The New York region has experienced some of the worst air quality in the world as a result of the recent Canadian wildfires that continue to rage out of control, something weather forecasters believe will become more common as a result of global warming. Among the industries that are most affected by this dangerous atmospheric situation is the construction industry, whose workers are uniquely at risk.^[1] The wildfires are leaving the air thick with smoke and tiny particulate matter 2.5, or PM2.5.^[2] Construction employers should follow lessons learned from their West Coast counterparts, and take care while operating in smoky conditions to prevent bad press and legal liability.^[3]

Health and Safety Hazards Arising from Outdoor Work in a Dangerous Atmosphere

The presence of PM2.5 at an Air Quality Index (AQI) level over 150 is unhealthy for all individuals.^[4] Exposure can cause, or exacerbate, heart and lung issues like coughing, wheezing, bronchitis, and heart failure.^[5] Individuals with asthma, COPD, or heart disease, or who are pregnant must take special care to prevent serious injury.^[6]

OSHA General Duty Clause

OSHA includes a General Duty Clause, and employers can be cited if "a recognized serious hazard exists in their workplace and the employer does not take reasonable steps to prevent or abate the hazard."^[7] Four elements are necessary for an event to be considered a violation:

1. the employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
2. the hazard was recognized;
3. the hazard was causing or was likely to cause death or serious physical harm; and
4. there was a feasible and useful method to correct the hazard.^[8]

To avoid violating the OSHA General Duty clause, construction-industry employers should consider providing respirators to employees working outside in smoky conditions, following the California OSHA recommendations for wildfires.^[9] Other interventions, like lowering employee exposure by locating work inside or regularly rotating employees through areas with filtered air to reduce work time while exposed, may also be sufficient for hazard correction.^[10] Employers should prioritize providing accommodations for particularly sensitive individuals who are more likely to suffer severe injury from exposure.

Weather-Induced Delay and Force Majeure Clauses

Construction companies should also double-check the force majeure clauses in their contracts. Delay caused by inability to work or lowered productivity resulting from the smoke may be considered a force majeure event, or an "act of God," but companies should make sure to follow the contractual language when notifying owners, contractors, or others. Companies should pay particular attention to whether a force majeure clause in a contract specifically outlines qualifying events, or minimum extent of harm. Owners and developers should likewise respond to reasonable requests for such force majeure claims.

* The authors would like to thank Summer Associate Samantha Cristol for her assistance writing this article.

[1] https://www.cnn.com/2023/06/06/us/new-york-air-pollution-canada-wildfires-climate/index.html

[2] https://www.cnn.com/2023/06/06/us/new-york-air-pollution-canada-wildfires-climate/index.html and https://www.airnow.gov/?city=New%20York&state=NY&country=USA

[3] https://www.wired.com/story/construction-workers-toil-away-in-san-franciscos-toxic-air/

[4] https://www.dir.ca.gov/title8/5141_1b.html

[5] https://www.dir.ca.gov/title8/5141_1b.html

[6] https://www.cdc.gov/disasters/wildfires/duringfire.html

[7] https://www.osha.gov/laws-regs/standardinterpretations/2003-12-18-1#:~:text=Employers%20can%20be%20cited%20for,applies%20to%20the%20particular%20hazard.

[8] https://www.osha.gov/laws-regs/standardinterpretations/2003-12-18-1#:~:text=Employers%20can%20be%20cited%20for,applies%20to%20the%20particular%20hazard.

[9] https://www.dir.ca.gov/title8/5141_1b.html

[10] https://www.dir.ca.gov/title8/5141_1b.html