Three Key Questions About OSHA Inspections

OSHA will investigate a jobsite for a number of reasons. A representative from OSHA will show up if an employee has issued a complaint against you, if there is a recent fatality, or if there is an imminent threat they have identified. The dangers of fall-related injuries in the industry have been well documented, and this has prompted inspectors in your area to be on the lookout for roofers. Additionally, roofers are the easiest to cite due to the fact that roofing is a highly visible construction trade and an inspector does not have to use much effort to determine the likelihood of a dangerous situation that needs inspecting.

OSHA inspections can be stressful, but they can be less stressful if you know your rights and the proper procedures to follow during an inspection. Here are the answers to the most common questions I encounter when it comes to OSHA inspections.

Question #1: Do I have to comply, and what happens if I refuse OSHA access?

First and foremost, you need to know that OSHA has a legal right to inspect your jobsite. OSHA has what is called “administrative probable cause” to inspect and investigate your project. OSHA’s probable cause is more easily obtained than that of other agencies. An officer of a city, state, or federal law enforcement agency needs a much more specific probable cause to enter a private citizen’s property. This is not the case with OSHA. When an active construction project is taking place, there is an inherent risk of danger and injury, and this gives OSHA all the administrative probable cause they need.

This is not to say that you and your site superintendent do not have the right to deny OSHA access to the project and demand that they get a warrant. The site superintendent has the option to consent to OSHA’s inspection or deny them access to the project. The superintendent is well within his or her rights to tell the inspector to get a warrant. However, if you tell OSHA to get a warrant, they most certainly will. Because of OSHA’s broad power to oversee safety within the United States, they can obtain a warrant from a judge or magistrate. Once OSHA obtains a warrant for a site inspection, their inspection can become much more invasive. This means that OSHA inspectors can get permission from a judge to examine documents, conduct extensive interviews, and also perform scientific tests on items such as air quality, presence of combustible material, or any other danger.

The bottom line is that it is rarely a good idea to tell an OSHA compliance officer to get a warrant. The reasoning behind this has to do with the scope of OSHA’s inspection rights under the Code of Federal Regulations (CFR). The CFR demands that OSHA’s inspection be “reasonable.” This essentially means that they are limited to inspect only the workers, equipment, and materials which are within “plain sight.” “Plain sight” is a doctrine borrowed from criminal law and the Fourth amendment, which says that a government agent may not sample or manipulate anything that is not within his or her reasonable line of sight. If an agent violates this doctrine, it is possible that all the information they obtained during the inspection may be suspect.

Question #2: What should I do during the inspection, and are there areas I can prevent OSHA from viewing?

When OSHA is on site, the superintendent should remain alert, aware, and advocate for his or her company. The superintendent has specific rights granted to them under the CFR, and they must use those rights in order to protect themselves, the business, and the men and women who rely on that business for their livelihood.

The superintendent has the right to accompany the inspectors wherever they go on site, and he or she should do so. The inspector should be followed on the roof, through the rafters, and wherever else they intend to go. The superintendent also needs to ask a few key questions of the inspector and needs to ask them often. Mainly, he or she needs to know why OSHA is there. What is the scope of their investigation? What specifically are they there to see? Once the superintendent knows what OSHA wants, he or she can then limit them to what they can see. If an inspector attempts to go outside that scope, then the superintendent needs to notify them immediately.

Question #3: What happens during the inspection?

During the inspection, the OSHA compliance officer will make a walkthrough of the project. The inspector’s main focus is usually on fall protection equipment and fall protection practices of the crew. Always make sure every harness, rope, and lanyard on site is properly maintained. If a harness has been previously impacted, it does not need to be on a jobsite. Such equipment should be discarded and replaced. Roofers are cited far too often because an old harness or frayed rope stays on a truck when it should have been discarded. This is an easy citation to avoid. Throughout the inspection, the OSHA officer may perform brief interviews with the crew and question crew members on various issues relating to the inspection. OSHA has the right under the CFR to perform these interviews in private, away from the superintendent. Although the questioning can be private, it must also be brief. The superintendent needs to object to any questioning that goes on for an excessive amount of time.

Next, an OSHA inspector may ask to interview the managers and superintendents on site. This is a common practice, and OSHA inspectors are within their rights granted by the CFR to request such an interview; however, company managers have the right to refuse an interview without counsel present. This is important to remember because poor statements about safety from a crewman can hurt your case, but poor statements about safety from a supervisor can destroy your case. The only discussion going on between a supervisor and an OSHA compliance office during the walkthrough inspection should involve the scope of the inspection. The superintendent should not answer any questions regarding safety protocols, equipment, or practices without the assistance of counsel. If OSHA wants to speak with a manager, supervisor, or superintendent, they must do so with an attorney present. Paying for a lawyer may be expensive, but paying for a “willful” OSHA citation can bankrupt a roofing company.

