U.S. Department of Labor Announces Annual Adjustments to OSHA Civil Penalties

The U.S. Department of Labor has announced adjustments to Occupational Safety and Health Administration (OSHA) civil penalty amounts based on cost-of-living adjustments for 2021.

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. Under the Act, agencies are required to publish “catch-up” rules that adjust the level of civil monetary penalties, and make subsequent annual adjustments for inflation no later than January 15 of each year.

OSHA’s maximum penalties for serious and other-than-serious violations will increase from $13,494 per violation to $13,653 per violation. The maximum penalty for willful or repeated violations will increase from $134,937 per violation to $136,532 per violation.

Visit the OSHA Penalties page for more information. The Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2021 final rule is effective January 15, 2021, and the increased penalty levels apply to any penalties assessed after January 15, 2021.

For more information, visit www.osha.gov.

U.S. Department of Labor Reminds Specific Employers to Submit Required 2020 Injury and Illness Data

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) reminds employers that the agency will begin collecting calendar year 2020 Form 300A data on Jan. 2, 2021. Employers must submit the form electronically by March 2, 2021.

Electronic submissions are required by establishments with 250 or more employees currently required to keep OSHA injury and illness records, and establishments with 20-249 employees classified in specific industries with historically high rates of occupational injuries and illnesses.

Visit the Injury Tracking Application Electronic Submission of Injury and Illness Records to OSHA for more information and a link to the Injury Tracking Application.

For more information, visit www.osha.gov.

U.S. Department of Labor Seeks Members to Serve on Committee For Improving Construction Workers’ Safety and Health

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is accepting nominations for individuals to serve on the Advisory Committee on Construction Safety and Health. The 15-member group advises the Secretary of Labor and Assistant Secretary of Labor for Occupational Safety and Health on developing standards and policies affecting the construction industry.

OSHA is seeking nominations for 14 members with experience and expertise in construction-related safety and health issues to fill five employee, five employer, two state safety and health agency, and two public representative vacancies. The members generally serve two-year staggered terms, except the representative designated by the Department of Health and Human Services and appointed by the Secretary of Labor, who serves indefinitely.

Nominations may be submitted at http://www.regulations.gov, the Federal eRulemaking Portal, by mail, or facsimile. Read the Federal Register notice for submission details. The deadline for submissions is Jan. 8, 2021.

For more information, visit www.osha.gov.

OSHA Inspection Program To Target Workplaces With Highest Injury and Illness Rates

The U.S. Department of Labor announced today that its Occupational Safety and Health Administration (OSHA) is updating its inspection program that directs agency enforcement resources to establishments with the highest rates of injuries and illnesses.

The Site-Specific Targeting (SST) Directive is OSHA’s primary targeting program for non-construction establishments with 20 or more employees. The agency selects establishments based on injury and illness data employers submitted on Form 300A for calendar years 2017-2019.

The new directive replaces Site-Specific Targeting 2016, and includes significant changes including the creation of a new targeting category for establishments indicating consistent injury and illness rate increases over the three-year data collection period. It also allows records only inspections to occur when a compliance safety and health officer determines incorrect data led to an establishment’s inclusion in the program. This change ensures OSHA will conduct a full inspection only when the employer has an actual elevated injury and illness experience.

In addition to the SST program, OSHA implements both national and local emphasis programs to target high-risk hazards and industries. Learn more about these emphasis programs.

OSHA’s On-Site Consultation Program offers no-cost and confidential occupational safety and health services to small- and medium-sized businesses to identify workplace hazards, provide advice for compliance with OSHA standards, and assist in establishing and improving safety and health programs. On-Site Consultation services are separate from enforcement and do not result in penalties or citations. 

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 Issues FAQ Confirming N95 Respirators Protect Against the Coronavirus

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a set of Frequently Asked Questions (FAQ) on how N95 respirators effectively protect wearers from coronavirus exposure.

OSHA is aware of incorrect claims stating that N95 respirators filter does not capture particles as small as the virus that causes the coronavirus. OSHA’s new FAQ explains why an N95 respirator is effective at protecting users from the virus.

Visit OSHA’s COVID-19 webpage for further information and resources about the coronavirus.

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 workers by setting and enforcing standards, and providing training, education, and assistance.

For more information, visit www.osha.gov.

