Court Ruling Allows Continued Development of Public Health and Safety Standards

The United States District Court for the District of Columbia (Hon. Tanya S. Chutkan) has issued a ruling that will support federal, state and local governments’ efforts to support public health and safety through the use of voluntary consensus codes and standards. The court granted a motion for summary judgment filed by a number of standard development organizations (SDOs), including the National Fire Protection Association (NFPA), ASTM International and ASHRAE. The court’s ruling permanently enjoins Public.Resource.org from its previous systematic infringement of numerous SDO copyrighted codes and standards. The ruling vindicates the longstanding public-private partnership pursuant to which government entities may, if they choose, incorporate by reference high quality safety codes and standards.

“We are pleased with the court’s decision, which recognizes the importance of a time-tested process that serves governments and individuals well and is vital to public health and safety,” says Jim Pauley, president of NFPA.

The history of not-for-profit SDOs developing voluntary consensus standards goes back more than a century. Governments, businesses, and individuals across the country rely on a variety of works, from product specifications and installation methods to safety codes and standards.  SDOs, not governmental agencies, underwrite the costs of developing standards.
 
“The court’s ruling means federal, state and local agencies can continue to rely on not-for-profit SDOs to develop voluntary consensus standards at a high level of excellence and at minimal cost to government,” says Kathie Morgan, president, ASTM International.

SDOs pay for the standard development process and invest in new standards with the money earned selling and licensing their copyrighted works.  This model allows SDOs to remain independent of special interests and to develop up-to-date standards.  It also allows the U.S. government, and governments at all levels, the freedom to decide whether to incorporate these standards by reference without a drain on their resources.
 
“We and many other SDOs already provide free online access to many standards as part of our commitment to safety,” says Timothy G. Wentz, ASHRAE president. “And, preventing the infringement of copyrighted material will allow not-for-profit SDOs to continue meeting the needs of the people and jurisdictions we serve.”
 
For more information about this issue visit the website.

OSHA Sets Rule for Affordable Care Act Whistleblower Complaints

The Washington, D.C.-based Occupational Safety and Health Administration (OSHA) has published a final rule that establishes procedures and time frames for handling whistleblower complaints under the Affordable Care Act (ACA) . The rule protects employees from retaliation for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. It also protects employees from retaliation for raising concerns regarding conduct they believe violates the consumer protections and health-insurance reforms found in Title I of the ACA.

The rule also establishes procedures and time frames for hearings before Department of Labor administrative law judges in ACA retaliation cases, review of those decisions by the Department of Labor Administrative Review Board and judicial review of final decisions.

“This rule reinforces OSHA’s commitment to protect workers who raise concerns about potential violations of the consumer protections established by the Affordable Care Act or who purchase health insurance through an Exchange,” says Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.

In 2013, OSHA published an interim final rule and requested public comments. The final rule responds to the comments and updates the rule to clarify the protections for workers who receive financial assistance when they purchase health insurance through an Exchange.

OSHA’s Affordable Care Act fact sheet provides more information regarding who is covered under the ACA’s whistleblower complaints protection, protected activity, types of retaliation and the process for filing a complaint. The fact sheet is available at Whistleblowers.gov/factsheets_page.html.

Survey Reports Health Impacts of Buildings Influence Design Decisions

Nearly three quarters of U.S. architects say the health impacts of buildings are influencing their design decisions. That finding parallels the market demand by building owners, with a solid two-thirds surveyed also reporting that health considerations affect how they design and construct buildings.

These findings and others were released in a ground-breaking report The Drive Toward Healthier Buildings 2016 by Dodge Data & Analytics, in partnership with Delos and the Canada Green Building Council, and with the participation of the American Institute of Architects as a critical research advisor and partner.

The report documents the value and need for more of the research, education, collaboration and outreach efforts that are hallmarks of the AIA’s Design and Health initiative. Since 2013, AIA has invested in expanding the body of knowledge on the connection between design and health, including professional continuing education and the 17-university Design & Health Research Consortium.

“As a society, we spend nearly 87 percent of our time indoors,” said AIA chief executive officer Robert Ivy, FAIA. “Designing and constructing ‘healthy buildings’ is important to our own well-being.”

“Working with architects, we can accelerate this need for healthier buildings and improve quality of life across the country,” Ivy said. “This report documents how architects can help clients have a positive effect on human health – through the built environment.”

