce child labor laws 21 2.7%

Heavier/successive penalties for violations 7 0.9%

Other, n.e.c. 3 0.4%

Other, n.e.c. 1 0.1%

Note: Investigators could provide multiple recommendations per report, therefore, totals

do not add to 100%.

a Number refers to the number of fatalities.

X.S. Dong et al. / Journal of Safety Research 62 (2017) 217–225 221
Information on PPE or PFAS use is particularly valuable since such information is not collected in most data sources. The findings suggest

that just 16% of decedents were using safety equipment at the time of

the incident. Some FACE reports provide a detailed list of what the

decedent was using or wearing when the incident occurred (e.g., hard

hat, work gloves, work boots, reflective vest), and some describe

whether the available PPE or PFAS was actually in use during the incident (e.g., the employer had PFAS in the truck, but the decedent was

not wearing it). However, the current CFD only includes whether safety

protection was used or not, and does not classify protection in detail

(original FACE reports may be referenced if more information is

needed).

The CFD can also be used to examine a specific event for fatalities. The

largest proportion of investigated fatalities in construction was fallrelated, accounting for 42% of the decedents, reflecting that falls are a priority of construction safety for NIOSH targets (NIOSH, 2008). A study addressing fall fatalities (including PFAS use and availability) using the CFD

has been published (Dong et al., 2017). Other common events in construction, such as Exposure to Harmful Substances or Environments, or

Contact with Objects and Equipment, could be examined in future research using the CFD.

Perhaps the most important element of the CFD is the FACE

recommendations. The findings show that roughly three-quarters of

reports included a recommendation for employers to provide safety training, and 43% recommended installing safety protection equipment.

Conducting a job safety/hazard analysis (40%) and ensuring safe worksite

conditions (24%) were also frequently recommended. Although the findings may not be representative of the entire construction industry,

implementing these recommendations prior to beginning work may mitigate the risk of similar incidents in the future. Further detailed analysis of

the recommendations captured in CFD could also be conducted to assess

the impact of implementation.

While the CFD provides an easy way to analyze FACE reports, it only

contains selected information within the construction industry. FACE

reports are also not nationally representative because they are related

to pre-selected targets and are voluntarily reported by participating

states. In addition, the FACE program started more than 30 years ago,

thus findings generated from the CFD may not reflect the conditions

on current construction sites. Moreover, a large number of cases in

the CFD have some missing data. For example, some demographic

data points were only available in recent reports. Therefore, a detailed

analysis on Hispanic or foreign-born workers is not suggested

based on the current CFD version. Moreover, despite significant improvements in FACE reports, some information is still incomplete,

such as safety training and use of safety equipment. A more detailed

checklist for future FACE investigations could be helpful in evaluating

and interpreting incidents. The CFD can be updated as more information

is available.

Given the above considerations, the CFD may allow researchers to

analyze the FACE reports quantitatively and efficiently. The CFD in

Excel and its codebook in PDF format will be available on the NIOSH

FACE website in the near future as a free download for interested

parties. Comprehensive research using FACE reports may improve our

understanding of work-related fatalities and provide much needed information on strategies for the prevention of future incidents.

Funding source

This study was funded by the U.S. National Institute for Occupational

Safety and Health (NIOSH) grant U60OH009762.

Acknowledgements

The authors are grateful to Michael A. Fiore, Mark Fullen, Paul Moore,

John Myers, Audrey Reichard, and Christine Schuler for their review and

valuable comments on this manuscript.

