Rules + Regs

OSHA delays enforcement of crystalline silica standard

The Occupational Safety and Health Administration (OSHA) has announced a delay in enforcement of the crystalline silica standard that applies to the construction industry so OSHA can conduct additional outreach and provide educational materials and guidance for employers. The agency determined additional guidance is necessary because of the unique nature of the requirements in the construction standard. Enforcement originally was scheduled to begin June 23; it now will begin Sept. 23.

OSHA expects employers in the construction industry to continue taking steps either to come into compliance with the new permissible exposure limit or to implement specific dust controls for certain operations as provided in Table 1 of the standard.

"Although the delay in enforcement is welcome, additional time is needed for a majority of employers in the construction industry to begin to comply with this significant regulation's complex requirements," says Harry Dietz, an NRCA director of enterprise risk management.

To read NRCA's Industry Issue Update regarding OSHA's silica standard, visit click here.

Canada supports international chrysotile asbestos ban

In line with its previously announced plans to prohibit asbestos and products containing asbestos domestically by 2018, Canada supported a proposal to add chrysotile asbestos to the list of banned substances under the international Rotterdam Convention—a proposal that ultimately was blocked by a handful of countries.

Canada advocated listing chrysotile asbestos as a banned substance under the international convention meetings held April 24-May 5 in Geneva, Switzerland. At the conclusion of the meetings, it was announced India, Kazakhstan, Kyrgyzstan, Russia, Syria and Zimbabwe blocked adding chrysotile asbestos to the list of banned substances.

Chrysotile asbestos is considered by some to be the least dangerous form of asbestos though the World Health Organization (WHO) has said chrysotile asbestos "causes cancer of the lung, larynx and ovary, mesothelioma and asbestosis, whether or not it is less potent than amphibole types of asbestos in doing so."

Asbestos is considered especially dangerous to workers who handle it during building construction. All other forms of asbestos already are banned by the Rotterdam Convention. In 2011, Canada's then-Prime Minister Stephen Harper successfully fought to keep chrysotile asbestos off the Rotterdam Convention's international list of hazardous chemicals.

"By supporting the listing of chrysotile asbestos to the Rotterdam Convention, Canada is taking a concrete step to promote responsible management of this harmful substance globally," said Environment and Climate Change Minister Catherine McKenna in an April 21 statement. "We also will put in place regulatory measures to protect the health and safety of Canadians as we move forward toward a ban."

Canada released a federal consultation paper outlining its proposed regulatory approach to asbestos domestically. The country is poised to join more than 50 nations that have banned asbestos. Iceland was the first to ban asbestos in 1983; the U.K. banned it in 1999; Australia banned it in 2003; and the European Union banned it in 2005. Asbestos is not banned in the U.S.

Canada's consultation paper proposes developing regulations that ban the import, use, sale or offer for sale of asbestos, as well as the manufacture, use, sale, offer for sale or import of products containing asbestos. A list of exemptions from the overall ban also was proposed. Uses that may be considered for exemptions in "exceptional circumstances" include use in construction materials such as cement blocks and sheets, and fabric goods.

Asbestos was found in more than 3,000 applications during the height of its use, including roofing shingles, thermal and electrical insulation, flooring and shoes. The production and use of asbestos have declined since the 1970s, especially after WHO's 1987 declaration that inhalation of airborne fibers can cause lung damage, lung cancer, mesothelioma and asbestosis.

Judge delays case challenging OSHA's record-keeping rule

An April 3 order by Judge Sam Lindsay of the U.S. District Court for the Northern District of Texas states the court will not decide the legality of the Occupational Safety and Health Administration's (OSHA's) electronic record-keeping rule until after the July 1 deadline for employers to comply with the rule. The rule requires about 466,000 employers in certain industries to electronically file with OSHA by July 1 summaries of their OSHA form 300A logs tracking recordable injuries and illnesses for 2016. OSHA then would post data from the logs on its public website.

