OSHA vs. State Rules: Residential Fall Protection

The Washington, D.C.-based Occupational Safety and Health Administration has demanded some states that administer their own occupational safety and health agencies and enforce state-specific workplace rules adopt federal provisions related to residential fall protection. California, Kentucky, Oregon and Washington are four such states with provisions for residential fall protection that differ from federal OSHA’s. One of the federal requirements is that fall protection is required in roofing work at heights of 6 feet or greater. OSHA has singled out this requirement as one that the states must meet or OSHA will take over enforcement of all construction workplace rules.

Government statistics indicate state plan states that use a risk-based approach, where roof height is one of many factors considered when developing regulations, generally experience lower worker death and injury rates than comparable federal states.

The recent release of initial workplace fatality numbers by the Bureau of Labor Statistics, Washington, for 2014 has again brought the issue to the forefront and prompted the following Jan. 29, 2016, response from NRCA CEO William A. Good to Dean McKenzie, OSHA’s acting director of construction.

Dear Mr. McKenzie:

We are, of course, incredibly disappointed that you choose to carry on with your plan to impose federal rules, developed over the objections of the roofing industry, on states that have had considerable success with their own fall protection regulations. Those regulations have been developed, for the most part, with the ac- tive involvement of health and safety agencies, management and labor in the affected states. What’s more, in most of the states you cite as being deficient in meeting the federal “effectiveness” standard, the rate of accidents and fatalities from falls in construction is consistently better than it is in comparable states under federal OSHA’s jurisdiction.

And what’s even more incredible is that since federal OSHA unilaterally changed the rules for residential fall protection, the number of fatal falls has actually increased. OSHA’s promise that the cancellation of STD 3.1 in 2010 would make roofing workers safer has delivered the opposite result with 61 roofing workers killed by falls in 2012, 66 in 2013 and 69 in 2014. And yet OSHA marches on, unaffected by the facts.

How you can consistently ignore the data and instead rely on a vague definition of “effectiveness” is frankly beyond me, and makes absolutely no sense. It seems to me that an effective safety standard is one that actually works to protect workers from falls, rather than one that meets certain regulatory language.

In your letter you cite “standards that permit, for example, certain work to be performed at heights of 15 to 20 feet without positive fall protection.” As we have argued previously, the height of the roof is not the only issue that needs to be considered for effective fall protection. Rather, job-specific fall-protection assessment should take into account the type of building, the slope of the roof and the type of roofing materials being installed. This strikes me as being remarkably similar to the approach to safety Dr. Michaels, among others, has long advocated, but this approach is missing from OSHA’s heavy-handed efforts to impose federal rules on states.

In addition, if height were indeed the only issue, then perhaps you can explain why certain scaffolding operations are allowed up to 10 feet without fall protection, and why certain steel erection activities are allowed up to 30 feet without fall protection. And perhaps you can also explain why, over the period from 2010 to 2013, Texas had an average fatal construction fatality rate of 11.63, while California’s was 5.95.

The tragedy, of course, is that this isn’t just an academic conversation. Lives are at stake, and more are being lost in those states OSHA is responsible for than in those that have developed workable and, yes, effective, regulations.

I understand you choose not to meet with us to discuss this further. While I’m not surprised, I am left to wonder what is reasonably to be done to make roofing jobs safer. OSHA’s approach has made things worse, and you seem intent on just doing more of the same.

Sincerely,
William A. Good, CAE
Chief Executive Officer
National Roofing Contractors Association

Safety Railing System Provides Fall Protection around Roof Hatch Openings

The BILCO Co. has introduced the BIL-Guard 2.0, the second generation of its safety railing system.

The BILCO Co. has introduced the BIL-Guard 2.0, the second generation of its safety railing system.

The BILCO Co. has introduced the BIL-Guard 2.0, the second generation of its safety railing system. The BIL-Guard 2.0, like its predecessor, is a fixed railing system that provides a permanent means of fall protection around roof hatch openings. The new and improved model will be available this summer and boasts aluminum construction for increased strength and rigidity, a redesigned self-closing hinge and positive latching system, and stainless steel hardware throughout. The product is available in mill finish aluminum and with a safety yellow powder-coat paint finish.