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Appendix A. FACE database variables (Appendix A)

# Variable Information

Decedent characteristics

1 Case Type (NIOSH or State) N = NIOSH

S = State

2 Record ID

3 State Two letter abbreviation

4 Age In years

5 Gender 1. Male

2. Female

6 Race/ethnicity 1. White, non-Hispanic

2. Black, non-Hispanic

3. Hispanic

4. Asian

5. Native American

6. Other

7. Unknown/not reported

7 Foreign-born (FB) 1. Yes

2. No

3. Unknown/not reported

8 Occupation (OCCUP) 1990 Census Code

9 Employee status (ES) 1. Wage-and-salary

2. Self-employed

3. Family business

4. Volunteer

5. Not reported

10 Time with employer (TWEY) Years

Months

Days

Employer characteristics

11 Industry (SIC) SIC

12 Ownership (OWNER) 1. Federal government

2. State government

3. Local government

4. Foreign government

5. Other government

6. Private ownership

13 Time: employer has been in

business (TEIB)

In years

14 Establishment size (SIZE) Number of employees

15 Written safety plan/program/

procedure (WSP)

1. Yes

2. No

3. Unknown/not reported

16 Provide job training (PJT) 1. Yes

2. No

3. Unknown/not reported

Injury/incident

17 Injury date Month (IM)

Day (ID)

Year (IY)

18 Nature of injury (NOI) OIICS 2007

19 Part of body (POB) OIICS 2007

20 Source of injury (SOI) OIICS 2007

21 Event or exposure (EOE) OIICS 2007

(continued on next page)

X.S. Dong et al. / Journal of Safety Research 62 (2017) 217–225 223
Appendix A (continued)

# Variable Information

22 Activity 1. Vehicular & transportation operations

2. Using/operating tools, machinery

3. Constructing, repairing, cleaning

4. Materials handling

5. Physical activities, n.e.c.

6. Unknown/Not reported

23 Height of fall (Fall_feet) In feet

Environment

24 Location 1. Nonresidential construction site

2. Residential construction site

3. Home (home/apartment/

farmhouse/n.e.c.)

4. Industrial places & premises

5. Road construction site

6. Public building

7. Street & highway

8. Parking lot, garage

9. Other, n.e.c.

10. Unknown/not reported

25 Number of workers injured in the

event (excluding decedent) (NOWIIE)

Number of employees

26 With SAFETY EQUIPMENT (WSE) 1. Yes

2. No

3. Unknown/not reported

27 What protection (e.g., fall protection) (WP) Protection type

28 Fall protection (PFAS) 1. Present and in use

2. Present but not in use

3. Not present

4. Unknown/not reported

FACE report recommendations

29 Report recommendations See Appendix B

30 PFAS recommended (PFAS_Rec) 1. Yes

2. No

Appendix B. FACE recommendation categories (Appendix B)

B.1. Personal protective equipment (PPE – e.g., hard hat, gloves, PFAS or harness/lanyard)

11. Provide functional PPE (e.g., the employer did not provide, or provided inadequate or faulty PPE, NOT PFAS)

12. Inspect PPE for functionality (e.g., when PPE failed)

13. Enforce use of PPE

14. Provide functional PFAS (e.g., the employer did not provide, or provided inadequate or faulty PFAS)

15. Inspect PFAS functionality (e.g., when PFAS failed)

16. Enforce use of PFAS

19. Other

B.2. Equipment

21. Provide proper equipment for the task

22. Inspect equipment for functionality/condition (e.g., in cases with faulty lifts, broken seatbelt or backup alarm, worn labels that are illegible, damaged boards used as scaffold planks)

23. Enforce proper use of equipment

24. Install safety protection (e.g., guardrails, nets, alarms, warning signs)

25. Prevention through design (e.g., safety features added by manufacturer to equipment, safer design of worksite)

29. Other

B.3. Training

31. Provide job training (does NOT include safety training, but if both are mentioned, use both 31 and 32)

32. Provide safety training (includes ensuring employee awareness of safe work procedures)

33. CPR training (Cardiopulmonary resuscitation)

34. Provide training in a language the employee can understand

35. Train local emergency medical services on safe worksite practices and rescue procedures prior to incident (e.g., when and how to enter a trench

in case of collapse)

39. Other

224 X.S. Dong et al. / Journal of Safety Research 62 (2017) 217–225
Xiuwen Sue Dong, DrPH, is Data Center Director for CPWR — the Center for Construction

Research and Training. She currently serves as PI of several research projects funded by the

U.S. National Institute for Occupational Safety and Health (NIOSH). Dong is the lead author

of many publications. Her research covers multiple issues in occupational safety and

health, focusing on construction workers. She has a doctoral degree in Public Health from

the George Washington University and a master's degree in labor economics from the

University of Massachusetts, Amherst.