Two sets of employers would be required to comply with the electronic record-keeping provisions: all establishments with 250 or more workers—about 34,000 locations—and about 432,000 additional establishments in designated high-hazard industries, including construction, with 20 to 249 workers.

The April 3 order gives Department of Labor (DOL) attorneys and several employer groups challenging the rule until July 5 to submit a proposed summary judgment briefing schedule. July 5 also is the deadline for DOL attorneys to respond to requests from public and industrial health organizations to intervene in the case supporting the rule.

The rule is widely opposed by employer organizations for mandating the end of incentive and testing programs and making injury and illness records publicly available.

Judge rules contractor may appeal ruling and fine

A judge has ruled A.C. Castle Construction Co. Inc., Beverly, Mass., may appeal an administrative ruling that the company and its subcontractor, Provencher Home Improvement, Beverly, were operating as a single entity when three roofing workers suffered injuries during a scaffolding accident, according to Bloomberg BNA. The companies are not members.

A.C. Castle Construction faces $173,500 in penalties after Occupational Safety and Health Review Commission Administrative Law Judge Sharon D. Calhoun ruled the company and Provencher Home Improvement had a common work site, common management and integrated operations. Calhoun affirmed three of the five serious citations, one willful citation and one repeat citation for violations of construction standards related to scaffolding. Two willful citations were downgraded to serious citations.

The citations were issued after members of a roofing crew working on a house in Wenham, Mass., were injured Oct. 2, 2014, when a spruce plank in their ladder jack scaffold snapped. The workers, who were not tied-off to an anchor point, fell 20 feet, and two workers suffered serious injuries. The spruce planks had been purchased by the work-site supervisor, Daryl J. Provencher. An Occupational Safety and Health Administration (OSHA) inspector observed the work site and noted the invoice for the spruce planks stated they were "not for staging."

In addition to the citations for violations of construction standards related to scaffolding, OSHA issued a citation and penalty to A.C. Castle Construction and Provencher Home Improvement on grounds they were operating as a single employer.

Provencher passed away in December 2016, and the secretary of labor's claims against him no longer could be pursued.

In addition to sharing the Wenham work site, Calhoun ruled the two companies had interrelated and integrated operations and shared management. Provencher Home Improvement earned 95 percent of its income from A.C. Castle Construction projects in 2015. A.C. Castle Construction hired and fired some Provencher Home Improvement employees, and Provencher Home Improvement employees only received OSHA training provided by A.C. Castle Construction.

The Occupational Safety and Health Review Commission denied A.C. Castle Construction's petition for discretionary review.

Jim Laboe, a shareholder at Orr & Reno, Concord, N.H., and counsel for A.C. Castle Construction, argued his client had not been given fair notice the company could be cited under the single-employer theory.

"A.C. Castle Construction has been operating as a general contractor since January 2011 and has had multiple subs," Laboe said. "OSHA has inspected six work sites and concluded the sub was the employer. A.C. Castle Construction used the same business model and identical contracts for these jobs."

DOL granted third delay in overtime rule appeal

The Department of Labor (DOL) received a third delay in its appeal of a judge's order blocking DOL's overtime rule in April. The delay pushed back the deadline for DOL's next filing in the case by 60 days, from May 1 to June 30.

The most recent delay marked the first time the government cited a lag in confirming a labor secretary in its motions. The confirmation process had to restart after President Trump's original pick for the position withdrew Feb. 15. Alexander Acosta's nomination was approved by a Senate committee March 30, and the Senate confirmed Acosta as labor secretary April 27.

DOL's overtime rule would have doubled the salary threshold below which employees automatically would be eligible to earn overtime compensation to $47,500. The rule was scheduled to take effect Dec. 1, 2016, but a judge blocked it Nov. 22, 2016, finding DOL lacked authority under the Fair Labor Standards Act to enact the rule.

During his March 22 confirmation hearing with the Senate's Health, Education, Labor and Pensions Committee, Acosta questioned whether salary level is a good tool to use when determining overtime eligibility. He argued variations in the cost of living over time and by region mean a better number for the salary threshold may exist. The salary threshold was most recently revised in 2004.

