Trent Cotney, CEO, Cotney Attorneys & Consultants
The Occupational Safety and Health Administration (OSHA) is staying busy these days, not only completing routine inspections but also discussing actions that very well may impact companies and workers in the construction industry. The agency’s proposed amendments and new standards will impose new regulations that will be felt from coast to coast.
The Hazard Communication Standard (HCS) applies to all employers who store, handle and transport hazardous materials. OSHA is proposing amendments to the HCS that will revise some hazard classes, change language incorporated on safety data sheets (SDSs), and modify conditions for labeling.
The goal of the amendments is for the HCS to comply with the most recent revisions to the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS).
The HCS amendments will likely apply to numerous materials used on construction sites. These include items stored in small containers (to comply with new label requirements), cleaning solutions and aerosol products. A new hazard class for desensitized explosives would also be created. These changes will result in construction workers being subject to additional training and communications requirements. Employers will have to ensure that their SDSs, written programs and training materials are all updated.
Not everyone agrees with these proposed changes. For instance, Cal/OSHA contends that the proposed amendments will result in limited protections for workers. In addition, the proposed amendments also conflict with hazard communication standards that some states, such as California and Washington, have already adopted.
If you have concerns regarding the proposed revisions to the HCS, a virtual public hearing is scheduled for September 21. You can review Docket No. OSHA-2019-0001 at www.regulations.gov.
On its midyear regulatory agenda, OSHA may also consider a new standard to address heat illness prevention. Heat has been a constant hazard for indoor and outdoor workers and the extreme conditions of recent months support the necessity of setting regulations. Construction workers who labor outside and perform tasks that require great exertion are
particularly vulnerable.
In the past, OSHA has relied on the General Duty Clause to impose citations for employee illness and injury resulting from excessive heat on the worksite. However, a heat standard would set more stringent guidelines regarding
monitoring outdoor temperatures and humidity. It would also require that employees gradually acclimate to the heat, have access to water and be guaranteed regular breaks.
OSHA is also weighing the necessity for a communication tower safety standard. Generally speaking, communication tower maintenance and construction projects are inherently dangerous and they have a fatality rate that is much higher than other construction projects. However, the need for communication towers will likely increase as technology evolves, so the construction industry needs to prepare for that. The standard would seek to provide guidelines to ensure worker training and safety for tower projects.
As part of their current agenda, OSHA has proposed reverting to the 2016 version of the workplace injury and illness tracking regulations. Under the proposal, facilities with 250 employees or more would be required to electronically submit illness and injury data with Forms 300 and 301, in addition to the summary data required in Form 300A. This version would include employee anti-retaliation provisions, which could discourage post-accident drug testing, as well
as health and safety incentive programs.
Some employers are concerned that OSHA may be categorizing post-incident drug testing as a form of retaliation. They argue that substance abuse is common in construction, so it must be considered as a factor when investigating an accident. In addition, alcohol use can cause dehydration, which can further exacerbate heat illness. With these issues in mind, if the proposed reversion is approved, employers may find themselves facing more accident and injury citations from OSHA.
OSHA is also reviewing personal protective equipment (PPE) in construction. A possible PPE standard would likely address PPE availability and distribution for construction workers, as well as the hazards related to working in close quarters.
Other amendments being considered include revisions to the cranes and derricks standard, welding and cutting standards and shipyard fall protections. OSHA may also address hazardous materials and their effects on workers, specifically crystalline silica and blood lead levels.
As OSHA grapples with amendments and new standards, one thing is for sure; employers must keep up with the changes and guidelines, not only to ensure their workers’ safety but also to protect their companies’ interests. When questions arise, it is critical that employers consult legal counsel. Experienced OSHA defense attorneys can help navigate the abundance of regulations and provide sound advice regarding OSHA investigations and citations.
Disclaimer: 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 Board Certified in Construction Law by the Florida Bar, an advocate for the roofing industry and FRSA General Counsel. For more information, contact the author at 866-303-5868 or go to www.cotneycl.com.
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