Also compliant with OSHA fall protection standards (29 CFR 1910.23), the BIL-Guard 2.0 features an innovative mounting system that does not penetrate the roofing membrane. The new system is easy to install and does not require special training or certification for proper installation. The design features quick-mount curb brackets for a fast, secure attachment and pivoting mounting sleeves with compression fittings to lock the railing system into place. The BIL-Guard 2.0 is also equipped with a standard self-closing gate to maintain continuous fall protection to ensure that OSHA compliance is preserved.

BlueWater to Showcase Solar-powered Warning Light at IRE

A provider of modular guardrail systems and passive fall protection systems, BlueWater Manufacturing Inc., a Safety Products Group company, will be exhibiting at the 2016 International Roofing Expo (IRE), taking place Feb. 17-19, 2016, at the Orange County Convention Center in Orlando, Fla.

The International Roofing Expo is an annual trade show and educational conference where all segments of the roofing construction and maintenance industry come together for three days of face-to-face interaction, product review, education and networking.

BlueWater will be one of 1,100 booths exhibiting products, services and equipment for the roofing industry, including gutters, coatings/adhesives, built up, fasteners, machinery, metal, modified bitumen, roof pavers, renewable energy, walkways/ballast, shingles, slate, solar, spray polyurethane foam, tile, ventilation, waterproofing and more.

BlueWater will showcase its LumiGuard Solar-Powered Warning Light at IRE for the first time and promises to be an innovative and easy-to-install roofing safety product. The LumiGuard is a solar-powered warning light that can be easily installed onto current rooftop railings, gates, hatches, skylights and surrounding mechanicals.

“Our team is excited to offer this new and innovative product to the marketplace. LumiGuard adds a new dimension to roof safety during nighttime hours that just hasn’t existed until now,” says BlueWater’s vice president of Operations, Greg Kenton. “LumiGuard is easy to use and install for the end-user, and we’re proud to unveil it at IRE.”

For more information about BlueWater Manufacturing Inc. visit the company at booth No. 2407 at the 2016 International Roofing Expo, Feb. 17-19, 2016, at the Orange County Convention Center in Orlando.

A Roofer’s Guide to Safely Navigating the OSHA Employee Interview Process

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.

OSHA is asking questions. Are your employees ready to answer? When OSHA visits your next job site they will undoubtedly engage in what is known as the “Employee Interview” stage of the inspection. This is the part of the OSHA inspection where the compliance officer has the right to take your employees aside and interview them regarding company safety and health policies. The inspector will attempt to question your employees on everything from fall-protection equipment, company-training practices and site-specific hazards. If your employees are prepared for these interviews and remember they have certain fundamental rights the OSHA inspector may not violate, your company has a much better chance of avoiding costly OSHA citations.

What Will OSHA Ask My Employees?

The OSHA inspector will without hesitation ask your employee if they have been trained on fall protection. The inspector will ask very specific questions regarding how the employee was trained, who performed the training and how often this training occurred. Employees need to be prepared to answer these questions, and company training policies should allow the employees to tell the inspector they are frequently trained by the company’s safety director or a third-party safety consultant. The employee should also be able to tell the inspector that he or she was trained once upon hire and retraining occurs at least once a year. Additionally, the employee will need to advise the inspector about any videos or lectures they are required to attend to complete the company’s training program. It will further support your defense if the employee notifies the inspector about any weekly toolbox talks or routine safety meetings they are made to attend at specific jobs.

All roofers should also be able to recite OSHA’s fall-protection standard. This has become a major source of citations in recent months and is easily preventable if employees are prepared for the OSHA interview. The employees must report to the OSHA inspector they are fully aware of OSHA’s regulation requiring the use of fall protection at heights of 6 feet or more above a lower level. It is not necessary for employees to identify the exact provision within the Code of Federal Regulations, but they must be able to tell the inspector they are trained to recall that regulations exist that require all employees working on a surface with unprotected sides and edges at 6 feet or more above a lower level be protected from falling by the use of a fall-protection system. The magic words required to support your company’s defense against this type of citation are 6 feet. The employee must tell the inspector they always wear fall protection when working at a height of 6 feet or more.

Another favorite interview tactic of the OSHA inspector is to question an employee on the dangers of a fall. Often times this question is so alarmingly simple roofers have trouble giving OSHA the correct answer. If OSHA asks employees if they are aware of what happens if someone falls from a roof, the best possible answer will always be to inform the inspector they have been trained to recognize death or serious injury can occur from a fall. If an employee makes the mistake of reporting to the inspector that falls are not always dangerous or that roofers can some-times survive a fall, there is a strong chance the company will be cited for an inability to properly train employee on the hazards associated with a fall.