Remember Your Rights

An OSHA inspection can be a trying and frustrating time. A roofing contractor’s best defenses against costly citations are to teach satisfactory safety techniques within the crew; update and maintain the required safety equipment; ensure everyone is aware of the jobsite-specific safety plan; and remember their rights when OSHA visits the jobsite.

About the author: Anthony Tilton, Partner at Cotney Construction Law, focuses on all aspects of construction law and works primarily on matters relating to OSHA defense. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

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.

New Crossovers Provide Safe Access Over Rooftop Obstructions

Kee Safety Inc. introduces its Crossover Safe Access Platforms to provide safe, efficient routes for maintenance, construction, and other personnel when accessing rooftops of flat and low-sloped buildings. Engineered to comply with OSHA safety standards, the new multi-purpose Crossovers feature a Kee Walk anti-slip modular walkway and platform system with handrails that enables workers to step over piping, HVAC equipment, and other obstructions as well as traverse changes in rooftop levels. The Crossovers can accommodate standing seam, metal profile, and other roof types, and they install without penetrating the roof membrane, according to Kee Safety.

Steps and platform floors are built using high-grade nylon treads, checker plate, or steel grating. Base feet can be roof-mounted, have fixed feet, or a combination of both. Safety railings are constructed of Kee Lite Aluminum or Kee Klamp Galvanized Steel for strength, durability, and corrosion-resistance. The new Crossovers integrate seamlessly with Kee Safety OSHA-compliant fall protection systems and equipment to deliver a complete rooftop safety solution, the company states.

Each Crossover Safe Access Platform is custom designed based on the specific rooftop application criteria to meet worker access and safety needs. They can be delivered in fully pre-assembled systems or with modular sections, or partially-assembled flat-pack containers for simple, on-site installation, according to the company.

For product details and to download a free brochure, visit: https://www.keesafety.com/products/rooftop-crossove

For more information, visit www.KeeSafety.com

Witness Statements and OSHA Inspections

During any OSHA inspection, the Compliance Safety and Health Officer (CSHO) will more than likely take witness testimony from crew members that are on site. This CSHO will hand-write the interview answers and ask the employee to sign the witness statement. Most employers and employees do not understand their rights during an OSHA inspection and do not know that they are not required to sign witness statements. This article explores the use of witness statements by OSHA and suggests alternatives to signing a witness statement.

First and foremost, it should be noted that all members of management, including officers, directors, and owners, have the right to have counsel present during any OSHA interview. In addition, any supervisory employee is also considered part of management, and therefore has the ability to have counsel present during the interviews. When OSHA inspects a jobsite, supervisory employees such as crew leaders, foremen, superintendents, and/or project managers should assert their right to have counsel present before giving any testimony to OSHA. In other words, the supervisor should state their name, position and assert the right to counsel. This will give the individual an opportunity to discuss the alleged violations with management and counsel prior to being interviewed. It will also allow management and counsel to be present during the interviews. Generally, these interviews occur at counsel’s office or OSHA’s area office rather than the jobsite, thereby limiting exposure to additional potential violations.

With regard to crew member interviews, management and counsel for management cannot be present during non-supervisory employee interviews. However, if the employee requests that counsel be present for the interview, OSHA must allow counsel to be present. During the interviews, OSHA will ask a variety of questions regarding safety training and jobsite-specific acts or omissions. For example, common safety training questions include how to properly tie off, use personal protective equipment (PPE), properly install anchor points, properly tie off ladders, knowledge about hydration and water breaks, knowledge regarding risks associated with swing radius, inhalation of chemicals and/or silica, as well as other potential hazards.

The jobsite-specific questions will focus on the who, where, when, what and how. In particular, questions will be asked to employees regarding the training they received and commands they received on the date of the incident. For example, if employees are not properly tied off as required, the CSHO will ask whether employees were instructed to tie off on the date of the inspection, whether supervisory employees inspected the crew members during construction, and the reason(s) why employees were not tied off. OSHA often asks whether employees were not wearing fall protection because they were told to complete work at an accelerated pace or to meet certain schedule obligations. If an employee answers in the affirmative, it could be damaging to the employer.