Julie A Largay received her MPH in Epidemiology from the GeorgeWashington University,

and her bachelor degree in Economics from the University of Virginia, Charlottesville. She

has five years of experience in occupational health research and extensive rich knowledge

of numerous data sources available both publicly and privately.

Xuanwen Wang, Ph.D., is Senior Research Associate at CPWR- the Center for Construction

Research and Training. She received her Ph.D. in Economics from Clemson University. She

currently works on construction safety and health surveillance, and several other NIOSH

funded projects. She has seven years of experience in occupational health research and

extensive rich knowledge of numerous data sources available both publicly and privately.

Chris Trahan Cain, CIH, is Executive Director of CPWR —The Center for Construction

Research and Training. She manages operations of the construction research, training,

and service programs funded by federal agreements, grants, and contracts. She also

manages relationships with CPWR's external partners in the Building Trades Unions,

non-construction unions, the larger safety and health construction community, and

government partners. She leads CPWR staff in finding synergies among departments in

order to capitalize on programs funded by different federal grants. She has been working

in construction safety and health on behalf of NABTU for over 20 years.

Nancy Romano, MS, is a Safety and Occupational Health Specialist with the National Institute for Occupational Safety and Health (NIOSH), Division of Safety Research, Surveillance

and Field Investigations Branch, Field Investigations Team in Morgantown West Virginia,

and is the Project Officer for the NIOSH Fatality Assessment and Control Evaluation (FACE)

Program. Nancy has been with NIOSH since 1999. Nancy has a Master of Science in Safety

Management and is a Certified Safety and Health Manager (CSHM). Nancy is a NIOSH

Construction Sector Program, Steering Committee Member and previously served as the

Assistant Coordinator for 5 years.

B.4. Organizational

41. Develop safety checklist

42. Conduct job safety (hazard) analysis

43. Ensure safe worksite conditions (e.g., barricade area below overhead work, restrict roof work during high winds)

44. Improve employer awareness (e.g., become familiar with available resources on safety standards and safe work practices, monitor workers for

signs of alcohol and drug use)

45. Verify employee qualifications for the job (e.g., employee has proper training or certifications for equipment operation or task performance)

46. Designate competent person for worksite safety monitoring

47. Establish clear communication system (e.g., spotters, 2-way radios, signal person)

48. Enforce safety requirements of subcontractors (e.g., subcontractors must provide general contractors with written comprehensive safety

program)

49. Other

B.5. Violations

51. Enforce child labor laws

52. Disciplinary procedures for non-cooperation

59. Other

B.6. Other

999. Other (not under any major categories)

X.S. Dong et al. / Journal of Safety Research 62 (2017) 217–225 225
DATA 

WWW.CPWR.COM Quarterly SECOND QUARTER 2015 REPORT

Temporary Workers in the Construction Industry

CPWR Data Center: Xiuwen Sue Dong, DrPH, Xuanwen Wang, PhD, and Julie A. Largay, MPH

KEY FINDINGS

• Temporary help services in 

the U.S. significantly 

increased since the 

economic recovery, and 

temporary employment 

grew in construction as well.

• Temporary construction 

workers were younger, more 

often Hispanic (43%) or 

foreign-born (41%), and had 

no high school degree (48%) 

compared to regular 

workers.

• About 75% of temporary 

construction workers were 

employed in small 

establishments with 10 or 

fewer employees.

• The wage rate for temporary 

construction workers was 

24% lower than that for 

regular workers.

• More than half of temporary 

construction workers did not 

have health insurance, and 

another 12% received public 

insurance coverage.

• Temporary construction 

workers had higher job 

exposures and more 

concerns about unemployment than regular workers.

