By Michael Metz-Topodas, Saul Ewing LLP

Introduction

With the Occupational Safety and Health Administration (“OSHA”) enforcing an entire section of regulations devoted to the construction industry, changes at the agency significantly impact contractors and their operations. Keeping track of OSHA’s recent activities ensures compliance and promotes safety. With that in mind, contractors should know about developments at OSHA in the first half of 2026, which include new leadership, regulatory structure, heat hazard safety programs, and compliance initiatives.

OSHA’s New Leadership

The tone for OSHA’s 2026 activity took hold late last year with the confirmation on October 2, 2025 of David Keeling as Assistant Secretary of Labor for Occupational Safety and Health. Keeling brings a strong mix of employer and employee perspective to workplace safety based on his decades of experience. Before this appointment, he worked as Vice President of Global Health and Safety at United Parcel Service, as part of his 36-year tenure at that company. He carried that experience to his role as Director of Global Transportation Safety at Amazon. In these roles, Keeling developed the pragmatic approach he employs in leading OSHA, one that balances a commitment to employee safety with avoiding undue limits on employers’ business goals. As Keeling has stated elsewhere, “We want to be in the abatement [and] . . . solutions business[, not] . . . necessarily . . . the enforcement business.” Keeling’s balanced perspective accords with the current regulatory landscape where OSHA faces multiple obstacles in creating and enforcing safety standards.

Limitations on Regulatory and Enforcement Activity

Enacting regulatory change at OSHA faces obstacles from multiple executive orders (“EO”s) halting or constraining new regulations. With the EO titled Regulatory Freeze Pending Review, the Trump administration required both agency head review and a sixty-day waiting period for any proposed rule awaiting final approval. Adding to this hold-up of pending regulations, the EO titled Unleashing Prosperity Through Deregulation required federal agencies to eliminate ten existing regulations for each one new regulation it wants to propose. Not only did Keeling walk into a constrained regulatory environment, but he also faces limitations on available resources for OSHA. Although a proposed almost 8% reduction in OSHA’s budget never materialized, its FY2026 funding still has an almost 0.5% decrease from last year. With slightly less funding from the prior year, OSHA will likely maintain a relatively similar number of full-time employees, including Compliance Occupational Safety and Health Officers (“COSHO”s), OSHA’s enforcement inspectors. That number falls about 13% short of the inspectors OSHA had towards the end of the Biden Administration based on information from about a year ago. Without a robust contingent of inspectors, OSHA inspections, and thus citations and penalties, may see little to no increase from last year. During that time, penalties had decreased to the lowest levels in seventeen years according to a February 18, 2026 letter from Senator Elizabeth Warren to the Secretary of Labor.

OSHA has also faced many legal challenges to the scope of its authority. With the recent Supreme Court’s Loper Bright decision, employers can challenge OSHA rules or citations that are based on the agency’s interpretation of ambiguous language in Occupational Safety and Health Act because courts no longer need to defer to such interpretations. Going a step further, recently a New Jersey steel fabricator contested an OSHA citation on constitutional grounds. It argued that the judges of the Occupational Safety and Health Review Commission, the forum for citation challenges, are “unconstitutionally appointed” and “unconstitutionally insulated from removal” and that the proceedings deprive the right to a jury trial and lack the necessary U.S. Attorney General involvement. This challenge echoes commentary Justice Clarence Thomas made in denying Supreme Court review over an OSHA case that the OSH Act “may be the broadest delegation of power to an administrative agency found in the United States Code” and that “it is hard to imagine” “this far-reaching grant of authority does not impermissibly confer legislative power on an agency . . . .” Facing so many formal constraints on what action it can take, OSHA has turned its attention to compliance and education as the way to improve workplace safety.

The Heat Hazard National Emphasis Program

As one of the OSHA initiatives paused by the administration’s regulatory controls, OSHA’s heat hazard rule remains pending following a recent additional notice and comment period. Undeterred, OSHA has employed other available mechanisms to guide employers in implementing controls, measures, and programs aimed at protecting workers from heat hazards. On April 10, 2026, OSHA issued a revised national emphasis program to protect employees from heat-related hazards and resulting injuries and illnesses in outdoor and indoor workplaces (the “Heat Hazard NEP”).

Although the Heat Hazard NEP lacks a regulation’s force of law, like all NEPs, it does direct and guide OSHA personnel on compliance and enforcement activities they can implement to address heat hazards. The Heat Hazard NEP contains a revised list of industries targeted for programmed inspections—i.e., planned and scheduled—based on Bureau of Labor Statistics and reports to OSHA. Organized by NAICS Code, the revised list covers both general construction and many types of contractors, including heavy civil, site work, exterior, residential building, building equipment, and building finishing. The Heat Hazard NEP also directs that any and all OSHA inspections, regardless of their initial reason, can look for heat hazards. In exercising this expanded inspection power, OSHA will determine the extent to which an employer’s heat hazard program meets criteria outlined in the Heat Hazard NEP. Similar to criteria in the pending rule, under the Heat Hazard NEP, a heat hazard program should include: a heat hazard plan; monitoring for signs of heat illnesses and injury; remedial measures (e.g., available water, scheduled breaks, fans, shade, modified start and stop times to avoid the hottest daytime periods, and other administrative controls); acclimatization for new employees; and heat hazard training. The Heat Hazard NEP also advises COSHOs on how to identify and cite for heat hazard-related general duty clause violations, i.e., failing to comply with the OSH Act’s requirement that employers provide a safe and healthy workplace. As the Heat Hazard NEP expands OSHA’s inspection and citation authority, employers should continue to review and update, as needed, their heat hazard plans.