U.S. Department of Labor Encourages Employers to Mark National Safe + Sound Week

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) encourages America’s workplaces to commit to workplace safety and health by participating in Safe + Sound Week, August 10-16, 2020.

Safe + Sound Week is a nationwide event that recognizes the successes of workplace safety and health programs and offers information and ideas on how to keep America’s workers safe.

In 2019, more than 3,300 businesses helped raise awareness about workers’ safety and health.  Successful safety and health programs can identify and manage workplace hazards before they cause injury or illness.

Participating in Safe + Sound Week is simple. Organizations of any size or in any industry looking for an opportunity to show their commitment to safety can participate. Start by visiting www.osha.gov/safeandsoundweek for more information, resources, and tools to help plan and promote safety events.

For more information, visit www.osha.gov.

National Safety Stand-Down to Prevent Falls Rescheduled for September 14-18

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that the 7th annual National Stand-Down to Prevent Falls in Construction has been rescheduled for September 14-18, 2020. While OSHA postponed the event earlier this year due to the coronavirus pandemic, the agency continues to encourage employers to promote fall safety virtually or while employing social distancing practices among small groups.

OSHA is partnering with other safety organizations in 2020 to encourage employers to provide safety demonstrations on fall protection equipment, conduct talks regarding fall-related hazards, safety policies, goals and expectations, and promote the event by using the #StandDown4Safety on social media.

“This national initiative brings much needed attention to falls, which continue to be the leading cause of fatalities in construction,” said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “Since OSHA began doing fall prevention stand-down events six years ago, nearly 10 million workers have been reached by our message that falls are preventable. These efforts have been successful in raising awareness of the recognition, evaluation, and control of fall hazards.”

Extensive resources are available on OSHA’s Fall Prevention Stand-Down webpage at http://www.osha.gov/StopFallsStandDown and are presented in various languages, including English, Spanish, Russian, and Portuguese. Resources include a brief video entitled “5 Ways to Prevent Workplace Falls,” which encourages employers to educate and train workers on fall protection equipment; a series of fall prevention publications, with an emphasis on construction, and fall prevention videos; OSHA’s Fall Prevention Training Guide, which provides a lesson plan for employers, including several Toolbox Talks; and guidance on ladder and scaffolding safety.

Employers are also encouraged to provide feedback after their events, and 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.

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.

Safety Obligations Under the OSH Act Can Extend to Non-Employees and Other Trades

The nature of roofing (particularly re-roofing) frequently involves the presence of non-employees on or around active construction sites. This is true in both the residential and commercial contexts. However, the risk increases significantly on commercial projects, such as retail and mixed-use projects, where many parties can be present, including the property owners’ customers and employees, as well as other trades working at the project simultaneously.

As such, it is essential that roofing contractors understand the scope of their obligations to non-employees under the Occupational Safety and Health Act of 1970 (OSH Act). While accidents and injuries can certainly trigger an investigation by OSHA, employers are frequently charged with violations of the OSH Act for merely failing to implement appropriate procedures. Not to be taken lightly, OSHA citations carry significant consequences, including penalties of up to $134,937 per violation, as well as creating a stigma against the company and loss of future opportunities. Moreover, company owners may not always be free to “walk away” from these consequences by closing the business (a common misbelief in the industry).

In the OSH Act, Congress authorized the Secretary of Labor to develop safety and health standards (OSHA regulations). One of the most important of these standards to contractors, arguably, is 29 CFR 1910.12, which provides: “Each employer shall protect the employment and places of employment of each of his employees engaged in construction work.” [Emphasis added.] This provision, like OSHA’s general duty clause, seems to imply that OSHA-imposed obligations extend only to an employer’s own employees. However, this is frequently not the case.

For many decades, the phrase “his employees” has been a major point of contention because OSHA has frequently penalized employers for hazards which did not affect the employers’ own employees. While early court decisions initially rejected OSHA’s imposition of liability in these circumstances, the tide eventually shifted, and now the opposite is true. Today, most courts will impose liability under OSHA’s “Multi-Employer Citation Policy” where the contractor “could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.” This is true even where the contractor’s own employees were completely unaffected, or even absent when the hazard occurred.

While the borders of OSHA’s policy are unclear and still developing, contractors should at least suspect they may be held responsible for the safety violations at a jobsite if they either: (1) created the hazard; or (2) exercised some degree of control over the subject worksite. With that in mind, roofing contractors can address this risk preemptively by starting with a plan to mitigate hazards and potential liability on their jobsites.

