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October 2011 >>
Construction Safety and Health: The View from Washington, D.C.
The construction industry is in the crosshairs of regulatory and enforcement activity from the Occupational Safety and Health Administration (
OSHA). The agency continues to push forward on several ambitious regulatory initiatives that, when finalized, will significantly impact all construction employers. Don’t expect any letup in OSHA’s enforcement posture. All construction employers should plan for a visit from an OSHA compliance officer by ensuring their safety and health programs are fully up to date.
New Regulations Around the Corner
OSHA recently prioritized four major regulatory initiatives:
- Injury and Illness Prevention Program (IIPP). This is the most significant rule on OSHA’s regulatory agenda. It has been under development for more than two years and may be picking up steam. Most IIPPs have some form of the following elements to proactively address hazards in the workplace: management leadership, employee participation, risk identification and prioritization, hazard control, education and training, and evaluation and continuous improvement. In this rulemaking, OSHA faces the challenge of turning these broad concepts into mandatory requirements that can be applied to employers of all sizes and in all industries. OSHA also must attempt to craft a rule that does not disrupt existing employer programs that are working. It is important for construction employers to watch the IIPP rulemaking closely and actively engage OSHA on what will or will not work.
- Crystalline silica. Perhaps the most significant rulemaking for the construction industry is the effort to comprehensively regulate crystalline silica. In 2002, OSHA issued a draft proposed regulatory text for the rule in which it considered lowering the permissible exposure limit for the substance; implementing extensive “housekeeping” requirements, including prohibiting the practice of dry sweeping; requiring exposure monitoring and the establishment of regulated areas; and imposing medical surveillance obligations. OSHA also contemplated a unique approach to implementing engineering controls, setting out a table of controls and respiratory protection for certain construction tasks that, if followed by employers, would constitute compliance with the proposed monitoring and engineering control provisions. While this approach reflected OSHA’s recognition that regulating silica in construction poses unique challenges, the 2002 table did not fully consider the diverse exposures in construction and the varied workplace conditions that exist in the industry. All construction employers need to watch this rulemaking closely.
- Stricter injury and illness reporting obligations. OSHA recently proposed requiring employers to report workplace-related amputations to the agency within 24 hours, as well as report all inpatient hospitalizations within eight hours. Existing recordkeeping rules require employers to report inpatient hospitalizations of three or more employees to OSHA within eight hours. Any workplace fatality would continue to be reportable as well. With this proposal, OSHA is following the actions of many states that adopted more stringent reporting requirements for amputations and inpatient hospitalizations.
- Backover injuries and fatalities. In an effort to prevent injuries and fatalities caused by vehicles backing over workers, OSHA sought information regarding the effectiveness of technological and non-technological solutions. The agency is exploring cameras, radar, ultrasonic devices, radio frequencies on equipment, or the simple use of spotters and internal traffic control plans as possible ways to prevent such injuries. If enacted, this regulation may create the need for another level of safety when dealing with vehicles in the workplace.
Enforcement at Historic Level
OSHA shows no signs of slowing when it comes to enforcement. Every year, OSHA publishes its top 10 most frequently cited standards. For the 2010 fiscal year, the top two most cited standards were scaffolding (1926.451) and fall protection (1926.501). Rounding out the top 10 were hazard communication, respiratory protection, ladders, lockout/tagout, electrical (wiring methods), powered industrial trucks, electrical (general requirements) and machine guarding.
In addition, hazards in the construction industry have been identified as triggers for OSHA’s Severe Violator Enforcement Program (SVEP). SVEP “concentrates resources on inspecting employers that have demonstrated indifference to their Occupational Safety and Health Act obligations by willful, repeated or failure-to-abate violations.” Under the program, an inspection of an employer meeting the criteria of a SVEP case may result in enhanced follow-up inspections of the worksite at issue, nationwide inspections of the employer’s related worksites, increased “awareness” of OSHA’s enforcement actions against the company and enhanced settlement provisions, including possible corporate-wide agreements.
Employers can be entered into the program if they are cited for two or more willful or repeated violations or failure-to-abate notices (or any combination of these violations/notices) for “high-emphasis hazards.” Many of the high-emphasis hazards exist in the construction industry, including fall hazards, amputation hazards, silica hazards, lead hazards and excavation/trenching hazards.
Now that OSHA’s Cranes and Derricks in Construction rule is in effect, employers should expect to see increased enforcement in crane safety. While OSHA has not yet published a compliance directive on the new rule, the agency did put forth a Small Entity Compliance Guide to assist small employers in understanding the new requirements. The massive rule contains more than 40 separate sections of detailed requirements in areas such as crane assembly, crane operations, inspections and operator training.
Finally, employers in residential construction should expect to see increased enforcement of OSHA’s new fall protection directive. Originally published Dec. 16, 2010, the new directive revises OSHA’s position with respect to the use of fall protection while performing residential construction. Before the new directive was issued, residential contractors could utilize certain specified alternative procedures instead of conventional fall protection without a prior showing of infeasibility or greater hazard and without developing a written, site-specific fall protection plan. The latter requirements generally are mandated by OSHA’s construction fall protection standard at 29 CFR 1926.501(b).
The new directive changes this enforcement position by requiring residential construction employers to demonstrate that conventional fall protection on a particular job is infeasible or presents a greater hazard before utilizing alternative fall protection measures. Furthermore, residential construction employers must develop a written, site-specific fall protection plan when utilizing these alternative methods. According to the directive, “a written plan developed for repetitive use for a particular style/model home will be considered site-specific with respect to a particular site only if it fully addresses all issues related to fall protection at that site.”
Clearly, OSHA continues to focus on the construction industry from all angles. For employers, the best defense may be a good offense. Be proactive in implementing safety and health programs and engage OSHA in the regulatory process.