While the testimony is being taken, the CSHO will be drafting a witness statement, which generally contains self-serving declarations for purposes of prosecuting the employer. No one is required to sign a witness statement. Both supervisory and non-supervisory employees can refuse to sign witness statements. The CSHO may take his/her own notes and use that as evidence or have the local area office issue a subpoena requiring that his/her testimony be taken under oath. This delay in obtaining testimony may be beneficial for the employer because it will allow the employee to have the opportunity to think about his/her answers and be in a better mindset for purposes of providing testimony. It also gives counsel and management an opportunity to speak with and prepare the employee for the interview if he or she wishes to do so. Obviously, regardless of when testimony is provided, all employees must always tell the truth.

OSHA relies heavily upon the witness statements during inspections to issue citations. Employees need to understand that interviews are voluntary and that they have the right to decline the interview outright. In the absence of a subpoena, an interviewee cannot be compelled to do anything during the voluntary interview. Additionally, an employee also has the right to refuse the recording of an interview, whether video or audio, and has the right to take a break from the interview at any time.

As always, nothing in this article is meant to suggest that any employer should not fully comply 100 percent with OSHA rules and standards. However, it is important to understand and assert your rights while an inspection is being performed to help limit exposure to OSHA citations.

About the author: Trent Cotney, CEO of Cotney Construction Law, is an advocate for the roofing industry and serves as General Counsel for FRSA, RT3, TARC, WSRCA and several other roofing associations. For more information, contact the author at 866-303-5868 or www.cotneycl.com.

OSHA Requests Information on Possible Updates to the Lockout/Tagout Standard

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is requesting information on a possible update to the Control of Hazardous Energy (Lockout/Tagout (LOTO)) standard. The Agency is interested in comments on the use of control circuit-type devices to isolate energy, as well as the evolving technology for robotics.

OSHA is requesting information about how employers have been using control circuit devices, including information about the types of circuitry and safety procedures being used; limitations of their use, to determine under what other conditions control circuit-type devices could be used safely; new risks of worker exposure to hazardous energy as a result of increased interaction with robots; and whether the agency should consider changes to the LOTO standard that would address these new risks.

The current LOTO standard, published in 1989, requires that all sources of energy be controlled during servicing and maintenance of machines and equipment using an energy-isolating device. The standard specifies that control circuit devices cannot be used as energy-isolating devices, but the agency recognizes recent technological advances may have improved the safety of control circuit-type devices.

Comments must be submitted on or before August 18, 2019. Comments and materials may be submitted electronically at http://www.regulations.gov, the Federal e-Rulemaking Portal, or by facsimile or mail. See the Federal Register notice for submission details.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. 

For more information, visit www.osha.gov.

U.S. Department of Labor’s OSHA Issues Rule to Revise Requirements in Safety and Health Standards

The Occupational Safety and Health Administration (OSHA) has issued a final rule that revises 14 provisions in the recordkeeping, general industry, maritime, and construction standards that may be confusing, outdated, or unnecessary. The revisions are expected to increase understanding and compliance with the provisions, improve employee safety and health, and save employers an estimated $6.1 million per year.

OSHA proposed the changes in October 2016. This is the fourth final rule under OSHA’s Standards Improvement Project, which began in 1995 in response to a Presidential memorandum to improve government regulations. Other revisions were issued in 1998, 2005, and 2011.

For more information, visit www.osha.gov.

MRCA Safety Directors Meeting Live Seminar/Webinar Set for May 31

Gary Auman of Auman, Mahan & Furry concentrates his practice in OSHA defense nationally. He has 40 years of experience in OSHA compliance and litigation matters. Gary serves as General Counsel for many State, Regional and National Associations. During this Safety Directors Meeting, Gary will speak on the following topics:

  • Important updates to the Rules of Practice that impact all employers
  • Current OSHA enforcement activities
  • Emergency Action Plans

Live Seminar/Webinar

Friday May 31, 2019

11:30 am – 1:00 pm EST Lunch Buffet

The Engineers Club of Dayton

110 E. Monument Ave., Dayton, OH

You can attend this session live or participate via webinar, instructions will be emailed after receipt of registration. Register here to attend the webinar.

For more information, visit www.mrca.org.

National Fall Prevention Safety Stand-Down Scheduled for May 6-10

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is joining with occupational safety organizations for the 6th annual National Fall Prevention Safety Stand-Down, May 6-10, 2019. The week-long event will focus attention on preventing falls in construction, the leading cause of fatalities in the industry.

The national stand-down encourages employers and workers to pause voluntarily during the workday for safety demonstrations, training in hazard recognition and fall prevention, and talks about hazards, protective methods, and the company’s safety policies, goals and expectations.

