| Action | NOIRA for Heat Illness Prevention Standard |
| Stage | NOIRA |
| Comment Period | Ended on 9/23/2026 |
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Dear Members of the Department of Labor and Industry:
On behalf of the Virginia Asphalt Association and its 125 member companies representing Virginia’s asphalt industry and businesses engaged in highway construction and maintenance, we appreciate the opportunity to comment on the development of the Heat Illness Prevention Standard.
Heat illness is a serious concern for our members. Employees are our companies’ most important asset, and without a healthy and capable workforce, our businesses cannot operate. Virginia’s paving and highway-construction employers already take practical steps to protect employees working in hot environments, including providing drinking water and other suitable fluids, training, access to air-conditioned equipment, and rest opportunities when conditions require them.
At the same time, asphalt paving and highway construction involve unique working conditions that should be considered in developing the regulation. Paving operations frequently occur during both daytime and nighttime hours, often when temperatures exceed 80 degrees Fahrenheit. Most of our members’ work is performed in the late spring, summer, and early fall, when heat indices commonly exceed 80 degrees.
Outdoor road construction is also constrained by limited site access, limited worksite footprints, and the perishable nature of hot-mix asphalt. A typical work zone may extend for 2 or more miles along a limited-access roadway, with restricted access and egress. Asphalt paving is a continuous, linear process that moves along the roadway at only a few miles per hour. Unlike many other types of construction, paving generally cannot be stopped and restarted without potentially affecting the quality and durability of the finished pavement.
Because asphalt mixtures must be maintained at elevated temperatures—approximately 270 degrees Fahrenheit in many operations—the material must be placed promptly by relatively small crews, often consisting of fewer than a dozen equipment operators, flaggers, and laborers. Work is typically conducted within a public right-of-way, sometimes occupying only one or two roadway lanes with limited shoulders or additional space. These conditions must be managed alongside other significant hazards, including heavy equipment, moving traffic, distracted drivers, and the need to maintain safe traffic control.
These operational realities make periodic, fixed, and simultaneously scheduled breaks impractical in many paving operations. VDOT specifications generally require continuous paving to avoid transverse joints, bumps, and dips in the finished pavement. Interruptions can reduce ride quality, shorten pavement life, increase costs to highway users, and contribute to higher vehicle emissions. Nevertheless, our industry provides regular short work breaks, monitors employees, and can accommodate emergency situations. In many cases, a supervisor’s vehicle or other equipment with air conditioning is located nearby or can arrive promptly to provide relief.
Accordingly, we oppose universal, prescriptive requirements imposed identically on every employer and worksite. We instead support clear, performance-based protections that allow each employer to develop a site-specific Heat Illness Prevention Plan for DOLI approval. Such plans could satisfy the requirements of § 40.1-44.2—including provisions addressing water, rest, shade or climate-controlled relief when practicable, acclimatization, training, emergency response, and appropriate rest—while recognizing the substantial differences among workplaces, operations, weather conditions, equipment, workloads, and individual circumstances.
Our industry is capable of managing appropriate water and rest practices for outdoor road-construction employees. Employers can provide adequate drinking water and other suitable fluids, train employees and supervisors to recognize and respond to heat-related symptoms, and provide rest and cooling opportunities based on the conditions of the worksite and the demands of the task.
We encourage DOLI to allow employers flexibility in how those protections are provided. Rest opportunities should be based on actual conditions, including the heat index, workload, clothing and personal protective equipment, acclimatization, work intensity, and the availability of nearby air-conditioned vehicles or equipment. A rigid requirement that all employees stop work for identical, fixed-duration breaks at predetermined times would not account for the realities of continuous paving or the safety risks associated with stopping operations in an active roadway work zone.
A flexible approach can provide necessary heat relief without unnecessarily disrupting continuous paving operations. Employees can take staggered or short-duration breaks, and supervisors can adjust work assignments and relief measures as conditions change. Emergency situations should always be addressed immediately, without regard to a scheduled break period.
Shade may be available from trees, nearby structures, equipment canopies, or air-conditioned vehicles at some projects. However, natural shade is generally unavailable along interstates and other major highways. Erecting artificial shade may also be impractical, unsafe, or prohibited in a public right-of-way. For example, shade tents or large umbrellas may become airborne or create additional hazards where vehicles are traveling at highway speeds and where work areas are confined.
For these reasons, the regulation should recognize effective shade alternatives that provide equivalent or greater cooling benefits. Some employees can obtain relief in air-conditioned equipment or vehicles, while others work directly in the heat and require measures tailored to the worksite, weather, equipment, workload, and individual circumstances.
We urge DOLI to evaluate and expressly permit cooling measures that reduce metabolic heat load as effectively as traditional artificial shade. The important consideration should be the effectiveness of the cooling method—not whether relief is provided under a particular physical structure. Performance-based requirements would allow employers to use practical alternatives, including climate-controlled equipment or vehicles and other proven cooling methods, when conventional shade is unavailable or unsafe.
A site-specific Heat Illness Prevention Plan would allow employers to address the particular conditions of each project. Such a plan could identify:
This approach would protect employees while allowing employers and DOLI to evaluate practical and effective measures tailored to actual conditions. It would also avoid placing employers in the position of choosing between compliance with a rigid break requirement and the need to maintain safe traffic control, protect workers from moving vehicles and equipment, or preserve the quality of the pavement being placed.
Our members share the Commonwealth’s goal of preventing heat illness and are committed to protecting employees who work in hot environments. We respectfully request that DOLI adopt a flexible, performance-based standard that recognizes the unique conditions of asphalt paving and highway construction; permits site-specific Heat Illness Prevention Plans; allows effective shade and cooling alternatives; and avoids fixed break periods that are incompatible with continuous paving operations.
The Virginia Asphalt Association stands ready to work with DOLI and the advisory panel to develop a standard that fulfills the law’s intent, protects employees, and remains feasible for Virginia’s highway-construction industry.
Thank you for your consideration.