OSHA Renews National Emphasis on Indoor and Outdoor Heat Exposure

On April 10, 2026, the Occupational Safety and Health Administration (“OSHA”) issued a revised National Emphasis Program (“NEP”) addressing outdoor and indoor heat-related hazards. The updated NEP is intended to focus OSHA’s enforcement, inspection, and outreach efforts on industries and workplaces where employees face the greatest risk of heat illness and heat-related injury. According to OSHA, the revised program relies upon OSHA and Bureau of Labor Statistics data from 2022 through 2025 to identify 55 high-risk industries for targeted enforcement activity.

The revised NEP continues OSHA’s emphasis on both outdoor and indoor heat exposure hazards and authorizes OSHA compliance officers to conduct inspections during “heat priority days,” including days on which the National Weather Service issues a heat advisory or warning. OSHA also confirmed that compliance officers may expand the scope of other inspections when evidence of heat-related hazards is observed. The updated program removes the prior numerical inspection goal contained in the earlier version of the NEP and adds reorganized appendices intended to provide more detailed guidance regarding heat illness prevention programs and citation procedures.

The April 2026 update builds upon OSHA’s original Heat NEP first issued in April 2022. The original program represented OSHA’s first nationwide enforcement initiative specifically targeting heat-related workplace hazards and focused heavily on industries such as construction, agriculture, warehousing, manufacturing, and transportation. That earlier program authorized programmed inspections during high-heat conditions and expanded OSHA’s use of the Occupational Safety and Health Act’s General Duty Clause to cite employers for alleged failures to protect workers from heat hazards. OSHA extended the original NEP in 2025 before allowing it to expire briefly in April 2026 and replacing it with the newly revised version.

Although OSHA has not yet finalized a federal heat illness prevention standard, the revised NEP demonstrates that heat-related hazards remain a significant enforcement priority for the agency. Employers operating in industries involving outdoor work, high-temperature indoor environments, or strenuous physical labor should review their heat illness prevention practices, including employee training, hydration, rest breaks, acclimatization procedures, and emergency response protocols. Employers should also anticipate increased OSHA outreach and enforcement activity during the upcoming summer months.

ICE Raises the Stakes for I-9 Compliance Audits

In March 2026, the U.S. Immigration and Customs Enforcement agency (“ICE”) quietly published an updated Form I-9 Inspection Fact Sheet that significantly changes how employers may be penalized during I-9 audits. The revised guidance reclassifies a number of errors that were historically treated as “technical” or “procedural” violations into “substantive” violations, exposing employers to immediate monetary penalties without the traditional opportunity to cure the defects within ten business days.

For nearly three decades, employers relied on prior ICE guidance — including the well-known 1997 “Virtue Memorandum” — which distinguished between technical paperwork mistakes and substantive violations. Technical violations generally could be corrected after an audit notice was issued, while substantive violations carried immediate liability. Under the new ICE fact sheet, many common omissions and clerical errors are now treated as substantive violations from the outset.

Examples of violations reportedly reclassified from technical to substantive include missing employee information in Section 1, omitted dates, incomplete preparer/translator certifications, missing document information in Section 2, and certain errors involving remote document examination procedures. ICE also indicated that failures involving electronic I-9 systems — including deficiencies in audit trails, electronic signatures, retention procedures, or system security requirements — may now constitute substantive violations as well.

The practical impact for employers is substantial. Errors that HR personnel may previously have considered minor or correctable can now trigger fines immediately upon inspection. Employers should therefore consider proactive internal I-9 audits, enhanced HR training, review of electronic I-9 platforms, and careful evaluation of remote verification practices. Given the apparent increase in ICE enforcement activity and the elimination of the cure period for many common errors, employers should treat I-9 compliance as a significant legal and operational risk issue rather than merely an administrative onboarding function.

If you are interested in our Firm conducting or assisting with a self audit of your Form I-9s, please contact Philip Siegel. You can reach Philip directly at (404) 469-9197, or you can e-mail him by clicking here.

