osha regulation

Ever since President Donald Trump took office, many contractors have been expecting a rollback of regulations from the Occupational Safety and Health Administration (OSHA). After all, he did sign an executive order on Jan. 30, 2017, that requires federal agencies to eliminate two rules for each one they propose. The order applies to new rules with an estimated cost of $100 million or more.

But the Department of Labor has not filled every position yet, which will ultimately determine an agenda for OSHA in 2018 and beyond. The Trump administration nominated Scott Mugno, vice president of safety, sustainability and vehicle maintenance at FedEx Ground, to serve as the next head of OSHA, and the full U.S. Senate could confirm his appointment before the end of 2017.

No matter the leadership, though, OSHA remains an enforcement agency and will issue citations for regulations already in place. The recent addition of new standards, such as limiting workplace exposure to respirable crystalline silica, should press contractors to look proactively for the most accurate information, especially since OSHA increased maximum penalties for violations by nearly 80 percent in 2016.

OSHA outreach

The priorities of OSHA have not changed, but the agency has paid more attention to meeting the needs of people asking questions, says Mary Bauer, a compliance assistance specialist at the Eau Claire OSHA office in Wisconsin. An on-site consultation program, separate from the inspection efforts, provides free and confidential advice to small- and medium-sized businesses in all 50 states.

Consultants from state agencies or universities work with employers who request an on-site visit to identify workplace hazards, offer advice on compliance with OSHA standards, and assist with establishing injury and illness prevention programs—or improve programs already in place. The consultation stays confidential and will never be routinely reported to the federal OSHA inspection staff.

“In the state of Wisconsin, they’ve been able to fully staff and give more help to employers, and they can actually go to the worksite and do a mock OSHA inspection,” Bauer explains. “A lot of our outreach on the federal office side is [doing] presentations and giving that information to the [trade] groups and the masses. We can’t go individually to the worksite, so the state consultation program is that avenue to work one-on-one with a safety and health professional and improve their individual programs. And it’s free of charge—except for the corrections that they need to make.”

Employers do not incur any citations or penalties, but they must commit to rectifying serious job safety and health hazards in a timely manner before the actual visit. “The consultants do have an obligation to tell us if an employer refuses to correct a serious hazard, but the point of having the consultation group is to get that corrected, so they usually work through those issues,” Bauer says.

OSHA also would like to increase the number of companies in its voluntary protection program, which acknowledges employers who have implemented effective safety and health management systems, and maintain injury and illness rates below national Bureau of Labor averages for their respective industry. “If you think you have an elite safety program, you can apply to OSHA; and if we accept the application, then we would review your safety and health program,” Bauer says. “It’s a fairly intensive process, but it’s one way we validate and recognize exceptional programs.”

The agency reevaluates participants every three to five years to ensure they still qualify for the program. Participants remain exempt from OSHA programmed inspections for as long as they maintain their voluntary protection program status, according to information on the OSHA website.

Pressure points

The new respirable crystalline silica standard in particular has caused the most confusion among contractors, says Bradford Hammock, office managing principal at Jackson Lewis P.C., in Washington, D.C. OSHA delayed enforcement of the rule from June 23 to Sept. 23 last year and granted an additional 30-day grace period for good faith efforts before the regulation took effect.

“It’s a complicated standard, [and] OSHA’s enforcement directive is short and doesn’t provide a lot of information,” Hammock explains. “[People] have a ton of questions—I get them every day from contractors across the country. What do I do here? How do I comply? This isn’t covered by Table 1, so what do I do now? That’s the main pressure point that I see day in and day out now.”

OSHA understands not everything about the new rule has been conveyed clearly, and the agency pledges to help employers integrate the regulation into the way they do business, Bauer says. “We are working with contractors to get [them] the best, up-to-date information and have them get their heads and minds wrapped around what the standard entails and how to protect their employees.”

Photo: Bosch

Berenson LLP, a law firm that counsels the remodeling and home improvement industry, issued a request for clarification on the silica rule about a year ago but never received a response, says D.S. Berenson, managing partner. “The silica rules are one of the first things we were expecting a pullback on,” he adds. “Trump … actually came out and commented on it during the primary.”