“Falls can be prevented when employers train and educate workers about these hazards properly and provide appropriate protection,” said Acting Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “This should be a priority during the first week of May and must be a priority every day. OSHA has tools readily available for employers and workers to address the prevention of fall hazards.”

OSHA anticipates thousands of work sites and millions of workers to observe the stand down worldwide in 2019. To help guide their efforts, the Agency’s fall prevention webpage provides information on how to conduct a successful event, and educational resources in English and Spanish, including:

  • A series of fall safety videos that demonstrate how to prevent fall hazards from floor openings, skylights, fixed scaffolds, bridge decking, reroofing, and leading edge work.
  • OSHA’s Fall Prevention Training Guide that provides a lesson plan for employers, including several Toolbox Talks.
  • Fact sheets on ladders and scaffolding that describe the safe use of these types of equipment while performing construction activities.
  • A brief video, 5 Ways to Prevent Workplace Falls, encourages employers to develop a fall prevention plan, and to provide workers with fall protection and training.

Employers are encouraged to provide feedback after their events, and to obtain a personalized certificate of participation. The national safety stand-down is part of OSHA’s fall prevention campaign, and was developed in partnership with the National Institute for Occupational Safety and Health, National Occupational Research Agenda, and The Center for Construction Research and Training (CPWR). To learn more about preventing falls in construction, visit OSHA’s Fall Prevention Campaign page.

For more information, visit www.osha.gov.

Understanding the New OSHA Regulations for Fixed Ladders

As of November 19,2018, the U.S. Department of Labor’s Occupational Health and Safety Administration (OSHA) implemented new requirements for fixed ladders on buildings. Understanding these new ladder regulations can be confusing, and you can spend a great deal of time referencing the standard interpretations pages on the OSHA website and still not find the answers you need. 

In this article, we will be referencing the OSHA fixed ladder rules found under Occupational Health and Safety Standards, Subpart D, Standard 1910.28, “Duty to Have Fall Protection and Falling Object Protection.” We will address some of the most frequently asked questions about the regulations for fixed ladders and include some tips and links to other resources for more information. 

What has OSHA changed?

The first and primary change is the phasing out of cages on fixed ladders. Many see this as a step forward for ladder safety. The reality is that cages offer little in the way of fall protection. In fact, they can increasethe risk of injury during a fall. 

Should we order our new ladder with a cage or not?

Under the new rules, cages are not required or recommended for any new ladder installation. We will get deeper into what this means for existing ladders later in this article.

The next question is if OSHA takes away cages, how are they planning to protect people from falls? This is accomplished using a personal fall arrest system (PFAS) or ladder safety system. These come in wide variety of designs. 

Three primary types are:

1. Bolt-on cable systems (with a cable grab fall arrester)

2. Track systems (with a climbing trolley)

3. Top-mounted self-retracting lifelines

Of course, each type has its advantages and disadvantages. The key is that each must meet the minimum OSHA requirements outlined in section 1926.502(d) of the OSHA codes. 

When is a PFAS Required?

Under the new regulations, a ladder over 24 feet high will require a personal fall arrest system or ladder safety system. You can choose any PFAS provided it meets the OSHA requirements in section 1926.502(d).

Please note: A ladder that is less than 24 feet high does not require a fall arrest system of any sort. 

What about landing platforms?

Multi-section ladders with a climb of 24 feet or more require rest points. These are meant to protect climbers as they ascend. Previously, a fixed ladder with a cage required a landing platform at a maximum interval of 30 feet.

The new regulations change this requirement dramatically. Fixed ladders without cages must now have a landing platform at maximum intervals of 150 feet. Ladders with cages must now have a landing platform at maximum intervals of 50 feet. 

How do the new rules affect existing ladders?

Under the new rules, the modification of an existing ladder or replacement of a ladder section requires that the modified or replaced section be equipped with a fall arrest system. 

By November 18, 2036, allladders 24 feet or higher must be retrofitted with a PFAS or ladder safety system.

Here’s the confusing part: Will all existing ladders with cages have to be replaced, or at least have the cages removed? No.The existing caged ladder can stay. But as outlined above, a fall arrest system of some type will have to be retrofitted. 

In such cases, the cage must not interfere with whatever fall arrest system is installed. Choosing the right type fall arrest is critical in these retrofit situations.

What questions should I ask then choosing a fall arrest system?

While the fall arrest systems themselves are not that complicated, the burden often falls on the purchaser to try to figure out all the parts and pieces needed to make their ladder OSHA compliant. 

