The Virginia Transportation Construction Alliance (VTCA) is pleased to submit comments in response to the Notice of Intended Regulatory Action issued by the Department of Labor and Industry and the Safety and Health Codes Board regarding the development of regulations required by Chapters 731 and 732 of the 2026 Acts of Assembly. VTCA represents the highway contractors, civil engineers, and aggregate producers who design, build, and maintain Virginia’s roads and bridges, principally under contract with the Virginia Department of Transportation (VDOT). As an industry whose workforce is exposed to direct sun and radiant heat from asphalt and concrete throughout the construction season, VTCA has a direct interest in ensuring this rulemaking results in a standard that protects workers and can be consistently and practically applied.

The transportation construction industry takes heat illness prevention seriously. No contractor wants a worker to suffer a heat-related injury on the job, and a hydrated, rested, and well-trained workforce is also a safer and more productive one. Our members already provide water, shade, rest, and training as standard practice on job sites. We therefore urge the development of standards that reflect how highway construction is actually performed: continuously, outdoors, and along a jobsite that moves rather than at a single fixed location. A standard modeled on a fixed indoor worksite will not, without adaptation, be feasible for a paving crew advancing through a live work zone. Furthermore a rule that is difficult to follow in the field will not achieve the Board’s protective purpose.

I.  Work That Moves: Performance-Based Compliance for Linear, Mobile Worksites

Section 40.1-44.2(B)(i) requires each employer to provide water, access to shade or a climate-controlled environment when practicable, rest periods, acclimatization, and effective training, without prescribing how those requirements must be met. We respectfully urge the Board to preserve and reinforce that flexibility.

Shade at a fixed plant is different from shade on a paving crew that advances several hundred feet over the course of a shift, inside an active road work zone. Our members already meet the intent of the statute through means suited to that environment: air-conditioned cabs and enclosed equipment, crew vehicles used for rotation, and portable canopies where site conditions allow.  A regulation that recognizes these measures, and their functional equivalents, as compliant will do more for worker safety than one that prescribes a single fixed cool-down area sized for an entire crew.

Tents and canopies are not only not always safe to erect, but in many rights-of-way are not allowed beside live traffic or on bridge decks. Requiring workers to walk a long distance to reach shade can do more harm than good when the exertion required to get to and from the shaded site contributes to overall heat exertion and exposure. Highway crews already operate under VDOT work zone traffic control requirements designed to protect both workers and the traveling public; where a heat rule provision would conflict with those requirements, we respectfully urge the Board to let traffic control govern.

Paving and concrete placement present a related issue. These operations generally cannot be paused for an entire crew at a fixed interval without disrupting the work and, in some cases, creating new safety concerns of their own. A requirement that rest be available on an individual, staggered basis, rather than as a simultaneous crew-wide break, will achieve the same protective purpose without interfering with work that cannot simply be stopped and restarted.

II.  Setting Thresholds That Reflect Virginia’s Climate and Outdoor Work

Section 40.1-44.2(B)(ii) directs the Board to set the temperature thresholds that trigger heat and high-heat procedures. Our members work outdoors nearly every day. Generic triggers for the heat standard provision to “kick-in” do not make sense because workers have different levels of acclimatization depending on the location in which they work. A baseline threshold set too low would make routine summer conditions, rather than genuinely elevated risk, the trigger for compliance obligations, and would do so for much of the year in Virginia. We respectfully urge a two-tier structure in which the two tiers do meaningfully different work: light, low-cost performance measures, such as water, shade access, rest, and training, at the baseline threshold, and the enhanced performance measures, such as scheduled rest and increased monitoring, reserved for the high-heat tier. Our members already provide these controls as a baseline, by making them performance based, rather than prescriptive, employers and employees can remain involved in the process and able to make the best decisions for themselves and their individual scenarios. The Board should also recognize that heat index, a shade-based calculation, can understate the radiant heat load coming off fresh asphalt and concrete; we respectfully urge the Board to accept on-site wet-bulb globe temperature readings as an alternative measurement and to credit employers who already monitor conditions this way.

III.  Preserving Practicability and Proportionate Compliance

The statute conditions the shade and climate-controlled environment requirement on what is “practicable,” a standard that appropriately recognizes that employers have varying degrees of control over their working conditions. That term is undefined in the statute, however, and we respectfully urge the Board to define it with reference to operational feasibility given the nature and location of the work, cost relative to the employer’s resources, and the availability of alternatives that achieve the same protective purpose. For highway work, we would add site safety, including exposure to traffic, as a relevant factor. To be clear, our members have consistently stated that they do not put a price on the safety of their workers. They do however, need flexibility to employ the best control measures for the particular jobsite. As previously mentioned, some of the prescribed control measures the Board is contemplating are simply infeasible for active road work and would create potential cost overruns if employers were required to comply with them.

The same principle should guide recordkeeping. A written heat illness prevention plan and training records support enforcement without creating unnecessary paperwork. By contrast, requiring employers to log individual water consumption or break times, would demand dedicated administrative staff without meaningfully improving worker protection. We respectfully urge the Board to keep documentation requirements proportionate to their protective value.

Practicability should extend to timing as well. Unlike a private employer, our members generally cannot reprice or reschedule around a new requirement mid-contract; public highway work is bid at fixed prices and fixed contract times. We respectfully urge the Board to set an effective date no earlier than twelve months after adoption, and to work with VDOT so that the cost and schedule impact of compliance are recognized on contracts already bid, rather than absorbed as an unplanned cost or exposed to liquidated damages.

IV.  Defining “Worksite Control” on Multi-Employer Highway Projects

The statute defines “worker” to include “an employee, independent contractor, or other laborer whose worksite conditions are controlled by an employer,” but it does not define what constitutes that control. Highway projects are built by primes, subcontractors, material suppliers, and haulers working the same site, sometimes the same day. Left undefined, “control” will be applied inconsistently and will leave employers uncertain about their own obligations. We respectfully urge the Board to define worksite control so that each employer answers for its own employees and for the conditions it actually directs, while permitting shared cooling areas and coordinated heat illness prevention plans among employers working the same site, rather than requiring duplicate facilities for every trade.

V.  Acclimatization That Reflects Field Conditions

Section 40.1-44.2(B)(i) requires “acclimatization to working in heat” without specifying how it must be achieved. Rules for acclimatizing workers need to be clear because temperatures change constantly, and it is unclear how often procedures must be followed when outdoor temperatures move above and below the trigger temperature over the course of days and weeks.

Our members’ crews acclimatize gradually over the course of a construction season that warms through the spring, and we respectfully urge the Board to anchor the acclimatization requirement to graduated-exposure guidance, such as that published by NIOSH, that can be met through a written schedule. A worker who has already been performing heat-exposed work for an employer should not be treated as unacclimatized because of a short cool spell or a few days of rain, and the regulation should say so directly. 

Conclusion

In conclusion, we share the Commonwealth’s efforts of preventing heat-related illness.  In addition we respectfully urge the Board and the Department to make full and genuine use of the regulatory advisory panel process, and it is critical to include representation from highway and heavy civil construction with direct field experience. VTCA’s members want every worker to go home healthy each day. We thank the Board and the Department for their consideration of these comments and look forward to continued engagement as this rulemaking proceeds.