That positive result includes increasing employee participation and fulfillment, the report found. Sixty-nine percent of owners who measure employee satisfaction and engagement reported improvement in both attributes due to their healthier building investments.

According to the report, the top five healthier building features implemented by architects are:

  • Better lighting/daylighting exposure.
  • Products that enhance thermal comfort.
  • Spaces that enhance social interaction.
  • Enhanced air quality.
  • Products that enhance acoustical comfort.

Use of nearly all of these is expected to grow considerably along with further pioneering approaches like the use of biophilic design features, spaces that enhance tenant mood and opportunities for physical activity, the report found.

“The increased attention to building health impacts is just beginning,” says Stephen A. Jones, senior director of industry insights at Dodge Data & Analytics. “In a similar way several years ago, companies engaged in green construction because of the demonstrable business and financial benefits they were able to achieve. The findings of this report demonstrate that the focus on buildings that enhance the health and well-being of their occupants is likely to follow a similar trajectory, boosted by those who have committed to sustainability in their organizations.”

Additional highlights from the report:

  • Most owners are not aware how healthy building investments result in business benefits like leasing rates (52 percent) and asset values (58 percent). However, among those that report an effect, 73 percent report faster rates and 62 percent report higher values.
  • According to architects and interior designers, the top driver for greater investment in healthier buildings is improved public awareness of the health impacts of buildings.
  • Public health professionals report that the most common policies currently in place to support healthier building practices are requirements to avoid the use of hazardous materials in buildings (65 percent). The key policy areas that are currently being considered include incentives that encourage physical activity (47 percent) and requirements for ongoing building air quality measurement (46 percent).
  • Ninety-two percent of public health professionals also report that their institutions are actively conducting research on the influence buildings have on occupant health and well-being.
  • Architects are most aligned with their clients (owners) when it comes to understanding the goals of healthy building investments, as compared to other industry players, recognizing that improved tenant/employee satisfaction and happier and healthier occupants is the primary focus for owners related to their investments.
  • The largest percentage of owners, at 42 percent, identify that they are very interested in partnering with architects to help increase their ability to implement healthy building practices. While low, it is notably more than the next two highest potential partners – facility managers and educational institutions, both at 31 percent.

Download the full study The Drive Toward Healthier Buildings 2016: Tactical Intelligence to Transform Building Design and Construction SmartMarket Report.

The report also received support from CBRE, Dewberry and the U.S. Green Building Council, with additional support from Armstrong Ceiling Solutions and the Regenerative Network. Other organizations that participated in the research process include the American Society of Interior Designers, the National Association of Real Estate Investment Managers and the World Green Building Council.

NIBS States Proposed ABA Resolution to Make Codes and Standards Free Could Reduce Safety

The National Institute of Building Sciences issued an open letter to delegates attending the American Bar Association (ABA) Annual Meeting in August informing of the potential impacts if they vote to support a proposed resolution. The resolution—which advocates that copyrighted codes and standards incorporated by reference in legislation and regulation be made available for free—would alter the way codes and standards are developed in the United States.

In the U.S. construction industry alone, there are hundreds of copyrighted codes and standards that impact everything from seismic requirements and wind loads to water use and life safety. The standards developing organizations (SDOs) that develop these codes and standards have thousands of members, employees and volunteers that participate in the process to incorporate best practices and lessons learned to improve the standards. Each industry, from aeronautics and agricultural to electronics and telecommunications, has a similar structure and industry participation to address their specific needs. Such standards improve safety, drive innovation and improve commerce, both domestically and around the world.

The U.S. Government recognizes the benefit of private industry standards development, as directed by the National Technology Transfer and Advancement Act (NTTAA, P.L. 104-113) and Office of Management and Budget (OMB) Circular A-119.

If the ABA’s suggested resolution and related advocacy campaign is successful, private-sector-developed standards would be subject to new requirements due to their incorporation by reference in legislation and regulation, and the ability for SDOs to recoup development costs would change considerably.

The development of codes and standards is expensive. Today, the cost is born by those who are ultimately impacted by the standards (whether by participating in the process or purchasing the resulting document). By making such information free online, the ABA resolution would hamper cost recovery through such mechanisms. The result would be that private-sector organizations may no longer be able to invest in the development process, leaving existing standards to remain stagnant (and thus inhibiting innovation) and shifting the responsibility (and expense) of developing future standards to the government.