It’s not uncommon to select a fall arrest system, only to find out the product or that the accessories needed to make it compliant might be discontinued or out of stock. This leads to a list of questions that you need to ask prior to picking a fall arrest system:

· Will this system work with my ladder and the height of my climb?

· What is the system’s load capacity? 

· Will the system allow for only one or for multiple climbers? How many?

· What is the true product cost? You need to gather information on the cost of not only the base components, but any accessories needed to make the system OSHA compliant, such as harnesses, cable grabs, trolleys, carabiners, etc. 

· Is the system, and all its accessories, readily available?

· Will replacement parts be available in the future?

Where can I turn for more information about ladder regulations? 

Reputable manufacturers and suppliers of ladders and fall protection equipment should have experienced personnel on hand that can help you navigate the new OSHA regulations. The OSHA website includes the regulations cited above, as well as a Q and A section that covers fixed ladders (https://www.osha.gov/walking-working-surfaces/faq.html). Contractors can also contact their area OSHA representative for assistance. 

Other OSHA ladder resources available online include:  https://www.osha.gov/stopfalls/trainingresources.html  and https://www.osha.gov/dcsp/alliances/alliance_products.html#Ladder.

The American Ladder Safety Institute also provides an online ladder safety training resource: https://www.laddersafetytraining.org/

About the author: Chris Lafferty is a sales and marketing associate with Design Components Inc., a full-service provider of fixed ladders and fall protection accessories. For more information, visit www.designcomponents.com

Rooftop Walkway System Features Integrated Safety Railing

Kee Safety Inc. introduces Kee Walk with Guardrail, an OSHA-compliant rooftop walkway system with integrated safety railing. Designed to provide a secure, anti-slip walking surface on all roof types including metal profile and standing seam roofs, Kee Walk with Guardrail accommodates steps, traverses, and sloped roofs with pitches up to 35 degrees, according to the company.

Serving as a “collective fall protection” system by OSHA criteria, Kee Walk with Guardrail helps to eliminate potential fall hazards by presenting a clear demarcation route for personnel accessing the roof. It can be used in conjunction with Kee Safety crossover platforms to provide safe access across roof-mounted pipework, over low-level walls, and to service plant equipment. The corrosion-resistant walkway-railing system is also compatible with other Kee Safety fall protection products to deliver a complete rooftop safety solution, according to the company.

Kee Walk with Guardrail is available with aluminum or nylon modules that feature anti-slip treads. These are supplied in 5-foot and 10-foot pre-assembled sections that are easy to install and do not require onsite fabrication. The guardrail uses Kee Klamp fittings and can be set up as either a single or dual-sided handrail system. The durable, corrosion-resistant system also installs without penetrating the roof. With its modular design, Kee Walk with Guardrail can be customized for layouts of new buildings or retrofitted onto existing structures. The walkway and guardrails combine to enhance worker safety even in wet and windy conditions, noted Kee Safety.

Established in 1934, Kee Safety is a global manufacturer of safety equipment and fall protection systems. Kee Safety products are designed for new-build and renovated or upgraded commercial, institutional, industrial, and municipal buildings and facilities.

To download a free brochure, visit: https://www.keesafety.com/products/kee-walk-with-guardrail

For more information, visit www.keesafety.com.  

https://www.keesafety.com

OSHA Issues Final Rule to Protect the Privacy of Workers

To protect worker privacy, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued a final rule that eliminates the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) to OSHA each year. These establishments are still required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301. The final rule does not alter an employer’s duty to maintain OSHA Forms 300 and 301 on-site, and OSHA will continue to obtain these forms as needed through inspections and enforcement actions. 

In addition, this rule will allow OSHA to focus its resources on initiatives that its past experience has shown to be useful—including continued use of information from severe injury reports that helps target areas of concern, and seeking to fully utilize a large volume of data from Form 300A—rather than on collecting and processing information from Forms 300 and 301 with uncertain value for OSHA enforcement and compliance assistance.

The agency is also amending the recordkeeping regulation to require covered employers to electronically submit their Employer Identification Number with their information from Form 300A. The final rule’s requirement for employers to submit their EIN to OSHA electronically along with their information from OSHA Form 300A will make the data more useful for OSHA and BLS, and could reduce duplicative reporting burdens on employers in the future.

OSHA has determined that this final rule will allow OSHA to improve enforcement targeting and compliance assistance, protect worker privacy and safety, and decrease burden on employers.

Collection of Calendar Year 2018 information from the OSHA Form 300A began on January 2, 2019. The deadline for electronic submissions is March 2, 2019. 

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. 

For more information, visit www.osha.gov.