Trent Cotney, PA, FRSA LEGAL COUNSEL
In 2015, the Occupational Safety and Health Administration (OSHA) issued a new confined space standard specifically tailored for construction work. The new standard, subpart AA of 29 CFR 1926, increases protection for construction workers and applies to attics. A confined space refers to a space which (1) is large enough and so arranged that an employee can bodily enter it; (2) has limited
or restricted means for entry and exit; and (3) is not designed for continuous employee occupancy. These spaces can pose serious hazards such as explosions, asphyxiation, electrocutions, and exposure to toxic substances. (From www.osha.gov).
If a confined space contains a serious hazard, employers are required to obtain permits. However, these permits should not be confused with building permits and are limited to OSHA. A confined space requires a permit if it:
1. Contains or has the potential to contain a hazardous atmosphere;
2. Contains a material that has the potential for engulfing an entrant;
3. Has an internal configuration such that an entrant could be trapped or asphyxiated by inwardly converging walls or by a floor which slopes downward and tapers to a smaller cross section; or
4. Contains any other recognized serious safety or health hazard. (From www.osha.gov and www.osha.gov/dte/grant_materials/fy09/sh-18796-09/confinedspace.pdf).
A confined space requiring a permit is referred to as a “permit space.” The new construction standard became effective on August 3, 2015. In response to industry concerns, OSHA instituted a temporary enforcement policy (TEP) through October 2, 2015 under which it would not issue citations under the new standard if the employer was making good faith efforts to comply with the standard and as long as the employer was in compliance with either the current or former training requirements. OSHA extended this TEP for
residential construction through January 8, 2016 and then extended it again through March 8, 2016. (From www.osha.gov).
This new standard institutes a permit program similar to the general industry confined spaces standard (29 CFR 1910.146) but it addresses construction-specific hazards. The new standard adds five new requirements:
■ More detailed provisions requiring coordinated activities when there are multiple employers at the worksite. This will ensure hazards are not introduced into a confined space by workers performing tasks outside the space. An example would be a generator running near the entrance of a confined space causing a buildup of carbon monoxide within the space.
■ Requiring a competent person to evaluate the work site and identify confined spaces, including permit spaces.
■ Requiring continuous atmospheric monitoring whenever possible.
■ Requiring continuous monitoring of engulfment hazards.
■ Allowing for the suspension of a permit, instead of cancellation, in the event of changes from the entry conditions listed on the permit or an unexpected event requiring evacuation of the space. (From https://www.osha.gov/confinedspaces/faq.html)
Additionally, OSHA clarified requirements existing under the general industry standard by adding the following provisions to the new standard:
■ Requiring that employers who direct workers to enter a space without using a complete permit system prevent workers’ exposure to physical hazards through elimination of the hazard or isolation methods such as lockout/ tagout.
■ Requiring that employers who are relying on local emergency services for emergency services arrange for responders to give the employer advance notice if they will be unable to respond for a period of time (because they are responding to another emergency, attending department-wide training, etc.).
■ Requiring employers to provide training in a language and vocabulary that the worker understands. (From https://www.osha.gov/confinedspaces/faq.html)
In order to determine whether to follow the construction standard or general industry standard, a roofing contractor must determine whether the work is maintenance or construction. If the work is construction, which means building a new structure or upgrading an old one, the construction standard applies; if the work is maintenance, the general industry standard applies. An OSHA letter of interruption may help employers make this distinction:
Construction work is not limited to new construction, but can include the repair of existing facilities or the replacement of structures and their components. For example, the replacement of one utility pole with a new, identical pole would be maintenance; however, if it were replaced with an improved pole or equipment, it would be considered construction.
OSHA Letter of Interruption, November 18, 2003; see also OSHA Instruction CPL 2.100, May 5, 1995 Directorate of Compliance Programs.
Another consideration in determining whether the construction standard applies is whether the hazards can be eliminated and whether forced air ventilation can render the space safe for entry. Should these conditions be met as well as several other conditions set out in 29 CFR 1926.1203(e) (1), employers may follow alternate procedures instead of the permit program. The alternate procedures are set out by 29 CFR 1926.1203(e)(2).
Given that the standard applies to attics, roofers should be prepared to address the safety requirements even if they are not routinely accessing attics. OSHA inspectors may start asking employees if they have had confined space training during an inspection. Part two of the article will talk about the employer’s responsibilities under the new standard.
Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is Florida Bar Certified in Construction Law, General Counsel and a director of the Florida Roofing and Sheet Metal Contractors Association (FRSA), a director of the West Coast Roofing Contractors Association (WCRCA), and a member of the National Roofing Contractors Association (NRCA), Midwest Roofing Contractors Association (MRCA) and several other FRSA affiliates.
For more information, contact the author at 813-579-3278 or visit www.trentcotney.com.
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