In today’s economy, more businesses use temporary workers to quickly 

and effi ciently address changing labor needs (GAO, 2015). Temporary 

workers, often referred to as “temps,” are easily hired when demand 

increases, and laid off when demand decreases, which is perceived to be 

a result of employers’ desire to reduce labor costs (Luo et al., 2010). 

Temporary workers are more vulnerable to workplace safety and health 

hazards and retaliation from employers than workers in traditional 

employment arrangements since they are often not given adequate safety 

and health training (OSHA, 2015). Despite the importance of worker 

safety and health, information on temporary workers in the construction 

industry is scarce. To provide insights for the development of 

construction safety and health interventions, this report profi les 

temporary workers in the construction industry, including the overall 

trends for “temps,” worker demographics, employment experiences, job 

exposures, and income and fringe benefi ts.

Note: Chart 1 - See page 2 for description.

Source: U.S. Bureau of Labor Statistics, 2003-2014 Current Employment Statistics. Calculations by the 

 authors.

1. Percent change in employment, 2003-2014

 (Seasonally adjusted: private wage-and-salary workers)
DATA REPORT 12

Second Quarter 2015

www.cpwr.com

18. Job exposures in construction, temporary vs. regular workers, 2010

SECTION 5: Job Exposures and Employment Security

Temporary workers3 appeared more likely to experience occupational hazards than regular workers. In 2010, over 84% of temporary construction workers performed outdoor work at least twice 

a week compared to 70% of regular workers (Chart 18). Furthermore, 57% of temporary workers 

reported exposure to vapors, gas, dust, or fumes at least twice a week, which was higher than 49% 

of regular workers. Temporary workers were also more likely to have skin contact with chemical 

substances than regular workers (38% vs. 30%, respectively). 

Temporary Workers in the Construction Industry

3

Defi nition from the Occupational Health Supplement to the National Health Interview Survey (NHIS-OHS): 

Respondents who answered “yes” to the following question:“Some people are in temporary jobs that last only for 

a limited time or until the completion of a project. [Is your/Was your] job temporary?” The NHIS sample includes 

adults aged 18+ years who are currently employed or were employed at some point in the past 12 months.

Source: 2010 Occupational Health Supplement to the National Health Interview Survey. Calculations by the 

authors.
CERTIFICATE OF SERVICE 

 I hereby certify that on May 14, 2018, I served a copy of the foregoing Brief for Amicus 

Curaie North America’s Building Trades Unions through the E-file system on the following 

counsel of record: 

 Scott Gladman 

 U.S. Department of Labor, Office of the Solicitor 

 200 Constitution Avenue, N.W. 

 Washington, D.C. 20210 

 (202) 693-5493 

 Glabman.Scott@dol.gov

 Robert Dunlevey 

 Taft, Stettinius & Hollister 

 40 North Main Street, Suite 1700 

 Dayton, Ohio 45423 

 (937) 228-2838 

 rdunlevey@taftlaw.com 

 Arthur G. Sapper, Esq. 

Melissa A. Bailey, Esq. 

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 

Suite 1000 

1909 K Street NW 

Washington, D.C. 20006 

(202) 263-0270 

arthur.sapper@ogletree.com 

Cynthia L. Rice 

CALIFORNIA RURAL LEGAL ASSISTANCE, INC. 

1430 Franklin Street, Suite 103 

Oakland, CA 94612 

(510) 267-0762 

crice@crla.org 

Javier J. Castro 

CALIFORNIA RURAL LEGAL ASSISTANCE, INC. 

145 East Weber Avenue 

Stockton, CA 95202 

(209) 946-0605 

jcastro@crla.org 

 
Ronald J. Melton 

CALIFORNIA RURAL LEGAL ASSISTANCE, INC. 

449 Broadway Street 

El Centro, CA 92243 

(760) 353-0220 

rmeltonrZ?crla.org 

Victona L. Bor 

Sherman Dunn, P.C. 

900 Seventh Street, N.W., Suite 1000 

Washington, D.C. 20001 

Phone: (202) 785-9300 

Fax: (202) 775-1950 

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