February 2026 Pennsylvania Supreme Court Decision Limits Co-Employee Immunity under Workers' Compensation Act

In Brown v. Gaydos[1], the Pennsylvania Supreme Court made clear that workers’ compensation co-employee immunity may not apply to protect an owner or co-employee of the direct employer from personal liability where the alleged negligence involves personally owned equipment or activities outside the employer’s formal business operations. 

“Co-employee immunity” is derived from Section 72 of the Workers’ Compensation Act (“WCA”) which states:

"If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong."[2]

In generalities, this means that an employee whose acts or omissions cause or contribute to injury or death to another employee during the course of their employment cannot be held liable for the injury or death, except when the injury or death is caused by intentional wrongdoing. 

The Court in Brown held that co-employee immunity does not automatically apply simply because the injured worker and defendant share the same employer. Instead, the analysis turns on whether the alleged negligence was an act or omission undertaken in the course of the defendant’s employment with same employer as the injured worker. For construction companies, that distinction could be particularly important where owners, supervisors, or affiliated entities provide and maintain equipment, tools, or vehicles outside formal company controlled and defined channels.

In Brown, an employee suffered serious injuries on his first day of work when a skid steer malfunctioned. Although the employee received workers’ compensation benefits without contest from the direct employer, he also pursued a negligence claim against one of the company’s owners personally, alleging negligent maintenance and failure to warn of known defects in relation to the skid steer. Because the company owner allegedly owned, stored, insured, and maintained the skid steer personally without any formal structure or agreement with the employer company, the Court found that there were facts in dispute over whether the company owner acted as a co-employee or in a separate personal capacity when maintaining the skid steer. If the negligent act – i.e. the alleged failure to properly maintain the skid steer – was performed in the employ of the employer construction company, co-employee immunity will bar the action. However, if the maintenance of the skid steer was performed in a separate or personal capacity, co-employee immunity will not apply and the company owner may be liable. 

Why it matters for construction businesses: Contractors and closely held construction companies may rely on personally or separately owned machinery, shared equipment, or informal maintenance practices. Brown highlights the risk that those informal arrangements can create personal or expanded liability exposure outside the workers’ compensation system. Brown clearly demonstrates the importance of formalizing agreements and policies governing ownership, leasing, use, inspection, and maintenance of machinery and equipment to fit the unique circumstances of a contractor’s business. Further, Brown shows the importance of new employee training and robust safety protocols. Avoiding injury in the first place should always be the top priority of every construction industry employer.



[1] Brown v. Gaydos, 351 A.3d 669 (Pa. 2026)

[2] 77 P.S. § 72. 

The Department of Labor Restores 2019 Salary Levels for FLSA

On May 14, 2026, the Department of Labor announced a technical amendment which formally replaced the salary level standards instituted in a final rule from 2024. Under the new technical amendment, those salary levels have been restored to the levels set in 2019. This latest action by DOL modified existing regulations to be consistent with the November 2024 ruling by the federal court in Texas which vacated the 2024 rule. And this technical amendment represents yet another step by the current administration to reverse the policies of the Biden administration.

The 2024 rule from the Biden administration substantially raised the salary thresholds used to determine whether an executive, administrative, or professional employee qualifies as exempt from the FLSA’s minimum wage and overtime requirements.  After the court’s ruling which vacated the rule, the Wage and Hour Division began applying the 2019 salary thresholds with respect to enforcement actions, so the current technical amendment merely formalized existing policy and should not impact any current enforcement actions. But it does officially remove the 2024 rule from the Code of Federal Regulations.

As a result of the technical amendment, The salary level applicable to the Executive, Administrative, and Professional Exemptions equals $35,568 annually (or $684 per week), and the applicable level for Highly Compensated Employees is $107,432 annually. For now, there is some certainty with respect to these tests, although future rulemaking from this or another administration may well change the analysis. 