Nonetheless, if cited for a heat hazard-related general duty clause violation, employers have multiple defenses available. For such violations, OSHA bears a higher burden of proof affording employers the room to argue that even though a heat plan may not meet all aspirations in the Heat Hazard NEP, it still secures for employees a safe and healthy workplace. Moreover, heat hazards constitute a “broad public health concern, not necessarily an ‘occupational’ hazard or strictly about employees’ safety and health.” The U.S. Supreme Court has previously determined that this type of risk falls outside OSHA’s regulatory scope (although in that case the broad public health concern was a virus, COVID-19). Thus, like measures meant to protect employees from a virus, requirements based on heat injury and illness prevention “would significantly expand OSHA’s regulatory authority without clear congressional authorization.” In short, the Heat Hazard NEP does not give OSHA unfettered power to determine how employers should protect their workers from heat injuries and illnesses. Despite such defenses, contractors benefit from directing efforts towards complying with the Heat Hazard NEP’s guidelines in saving on citation contest costs and securing a safe, healthy, and productive workforce, the lifeblood of any construction company.

Safety Champions Program

As part of OSHA’s increased focus on compliance as opposed to enforcement, it has created a new Safety Champions Program. In this program, employers can demonstrate to OSHA various degrees of commitment to workplace safety and then receive recognition from OSHA attesting to the company’s safety level or “step” as the program describes it. Advancement through the steps depends on how the company’s safety program meets the tenets in OSHA’s Recommended Practices for Safety and Health Programs. Such recognition includes publication on OSHA’s website and a letter identifying that employer’s current Safety Champion level as well as a Safety Champions logo the company may use as a safety “seal of approval” on any and all publications, including its website. The program resembles OSHA’s Voluntary Protection Program, but with fewer requirements for, or benefits of, membership.

OSHA CARES Initiative

Introduced in late-March, the Customer Assistance, Resources & Engagements initiative makes an agency-wide effort to support and guide all workplaces with the goal of helping to ensure all employees “go home safe.” The initiative aims to encourage businesses to seek OSHA’s guidance and assistance in addressing workplace hazards by showing the benefits of such collaboration. In doing so, the agency presents a more approachable demeanor. Specific CARES Initiative measures include: increasing access to OSHA experts and compliance assistance specialists; improving availability to educational and training materials; and offering consistent workplace assistance during enforcement visits and meetings. With that in mind, OSHA unveiled new versions of required workplace posters that emphasize OSHA’s shift from enforcement tactics that target violations after they occur to compliance support that prevents violations before they happen. Further illustrating this shift, COSHOs’ training will now include education on how they can provide employers real-time assistance to eliminate or control existing workplace hazards detected during an inspection.

Enforcement Activity Continues

Despite OSHA’s multiple policy shifts, enforcement actions continue, as reflected in the top five publicized citations by penalty pertaining to construction:

1. A Massachusetts water and sewer contractor was cited for multiple willful, repeat, and serious violations related to cave-in protection hazards, including excavation exit, shoring, and spoil pile location, with a total penalty of $4,699,362.
2. An Alabama heavy civil contractor received a citation for sixteen serious violations with total penalties of $257,707 arising out of confined space hazards from sewer gas.
3. A Florida roofing contractor was cited for willful and serious violations, with penalties of $172,324, due to fall hazards, in particular failure to require adequate fall protection for employees working at heights of over 20 feet, resulting in fatalities.
4. An Alabama heavy civil contractor received a citation for willful violations and $170,145 in penalties related to unsafe excavation practices that exposed workers to struck-by and cave-in hazards.
5. An Alabama residential home builder was cited for serious violations with penalties of $115,855 arising out of cave-in hazards while installing sewage drainage pipe.

The Look-Ahead

Based on these developments in the regulatory environment, OSHA will likely increase its current cooperative compliance initiatives. At the same time, OSHA has shown it will not refrain from issuing citations where employers’ failure to address safety properly led to egregious violations or serious safety and health hazards.

About the author: 

Michael Metz-Topodas is a partner in the Construction Group at Saul Ewing, LLP. His practice includes construction litigation, day-to-day project and claims counseling, contract review, drafting and negotiations, bid preparation and bid protests, along with OSHA compliance and enforcement defense. In his OSHA practice, he has represented clients before the OSHRC and advised clients on dozens of citation contests, investigation demand responses, and safety standards compliance matters. Mr. Metz-Topodas represents general contractors, subcontractors, owners, designers, and suppliers on private, public, and federal projects and handles all forms of construction disputes. He can be reached at michael.metz-topodas@saul.com.