OSHA inspectors also prefer to ask employees if all falls are preventable. Most roofers would immediately reply that falls are preventable but construction is a dangerous and high-risk profession. This is not the answer your employees should provide to OSHA. The administration wants to know your employees are trained to recognize the fact that all falls are preventable. An employee should never tell OSHA that injuries are an unpreventable reality on a construction site. If OSHA inspectors ask your employees if falls are preventable, the answer should always be to inform the inspector that all falls are 100 percent preventable.

Must My Employees Speak to the Inspector?

OSHA has what is referred to as administrative probable cause. This gives OSHA the legal right to enter your job site and begin an inspection. OSHA’s powers essentially allow the administration to conduct inspections at almost any active place of employment. However, these powers do not give OSHA inspectors the right to detain or hold anyone for questioning against their will. The employees’ participation in the OSHA inspection process is completely voluntary. An employee may, under their own free will, choose to speak to the inspector, or the employee may choose not to speak to the inspector. It is very important to remember that an employer must never instruct, order or command an employee not to speak with OSHA inspectors when they arrive onsite. However, the employer has the right to educate his or her employees that no one is required to speak with OSHA if they elect not to.

How Long Can the Inspector Speak to My Employees?

If your employees voluntarily choose to speak to the inspector, the interviews must be completed within a reasonable amount of time. The Occupational Safety and Health Act states the interviews are to be completed in a reasonable manner. Additionally, OSHA’s Field Operations Manual conditions that interviews are to be as brief as possible. With such open time limitations, there have been varying arguments by OSHA and employers as to exactly how long an OSHA inspector may speak with an employee. It is traditionally accepted OSHA may take no longer than five to 10 minutes for field interviews with company employees. This amount of time can be less or more, depending on the type of investigation, knowledge of the employee, or if the inspection involves any injuries or fatalities. It is highly recommended the employees know their rights before speaking with the inspector. These rights include the employee’s ability to stop the interview at any time if he or she feels uncomfortable or believes the interview has gone on too long.

Can Our Company Attorney Be Present?

In almost all investigations, non-supervisory employees must speak to the inspector without the assistance of counsel. Supervisors, crew leaders and foremen are all entitled to an attorney during their interview because of the supervisory nature of their position. Administrative case law has held that any employee who has been granted authority over other employees is considered a supervisor. This authority has been defined as any time an employee is granted the ability to control the method and manner in which he or she performs assigned tasks. Employees who are not given supervisory responsibility and who do not have the ability to control the method and manner of the assigned work may speak to the inspector in private. However, always recall the interview process is entirely voluntary and the employee may request a company representative attend the interview with them. This is very important and is often overlooked by companies during OSHA inspections. If the employee specifically and voluntarily requests the interview take place with a supervisor or attorney present, the OSHA inspector must submit to the employee’s wishes.

How Should an Employee Handle Questions Regarding Training?

Company safety policies and training programs should be comprehensive and effective at all times. These training sessions, retraining classes and field safety exercises should result in a roofing crew that can recognize all hazards relating to our industry. The employees should be trained on each and every safety protocol to prevent against these hazards. If company training programs address all these issues, the employee will have no problem informing OSHA he or she has been trained on all relevant safety regulations. An employer is almost guaranteed an automatic citation if an employee simply concedes to an inspector that he or she has never received training in an area of roofing safety.

Inspectors will ask employees very complicated and confusing questions on a job site. This has been a major factor in recent citations and has resulted in significant penalties against roofers across the nation. For example, inspectors will often use technical or scientific language in an attempt to confuse a roofing employee to the point where the roofer acknowledges he or she has never heard of such terms. This sort of behavior from OSHA inspectors should not be tolerated if your employees are properly educated and prepared for OSHA interviews. An employee should not be coerced into telling an inspector they have not been trained or do not recognize a specific safety hazard. Instead, the employee should inform the inspector the company’s training program includes all hazards a roofer could face on a job, and if the employee is ever unsure of how to handle a specific safety issue, he or she need only refer to the company safety manual, which is always on the job site in every company vehicle.

When OSHA arrives at your next project, remember the roofing contractor who has properly prepared his or her employees for OSHA interviews will prevail. Today’s contractors must consistently defend their companies against OSHA and the federal government’s increasing involvement in the construction industry. However, a well-educated crew who has been informed of their rights with regard to the OSHA interview process can make all the difference when defending your company against an OSHA citation.