Identifying Risk

One method of doing so is by creating a Jobsite Hazard Analysis (JHA). According to OSHA, a JHA “is a technique that focuses on job tasks as a way to identify hazards before they occur.” By identifying risks, such as exposure of the public and other trades to an active construction site, roofing contractors can implement effective measures to mitigate known hazards.

While planning requirements will vary by jobsite, most roofing contractors’ JHA should address the following questions on this topic:

  • Will non-employees be present at the worksite during active construction? Could they gain access without the company’s knowledge or consent?
  • Can measures be taken to reduce or eliminate access to the worksite by non-employees?
  • What types of hazards could non-employees be exposed to? (e.g.,falling debris)
  • What steps will the company take to reduce or eliminate risks to non-employees?

In addition to addressing these risks in company policies, such as JHAs and a safety manual, it is also prudent to include provisions in the company’s contract which seek to limit exposure of non-employees to hazards. For example, the roofing contractor could include a provision in the contract which forbids the property owner’s employees from using certain entrances to the building during specific phases of construction. Roofing contractors may also seek indemnification from owners for claims of third parties based upon third parties’ failure to comply with contractual requirements. 

Under any circumstances, roofing contractors should take a preemptive approach to hazards, understanding the adage, “an ounce of prevention is worth a pound of cure,” is especially true in their industry. The first step in this process is assessing and appreciating the risks that safety hazards present. The second is implementing proactive safety policies which seek to eliminate or reduce those risks.

About the author: Travis S. McConnell is a construction law attorney with Cotney Construction Law, LLP. McConnell’s legal practice focuses on all aspects of construction law. He works extensively on matters relating to OSHA defense, which includes the management and development of safety and health strategies for construction contractors across the United States. McConnell’s OSHA practice concentrates on litigation and the appeals of citations involving catastrophic construction related accidents. He can be contacted by email at tmcconnell@CotneyCL.com.

U.S. Department of Labor Issues Revised Rule Concerning OSHA Access to Employee Medical Records

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has revised the Rules of Agency Practice and Procedure Concerning Occupational Safety and Health Administration Access to Employee Medical Records. The rule describes internal procedures that OSHA personnel must follow when obtaining and using personally-identifiable employee medical information.

OSHA has identified and amended several provisions of the regulation in order to improve efficiency in implementing these internal procedures. The final rule:

  • Transfers the approval of written medical access orders (MAOs) from the Assistant Secretary of Occupational Safety and Health to the OSHA Medical Records Officer (MRO). The MRO is responsible for determining the transfer and public disclosure of personally-identifiable employee medical information in OSHA’s possession;
  • Clarifies that a written MAO does not constitute an administrative subpoena; and
  • Establishes new procedures for the access and safeguarding of personally-identifiable employee medical information maintained in electronic form.

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.

The Right Protocols to Protect Your Roofing Teams from COVID-19

Surgical masks and other face coverings can prevent others around you from becoming exposed to any respiratory droplets you may exhale.

In the roofing industry, proper safety protocols are of paramount importance when it comes to protecting our most valuable assets: our people and our profits. And though many of us have long had training programs and procedures in place, it is crucial that we continue to adapt them in the wake of the coronavirus pandemic.

Below are best practices that can help you mitigate the risks of COVID-19 and ensure the protection of your employees and customers. Though we have a team of safety coordinators at our company, you do not necessarily need a dedicated safety department to implement the prevention protocols outlined in this article. Additionally, some tools — such as online training courses — are available at no cost. Read on to find out how to best keep your roofing workers safe amid this ever-evolving situation.

Expand Safety Education

As mentioned above, various remote training programs have already been developed in response to the pandemic, with some of them provided free of charge. One such program is the COVID-19 Safety Guidelines for Home Inspectors and Contractors Course. Offered by the International Association of Certified Home Inspectors, this online course is designed to educate contractors and other construction industry professionals on the best practices and safety guidelines regarding COVID-19 protection. We chose to enroll our 19 authorized Occupational Safety and Health Administration (OSHA) Outreach Trainers on staff in the course, which they have all now completed.