"If you're to apply a straight inflation adjustment, I believe that the figure, if it were to be updated, would be somewhere around $33,000," Acosta told the Senate committee.

Contractor faces $645,000 in fines for safety violations

America 1st Roofing & Builders Inc., Mukilteo, Wash., is facing $645,000 in fines for 21 alleged safety violations after state regulators accused the company of willfully failing to protect its workers, according to Bloomberg BNA. The company is not an NRCA member.

A press release from the Washington Department of Labor & Industries states during four inspections of the company's job sites, the department found "eight violations of rules that require proper fall-protection equipment and work plans to protect employees working 10 feet off the ground or more."

Because of America 1st Roofing & Builders' history and prior knowledge regarding the hazards and regulations, the violations were cited as "willful" with a penalty of $66,000 per violation.

In a March 9 citation, an inspector reported seeing two workers on a roof who were not tethered—a three-time repeat violation that goes back four years. A March 17 citation alleges the company did not have a written fall-protection plan, and in a March 20 citation, an inspector reported spotting a worker without fall protection on a second-story steep-slope roof while exposed to a fall hazard of 18 feet and 8 inches.

America 1st Roofing & Builders denies the violations were willful and has begun the appeals process.

Herzog said the company's experience rating with the Washington Department of Labor & Industries is 0.81.

"The company takes the life, health and well-being of our employees as the No. 1 priority," Herzog said. "We disagree with the department's point of view that the violations were willful. And we are appealing all the violations."

Bias complaints filed with DOL increased during past decade

Since 2007, the Department of Labor (DOL) has collected at least $4 million from government contractors through investigations of discrimination complaints filed by employees, according to Bloomberg BNA, and the investigations have the potential to increase.

DOL's Office of Federal Contract Compliance Programs (OFCCP) conducts several thousand government contractor audits per year. The audits focus on compliance with various affirmative action and nondiscrimination requirements.

However, OFCCP also can accept and investigate bias complaints from employees regarding race, sex, color, national origin, religion, sexual orientation, gender identity, disability and veteran status, based on the audits of government contractors.

Bias complaints received by OFCCP have grown incrementally since fiscal year 2007 though the number of complaints has leveled off slightly in recent years. In fiscal year 2007, workers submitted 518 complaints to the agency. That number grew more than 30 percent to 691 complaints received in fiscal year 2016. Fiscal years 2012 and 2013 recorded the highest number of complaints at 780 and 790, respectively.

OFCCP has closed about 1,003 complaint investigations from fiscal year 2011 through March 8, 2017. Those complaints contained 1,575 claims of discrimination. Of those claims, bias based on disability and veterans' status appeared most often at 437 and 369, respectively, making up about 28 percent and 23 percent of the total claims. Race and sex discrimination followed with 316 claims and 211 claims, respectively. OFCCP is the only federal enforcement agency that provides affirmative action and nondiscrimination protections based on veteran status.

Under its governing rules, OFCCP must accept and investigate complaints that fall within its jurisdiction—when an employee works for a covered government contractor and alleges a type of discrimination prohibited under Executive Order 11,246, Section 503 of the Rehabilitation Act or the Vietnam Era Veterans' Readjustment Assistance Act.

OFCCP focuses on systemic discrimination when it analyzes government contractors' employment data during audits, trying to identify a companywide pattern, practice or policy that has a discriminatory effect on a broad class of workers. Generally, the agency also will keep and investigate complaints alleging systemic discrimination. OFCCP must refer individual complaints outside its jurisdiction to the Equal Employment Opportunity Commission.

However, of the 1,003 complaints closed since fiscal year 2011, only 15 percent included class claims—the remainder were individual claims. The number of complaints that included class claims is decreasing, reaching a high of 45 claims in fiscal year 2013 and dropping to 15 claims in fiscal year 2016.