How to Choose a Roofing Contractor

The greatest challenge for anyone responsible for any physical asset is how to keep it operating properly. The key is finding qualified maintenance providers to solve problems that are beyond our own abilities. With the advent of the Internet, our options are limitless. If we need a doctor, we Google the type of doctor we need and get a list of options. The same can be said for all other types of goods and services. But with more options, are we really getting more quality from these numerous choices?

Unfortunately, people and companies can make any claim on the Internet and, as long as they don’t slander anybody else, it’s perfectly legal. I get emails every day claiming to have a cure for cancer, obesity, hemorrhoids, etc., and all I have to do is log on to the website, enter my credit card number and the “cure” will be sent to my house within 72 hours.

Everyone knows this is a hoax, right? Yet more and more of these websites keep popping up every day. Clearly someone is falling for these frauds or there wouldn’t be any! But I digress. The topic of this article is “how to choose a roofing contractor”, not “how not to get ripped off using the Internet.”

Preliminary Questions

Consequently, if I have a roof leak, the first thing I will do is conduct a web search for roofing contractors in my area. I will probably look for ones located closest to my facility. I will call the company and say something like: “I have a roof leak. Do you fix those?” The contractor will probably say, “Yes, I can fix leaks.” I will then say: “Great! When can you be here?” And the rest is, as they say, history. Hopefully, the contractor I selected is licensed, bonded, insured and competent. As you can see, I didn’t ask any of those questions, so I really don’t know. But he must be good; he was listed on the Internet!

If he’s not licensed, there is probably a pretty good reason why he isn’t—he’s not a real contractor, just kind of a handyman. If he’s not bonded and there is a problem with the work he performs and he refuses to fix his mistakes, I will have no recourse to take legal action because he doesn’t have a bonding company backing his work. If he isn’t insured and he falls off my roof, he can sue me personally for causing him bodily injury.

Before any contractor comes out to your facility, make sure the company is licensed, bonded and insured. Always ask for the license number, bonding company name and number, and personal liability insurance policy number. Once you get this information, verify these numbers and providers. I once had a contractor give me his license number only to find out the number was made up! If the information checks out, set up an appointment for the contractor to evaluate your problem. Don’t set the appointment and then check out the company’s qualifications. If a roofer comes out, climbs on your roof and falls off without liability insurance, you are on the hook paying for “Mr. FastRoofs Inc.’s” medical bills or worse: he sues you for not having fall protection on your roof—not that you should know what that is—and rest assured you will pay his medical and legal bills!

Once you have determined a certain level of legitimacy, you should also check what other types of certifications the contractor has attained. I would determine whether he or she belongs to the Better Business Bureau. This is no guarantee that these companies won’t have problems, but it does show a willingness to be responsible once the work has been completed. Also, determine whether the company belongs to trade associations. A roofing contractor should be “a member in good standing” and belong to the Rosemont, Ill.-based National Roofing Contractors Association or one of its affiliates.

Don’t assume just because a company says it belongs to a trade association it does. I once dealt with a painting contractor that listed on its website belonging to the Painting and Decorating Contractors of America, Maryland Heights, Mo. I called the trade association and learned the contractor did not belong at all! In other words, if a contractor makes a claim, make a call and check it out—no matter what!

The Proposal

Once you have properly vetted your prospective contractor, call him and describe your problem in the most basic terms. Most people want to solve the problem themselves and then just have the contractor effect the change.

Customers often will call and say: “I have a lot of problems on my roof. Can you come out and give me a quote for a new roof?” I am sure many of you are reading this and are completely incredulous this happens but, be honest, it’s human nature to not want to seem ignorant. As a matter of fact, I find those with the most experience are quickest to opine on their problems when they really don’t have a clue as to what’s wrong with their roof.

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GAF Partners with SLATOR to Make Working on Steep Roofs Safer

GAF announced an alliance with SLATOR, creator of a new safety device helping contractors to make the dangerous business of working on steep roofs safer and more efficient.

Falls are the leading cause of death for construction workers, with 39 percent from roof falls, according to the U.S. Department of Labor. Fall protection is also the most frequently cited OSHA violation, which carries hefty fines. SLATOR helps to avoid these situations by offering an easier, faster and safer way to make roof repairs on asphalt or slate shingle roofs. The sturdy metal bracket bolts to a roof to serve as a secure ladder clamp and harness anchor point.