The regulation raises concerns similar to the objections surrounding the Lead Renovation, Repair and Painting Rule in the late 2000s. The EPA introduced a series of amendments to that standard over the next few years to refine certain requirements and relieve the cost burden for contractors. OSHA would be wise to follow a comparable path and eventually fine-tune the silica regulation.

“The American people can live with bad laws; contractors can live with bad laws. But you can’t live with laws you don’t understand, and that’s what we’ve got here with a lot of these agencies,” Berenson says. “Unfortunately, we have not seen—not yet at least—the [Trump] administration bring any degree of clarity to the intellectual thicket that exists in these [job compliance] areas.”

Regardless, contractors should make sure their workers complete the OSHA 10-hour training course in person or online, Berenson recommends. Larger employers could even bring in a certified OSHA trainer to teach workers in-house so they fulfill the requirement. “That is your best defense—you were at least complying with what you were told in training,” Berenson adds.

Low-hanging fruit

Fall protection continues to be the most-cited OSHA violation, especially for siding, window and roofing contractors, Berenson says. Oftentimes, the agency works in conjunction with permitting offices to identify current siding, window and roofing jobs. OSHA representatives either visit the site or sit in their vehicles and take photos. A month or two later, contractors receive their citation.

“OSHA can’t drive by and see if a contractor has a [safety data sheet] on the foam being used. But a compliance officer can see workers on the roof without fall protection,” Bauer says. “It’s more visible, and it’s also OSHA’s justification for gaining access to the site; therefore, the top 10 OSHA violations are geared to fall hazards. If the contractor has a bad scaffold, it’s in plain view.”

Werner Co.

Once the agency enters a worksite, the most common violations include hazard communication, respiratory protection and energy control procedures. Contractors who have not been cited prior to a multiple-count violation usually sustain fines of a couple thousand dollars and can negotiate them down, Berenson says, but a repeat offender faces the real possibility of a six-figure penalty.

“The vast majority of contractors don’t have OSHA training [and] their guys aren’t experienced. Or if they are, they just don’t do it,” he continues. “Because frankly the guardrail systems, safety net systems and personal fall arrest systems, they’re a little cumbersome; and they’re not [cheap], especially when you’re using independent contractor installers—as most of the [contractors] do.”

Another new rule, the electronic submission of injury and illness records, requires employers in the construction industry with 20 or more employees at any one time to file their annual reports with OSHA through an online injury tracking application. Businesses with 11 or more employees must keep an injury and illness log, but they do not have to send their Form 300A data to OSHA.

“If I’m a remodeler and I’ve got three or four guys, a secretary and me—five or six people—I’m under 11 people, so I’m not required to report unless I have a significant injury or death,” says Mark Paskell, owner of The Contractor Coaching Partnership. “Employers who have 20 or more employees, they’re required to report to OSHA and list all their injuries and illnesses in a year.”

The original regulation called for the data to be posted on the OSHA website so the public could search the information. While proceeding with the electronic reporting requirement, the Trump administration has not yet indicated whether the data will be made public. OSHA is reviewing some provisions of the standard and said it might revise or remove portions of the rule in 2018.

Covering bases

Through federal and state initiatives, OSHA can supply numerous resources to contractors who seek more information about workplace standards. And trade associations such as the National Association of Home Builders can give members valuable knowledge and guidance on OSHA regulations. But consulting an experienced legal professional imparts even more peace of mind.

“We normally recommend that you find an attorney, a law firm, that is well-versed vis-a-vis the industry and the regulation that you’re looking at as it pertains to that industry,” Berenson says. “Because what you hear from the agencies is not always accurate, for whatever reason. It’s like trying to call the IRS and ask about your tax returns. You can call 30 different IRS agents, [and] you’re going to get 30 different answers.”

Contractors also should remember that many states have their own workplace standards, such as the Division of Occupational Safety and Health, also known as Cal/OSHA. States like Michigan, Massachusetts and Rhode Island have their own lead paint rules, for example. Even if the Trump administration substantially modifies OSHA, contractors need to observe their local regulations. | QR

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