Our OSHA Outreach Trainers play a pivotal role in our safety training, which has long been a priority for this company. They have completed the Trainer Course in OSHA Standards for Construction and other necessary requirements as mandated by the OSHA Training Institution (OTI) Education Centers. This certification enables them to teach both the 10-hour and 30-hour OSHA Construction Safety and Health training programs, which are offered to our frontline employees and supervisors to educate them about jobsite hazards and risk reduction. Since the roofing industry is constantly monitored by the federal government through OSHA, we work closely with Fed OSHA and, in California, the California Division of Occupational Safety and Health (CAL/OSHA) inspectors who are an integral part of our safety culture and are proud of the fact that we have earned recognitions of our safety records.

Neck gaiters are made from a closed tube of fabric that is worn around the neck and can be pulled up over the nose.

To ensure that we are able to continue to provide OHSA training to our employees while following the social distancing practices recommended by the Centers for Disease Control and Prevention (CDC), we began offering the 10-hour and 30-hour training programs via Zoom video conferencing in June. This digital format eliminates any coronavirus transmission risk since attendees will not be gathered in the same space, while the live video aspect enables them to interact with their instructors in much the same way as an in-person course. Employees can access the training courses via phone, computer or tablet. Tailored to the requirements of the OSHA programs, the training includes a specific module on COVID-19 and infectious diseases.

We have also incorporated COVID-19 into our regular list of tailgate safety topics. We distributed our coronavirus tailgate pamphlet for two consecutive weeks in March and have sent it to our crews the first week of every month since. The pamphlets contain information on how to prevent coronavirus exposure, how to detect COVID-19, and the proper protocol to follow if you think you have been exposed to the virus or infected with it. One important point to remember when communicating with employees via written materials is that they may not all have the same level of reading comprehension, due to language barriers or other factors. To that end, our coronavirus tailgate pamphlets are available in both English and Spanish and feature explanatory images to accompany the text.

As for the tailgate talks, which usually involve a crew of four individuals or less, they now take place with the proper social distancing and face coverings worn. To further reinforce the coronavirus safety information shared in the tailgate talks, we also posted the tailgate pamphlet on an informational board in the break room, along with our company’s coronavirus preparedness plan and a COVID-19 infographic explaining how to break the chain of infection.

Safety training is required not only for our frontline workers, but also for our division and operations managers, and general superintendents. To that end, we have a team of 24 employees who serve as dedicated, full-time safety coordinators in place. They oversee safety-related operations and lead monthly training seminars. Our corporate policy is to provide whatever funding it takes to fulfill our motto that “at the end of the day we will send every employee home safe.”

Review Federal Recommendations and Local Regulations

As a national roofing and solar installer, we have looked to guidance from federal agencies when creating our own safety procedures specific to COVID-19, though it is crucial that all companies also monitor the locally mandated protocols in every region where they work.

The CDC offers comprehensive recommendations regarding proper hand hygiene as an important protocol designed to protect employees from COVID-19. According to the CDC, “with appropriate hand hygiene, you do not need gloves to protect you from COVID-19. When possible, wash your hands regularly with soap and water for at least 20 seconds or use an alcohol-based hand sanitizer containing at least 60 percent alcohol.” The CDC further outlines the key times to clean hands, which include the following: before and after work shifts and breaks; after touching tools, equipment or other objects handled by coworkers; before putting on and after taking off work gloves; after putting on, touching or removing face coverings; before putting on or taking off safety glasses, goggles or other eye protection; after blowing your nose, coughing, or sneezing; after using the restroom; before eating and before and after preparing food.

To make it easier for our employees to comply with hand hygiene requirements, we have distributed hand sanitizer to them. Additionally, we have asked the general contractors on each site to provide handwashing stations for them. We have also been mindful of how we now approach heat exhaustion prevention. Instead of getting water from a shared water source like a five-gallon jug, employees are now supplied with individual water bottles.

Social distancing is another recommendation of the CDC (and Fed OSHA) that should be practiced at all times to reduce the risk of COVID-19 exposure, starting with when your crews leave for their worksites. At our company, we no longer allow employees to carpool together in a company truck. Instead, they are required to drive to the site in separate vehicles. Once at the site, crew members must remain a minimum distance of six feet apart from each other, as advised by the CDC. Social distancing measures are further implemented by having employees take breaks at staggered intervals to prevent groups from gathering in the same space. 

Coordinate Safety Measures on the Jobsite

It cannot be emphasized enough how important it is to communicate with employees, builders, general contractors and all the other subcontractors on a project to ensure that coronavirus prevention is a coordinated effort. To that end, any information relevant to COVID-19 protocols and precautions should be shared with all parties.