If you have questions about overtime rules, including salary levels and other aspects of applicable exemptions, you can email Philip Siegel or Scott Calhoun. We will continue to monitor any changes in this area.

U.S. Department of Labor Publishes Proposed Rule to Address Joint Employment Status

On April 23, 2026, the U.S. Department of Labor (“DOL”) published a Notice of Proposed Rulemaking (“NPRM”) intended to establish a uniform federal standard for determining when two or more businesses may be considered “joint employers” under the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), and the Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”). The proposal represents a significant policy shift and would largely revive a narrower, employer-friendly approach similar to the joint-employer rule adopted during the first Trump Administration and later rescinded in 2021.

Under the proposed rule, joint-employer status would generally depend upon whether a business exercises direct and substantial control over key employment functions. The DOL proposes a four-factor analysis focusing on whether the alleged joint employer: (1) hires or fires employees; (2) supervises or controls work schedules or conditions of employment; (3) determines rates and methods of pay; and (4) maintains employment records. The DOL stated that the purpose of the proposal is to create a “single nationwide standard” that provides clarity and predictability for employers and employees alike.

The proposed rule is particularly important for businesses utilizing staffing agencies, subcontractors, franchise arrangements, or other contracted labor models. If finalized, the rule would likely reduce the circumstances in which parent companies, franchisors, or contracting entities may be held jointly liable for wage-and-hour violations committed by another employer. Supporters of the proposal argue that it will reduce uncertainty and encourage business investment, while critics contend that the narrower standard could make it more difficult for workers to recover unpaid wages and other damages.

The NPRM opened a 60-day public comment period, after which the DOL may issue a final rule later in 2026. Comments can be submitted via this link. Because the definition of joint employment has shifted repeatedly across presidential administrations, employers should continue monitoring developments closely and review existing contractor, staffing, and franchise relationships for potential compliance implications.

Time Runs Against the King: Pennsylvania Supreme Court Rules Government Entities Can't Escape Construction Statute of Repose

In a significant decision for the construction industry, the Pennsylvania Supreme Court unanimously held in Clearfield County v. Transystems Corporation[1] that government entities cannot invoke nullum tempus to revive claims extinguished by Pennsylvania’s 12-year construction statute of repose.

The case arose after contractors renovating a Clearfield County jail in 2021 discovered that the building’s original roof, installed in 1981, had never been attached to the masonry walls. Instead, it had rested unsecured on top of the structure for decades. The county spent $3.8 million to correct the defect and sued the original architect and contractors for negligence, fraud, and breach of contract.

The county faced a significant hurdle: Pennsylvania law bars construction defect claims brought more than 12 years after a project’s completion.[2] Because the jail was completed in 1981 and the lawsuit was filed in 2023, the claims came decades too late.

To avoid that result, the county invoked nullum tempus occurrit regi—"no time runs against the king"—a common-law doctrine that can shield government entities from statutes of limitations. The doctrine rests on the principle that public officials acting on the public’s behalf should not forfeit legal rights because of delay.

The Supreme Court declined to extend that protection to statutes of repose. It emphasized a critical distinction: statutes of limitations bar a remedy, while statutes of repose extinguish the cause of action itself and are not subject to tolling. Allowing nullum tempus to override that cutoff, the court explained, would upset the legislature’s deliberate policy choice to protect architects, engineers, and contractors from indefinite liability.

The unanimous ruling is an important win for the construction industry because it preserves the legislature’s firm 12-year cutoff for both private and public construction claims. Had the county prevailed, architects, engineers, and contractors could have faced open-ended liability stretching decades—or even generations—beyond project completion.

With this issue resolved, attention now turns to the Pennsylvania Supreme Court’s forthcoming decision in Aloia v. Diament, where the plaintiff argues that the construction statute of repose applies only if the work complied with applicable building codes. If you have questions about this article or other Pennsylvania construction law matters, please contact J.T. Gallagher at our firm’s Lehigh Valley office. You can e-mail J.T. by clicking here.