The red SLATOR Roof Bracket is ANSI certified and OSHA compliant, with the ability to hold up to 5,000 pounds—roughly the weight of a rhino or small truck—from a rooftop. The blue SLATOR-Mini is a smaller ladder clamp without the anchor feature.

“We invented the SLATOR to help us work better, work safer and work faster on steep slate and asphalt shingle roofs,” says SLATOR inventor Ronny Roseveare, a 20-year roofer and remodeler. “We’re very excited about our alliance with GAF and look forward to offering enhanced fall protection to GAF Master Elite, Master Select, Certified and Master Contractors across the country.”

NRCA Releases Updated Toolbox Talks

The National Roofing Contractors Association (NRCA) has updated its NRCA Toolbox Talks publication to include the latest developments in safety training for roofing workers.

NRCA Toolbox Talks is designed specifically to enable foremen and trainers to review important safety lessons with their crews on a weekly basis. Each lesson is structured for various presentation styles and includes safety-training tips and key points to stimulate questions and discussion.

Hands-on training conducted regularly is the most effective way for roofing contractors to reinforce worker safety, comply with OSHA regulations and improve profitability.

Topics in NRCA Toolbox Talks include equipment safety, fall protection, OSHA requirements, hazard communication, hot asphalt safety and personal protective equipment.

Fall-protection Attachment for Standing Seam

Fall Protection Distributors LLC has released its SSRA1, a patented, non-penetrating life-saving device.

Fall Protection Distributors LLC has released its SSRA1, a patented, non-penetrating life-saving device.


Fall Protection Distributors LLC has released its SSRA1, a patented, non-penetrating life-saving device. It consists of a solid 6061-T6 aluminum body with 12 stainless-steel set screws. The standard assembly also includes a 5,000-pound certified d-ring for single-man attachment. The SSRA1 weighs 4 1/2 pounds and installs with basic hand tools. It can be used for temporary or permanent attachment without penetrating standing-seam panels. The design, which works on more than 500 standing-seam panel profiles, allows for attachment of devices from various fall-protection manufacturers.

AES Raptor and Premier Rail Systems Merge to Focus on Safety

Falling is easily one of the most dangerous aspects in the roofing and construction industry. When a fall occurs on a job site, it often results in serious injury or death. In the effort to prevent such hazards, AES Raptor LLC of North Kansas City, Mo., and Premier Rail Systems Inc. of Kansas City, Kan., have merged to create Leading Edge Safety LLC.

According to the The National Institute for Occupational Safety and Health (NIOSH), falls are the leading cause of fatal injury in the construction industry. In fact, half of all work-related fatal falls in the United States occur in the construction industry. NIOSH’s specific prevention recommendations have included site-specific evaluation of potential fall hazards; implementation of fall protection programs; proper erection, maintenance and use of access equipment; installation and maintenance of appropriate barriers (guard rails, such as the RaptorRail and/or covers, such as the Skynet, on floor openings); along with proper selection and use of fall restraint/fall arrest systems in situations where exposure to falls cannot be eliminated.

Leading Edge Safety LLC offers solutions for all your fall-protection needs. Expanding its lineup to include everything from mobile fall-protection anchor points (TriRex, Stinger and R2000 mobile fall protection carts) to temporary and permanent perimeter railing systems. By creating the Leading Edge LLC, the companies can now offer a one-stop solution to the products that allow you to continue a safe and productive work site. Leading Edge Safety LLC is led by Brent Smith, formerly of AES Raptor LLC, and Mike Budenbender, formerly of Premier Rail Systems Inc. Sales will be managed by Jeremy Martin and Matt Small, while operations will be managed by Travis Budenbender.

One Lanyard Suits Workers of Different Weights

Honeywell has released its Hybrid Energy-Absorbing Lanyard.

Honeywell has released its Hybrid Energy-Absorbing Lanyard.

Honeywell has released its Hybrid Energy-Absorbing Lanyard, which eliminates the guesswork involved in choosing the appropriate lanyard for workers of different weights. The lanyard is Canadian Standards Association certified for Class E4 lanyards, which are designed for lighter workers (100 – 254 pounds), and Class E6 lanyards, which are for heavier workers (200 – 386 pounds). The Hybrid Energy-Absorbing Lanyard, which is available in a variety of styles, increases worker safety by eliminating the need to stock and choose between two types of lanyards.