Before we dispatch our teams to any site in Northern California’s Bay Area, for instance, we do a preliminary check to make sure all crewmembers are symptom-free. We then send the names of the cleared employees to the worksite, where a COVID-19 inspector is posted at the gate, courtesy of the general contractor. Every individual must undergo a temperature check before entering the site, which aligns with the CAL/OSHA guidance. According to the agency’s recommendations pertaining specifically to COVID-19 infection prevention in the construction industry, “employers may choose to prohibit employees with a high temperature (e.g., above 100.4 degrees F) from entering the worksite.” In addition to the temperature check conducted at the Bay Area sites, employees must also fill out a questionnaire asking if they have traveled, if they have been in contact with any confirmed COVID-19 patients and lastly, if they are exhibiting any symptoms. If it is discovered that an individual known to have COVID-19 has been on a work site, it will be communicated to the entire network — builders, general contractors, subcontractors — so that all are aware of the situation and can protect their teams accordingly.

Invest in Effective Face Coverings

One essential way of protecting your teams is to have them wear face coverings. By covering your face, you prevent others around you from becoming exposed to any respiratory droplets you may exhale, which can spread COVID-19 to others if you are infected — even if you are asymptomatic. Though face coverings are an effective tool when it comes to COVID-19 prevention, the subject has been a source of some confusion, as noted by the National Roofing Contractors Association. “When roofers are exposed to hazardous gases, vapors, fumes, dusts and mists, OSHA’s respiratory requirements are triggered,” according to the NRCA. “However, these scenarios aside, roofing workers fall into OSHA’s low to medium risk category of occupations for COVID-19 exposure — meaning required use of N-95 respirators is likely unwarranted. Shortages of N-95 respirators (and surgical masks) resulting from the pandemic have caused the Centers for Disease Control and Prevention to recommend wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain—especially in areas of significant community-based transmission.”

However, surgical masks and similar face coverings are rendered ineffective by facial hair in most cases. Neck gaiters are an ideal solution for your crews, since unlike a mask, each one is made from a closed tube of fabric that is worn around the neck and can be pulled up over the nose. The price per piece can range anywhere from $3 to $14, but the investment is well worth the protection it provides.

We have given two neck gaiters to each of our employees, so that there is always a spare to wear while the other one is being washed after each use. They are mandated to wear them at all times during the workday except when eating lunch. Made from polyester microfiber and manufactured by Hoo-rag, these neck gaiters wick away moisture and can be dipped in water for a cooling effect, thus offering additional protection against heat illness. Looking ahead, we are currently investigating options for a face covering that adds a third layer of protection as well: silica filtration.

Implement Stay-Home Policies to Limit the Spread

Even when all preventative measures are put in place, there is still a risk that asymptomatic patients may go undetected and unknowingly spread the virus to others at the worksite. One way to decrease that risk is to require that any employees who have been in close contact with a confirmed COVID-19 patient stay home from work.

We are following CDC recommendations when it comes to protocol concerning confirmed exposure to the coronavirus, so any employee who may have been put at risk is not permitted to return to work for two weeks. “It is important to remember that anyone who has close contact with someone with COVID-19 should stay home for 14 days after exposure based on the time it takes to develop illness,” according to the CDC.

And if any one of our employees starts to feel sick, whether there has been known COVID-19 exposure or not, that person is also required to call out from work. Our number one rule in response to the pandemic is to stay home if you feel ill. Regarding a safe return to the jobsite, the CDC recommends that “sick employees diagnosed with COVID-19 shouldn’t return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments.”

As we in the roofing industry continue to navigate this challenging situation, it is vital that we stay vigilant. The number of COVID-19 cases in the United States had climbed past 1.9 million as of press time, according to the CDC, with 37 jurisdictions reporting more than 10,000 cases. And total deaths from the disease had eclipsed 112,000. By closely monitoring conditions and modifying our safety measures as warranted, we can beat the statistics and keep our workers and customers safe.

About the author: Travis Post is the National Director of Safety at Petersen-Dean, Inc. Founded in 1984 by Jim Petersen, Petersen-Dean, Inc. is the largest, full-service, privately-held roofing and solar company in the United States. Specializing in new residential and commercial construction, the company works with some of the nation’s largest builders and developers. For more information, visit www.petersendean.com.