ABA’s proposed resolution attempts to mitigate any copyright concerns by encouraging government agencies to negotiate licenses with SDOs. However, this change would require agencies to hire staff and implement contracting mechanisms, making it necessary for tax payers to cover the cost of standards development.

The National Institute of Building Sciences—which was established by the U.S. Congress to work with both the public and private sectors to advance building science and the design, construction and operations of buildings to meet national goals of health, safety and welfare—is extremely concerned that the ABA is advocating a one-size-fits-all legislative vehicle that will alter the long-standing tradition of private-sector-developed standards in the United States. The result could reduce safety, increase costs and add a burden to the government and tax-paying citizens.

In lieu of moving forward with the resolution, the Institute suggests the ABA focus on engaging in a meaningful dialogue with the SDO community to help address the changing nature of access to copyrighted materials through the internet and other electronic sources, and, after taking the long-term goals and impacts into consideration, identify a mutually acceptable path forward.

Read the letter.

The Hidden Costs of Workplace Accidents

Asking an employee why he or she wants to be safe is like asking them why they work. Overwhelmingly, every roofer I ask this question to tells me he or she wants to go home at the end of the day. He doesn’t want to lose any time because losing time is losing money. And, believe it or not, money can buy happiness. A New York City carpenter once told me he fell 35 feet and broke multiple bones. He was out of work for two years, during which he collected $57,000 from workers’ compensation insurance. If he worked, he would have made more than $100,000 per year. In his words, “I almost lost my big house on Long Island and my high-maintenance wife.”

In addition to how accidents impact workers’ finances, they can seriously affect a company’s bottom line. A good Health and Safety Program can save a company money by cutting workers’ compensation insurance premiums; heading off needless, expensive and embarrassing OSHA citations; avoiding expensive and embarrassing lawsuits; increasing the efficiency of the workforce; and boosting workers’ morale, which consequently will improve their productivity. A good Health and Safety Program also will give a business owner peace of mind by knowing all his or her employees are working safely.

In my experience, project managers, job-site superintendents and crew foremen are the people who are reluctant to want job-site safety. They believe following safety standards slows the job down. Management is responsible for making money in a business that regularly grapples with close bids, tight schedules and limited job budgets. However, these factors do not take into account the “hidden” costs of workplace accidents. Oftentimes, accidents are more expensive than people realize because of these hidden costs.

Examples of Hidden Costs

Some costs created by accidents are obvious; for example, workers’ compensation claims cover medical costs and indemnity payments for an injured or ill worker. What people often don’t think about are the hidden costs, like the costs to train and compensate a replacement worker, repair damaged property, investigate the accident and implement corrective action, as well as maintain insurance coverage. Even less apparent are the costs related to schedule delays, added administrative time, lower morale, increased absenteeism and poorer customer relations.

Washington, D.C.-based OSHA’s Safety Pays Program states the lower the direct costs of an accident, the higher the ratio of indirect to direct costs. The more accidents that occur in a workplace, the higher the costs in increased insurance premiums and greater indirect costs. According to the Boca Raton, Fla.-based National Council on Compensation Insurance Inc., these include the following kinds of indirect costs:

  • Any wages paid to injured workers for absences not covered by workers’ compensation.
  • The wage costs related to time lost through work stoppage associated with the worker injury.
  • The overtime costs necessitated by the injury.
  • Administrative time spent by supervisors, safety personnel and clerical workers after an injury.
  • Training costs for a replacement worker.
  • Lost productivity related to work rescheduling, new employee learning curves and accommodation of injured employees.
  • Clean-up, repair, and replacement costs of damaged material, machinery and property.

Some of the possible indirect costs not included in these estimates are:

  • The costs of OSHA fines and any associated legal action.
  • Third-party liability and legal costs.
  • Worker pain and suffering.
  • Loss of good will from bad publicity.

The Human Factor

Direct and indirect costs certainly are motivation for preventing workplace accidents. In fact, when I ask roofing company owners why they want their employees to work safely, many automatically default to the money answer. However, in most cases, business owners are generous, caring members of their communities. I once sat across the desk of an owner of a large construction company after his team experienced a fatality. He asked me, “How do I look at myself in the mirror every morning, knowing one on MY guys didn’t go home today?” Even though he did not know this employee personally, he considered this worker one of his guys. Ultimately, it’s the human factor that is the most important reason to ensure safe working conditions on job sites.

My favorite phrase is “To protect my employer, I protect his employees.” I think they’re words to live by.