OSHA Standard Changes That Will Impact Construction | Commercial Construction Risk Management Solutions

July 9, 2021

The U.S. Department of Labor’s (DOL) regulatory agenda for spring 2021 lists regulations the agency will focus on for the next six months, including 26 Occupational Safety and Health Administration (OSHA) regulations, six of which are in the final rule stage and the rest are in the proposed or pre-rule stage. Many of them will directly affect the construction industry.


Heat Illness Prevention


Perhaps the most consequential for the construction industry will be the standard for Heat Illness Prevention in Outdoor and Indoor Work Settings.


Heat is the number one weather-related killer and the problem has become more dangerous in recent years as global temperatures have continued to rise. Construction workers especially are at high risk, often working outside and performing exerting tasks.


Historically, OSHA has used the Occupational Safety and Health Act’s General Duty Clause, a “catch-all” for recognized hazards not addressed by a specific standard, to cite employers. That will change. If OSHA follows state standards already in place, it could mandate break times and require employers to monitor employee acclimatization, as well as outdoor temperatures and humidity levels.


Communication Tower Safety


A proposed Communication Tower Safety standard is under consideration. As technology evolves, the need for communication towers continues to grow, which likely will cause an increase in tower construction and maintenance projects in the next few years. However, these projects have had a fatality rate that has greatly exceeded that of the rest of the construction industry over the past 20 years. This standard will aim to dramatically decrease that rate as more workers enter the industry.


Enhanced Workplace Injury and Illness Tracking


Enhanced Workplace Injury and Illness Tracking is on the way. As expected under the Biden Administration, OSHA has proposed to revert to the 2016 version of the rule following a change under the previous administration in 2018. That proposed regulation includes anti-retaliation provisions that may discourage workplace safety and health incentive programs and post-incident drug testing.


If this reversion occurs, it likely signals that OSHA will view drug testing and incentive programs as a form of employer retaliation. Proposed changes would require establishments with at least 250 employees to provide electronic submissions of injury and illness data with Forms 300 and 301, in addition to the less detailed summary data currently required in Form 300A.


This could have a particular impact on larger construction sites that report more injuries and illnesses because of the sheer number of employees working at a site. It also may have an outsized impact as construction employers grapple with marijuana legalization laws and worker intoxication. Those employed in construction are almost twice as likely to have a substance abuse disorder than the general population. Construction workers also are the most likely to use opioids and cocaine of any profession and 12 percent of them have an alcohol use disorder. Reasons for these statistics may include long workdays, physical pain from labor, and stress. Regardless of the cause, substance and alcohol abuse lead to more workplace accidents and injuries. Dehydration from alcoholism also can lead to several different heat illnesses. If substance abuse trends do not change, the new regulations may end up having employers defending more citations, in addition to other legal headaches.


Hazardous Material


Hazardous Material standards addressing blood lead levels and crystalline silica is in the works. Construction workers encounter these hazards with great frequency, especially those who work with concrete, stone, and metals.


Personal Protective Equipment


OSHA is addressing Personal Protective Equipment (PPE) in Construction, although it is unclear how it will do so. A PPE standard could have an outsized impact for construction sites, especially if it addresses COVID-19 exposures for construction workers in close quarters. It also could affect the distribution of PPE normally used in the industry.


Cranes and Derricks


Amendments to the Cranes and Derricks in Construction Standard are on the table. Amendments likely will not change the application of the standard significantly, but they should help clarify and correct mistakes.


Welding and Cutting


OSHA plans to amend Welding and Cutting standards to remove ambiguity about the “confined space” definition. The original rule uses the term but failed to define it. A new definition could have an impact on many construction sites depending on the phrasing.


Other Regulations


Other regulations on the agenda that may have an impact include Shipyard Fall Protection—Scaffolds, Ladders and Other Working Surfaces, a Mechanical Power Presses update, and Walking-Working Surfaces.


Author: Courtney M. Malveaux


Source: https://www.jacksonlewis.com/publication/osha-standard-changes-will-impact-construction

You might also like

Contractor Takeover Leads to Tortious Interference with Contract and Conspiracy Claims

October 28, 2021
When a subcontractor is having trouble completing its subcontract work, it is not uncommon for a contractor to assert itself more directly into the completion process to help expedite the work. What’s the harm you might ask? A recent Loudoun County, Virginia case answered that question: It could lead to tortious interference with contract and conspiracy claims by the subcontractor. That case was Evans Construction Services (the subcontractor) versus Ox Builders (the contractor), and it also included a claim by the subcontractor against the contractor’s site superintendent, Lawler, as a co-defendant in the case individually. Evans alleged that Ox and Lawler tortuously interfered with Evan’s subcontracts by dealing directly with the subcontractors and directing the subcontractors’ work, cutting Evans out of the picture. Evans sought to recover its lost profits. Ox and Lawler argued against liability because Evans’ claims sought redress outside of Evans’ subcontracts with Ox and because Evans had no contract with Lawler at all, moving to dismiss Evans’ lawsuit as a matter of law. The court denied that motion, holding that the facts as pled by Evans were legally sufficient if ultimately proven by Evans, to support a claim for breach of legal duties separate from duties arising contractually only; and specifically for wrongful interference with Evans’ subcontracts and Evans’ related conspiracy claim against the defendants. Although the court acknowledged that Evans’ claims were interrelated with the Ox – Evans subcontracts underlying the parties’ relationship, those common facts could support both contractual and non-contractual breach claims in certain circumstances. The court further determined that such circumstances, if ultimately proven, included Evans’ claims that Ox and Lawler violated their independent common law duties to not interfere with Evans’ lower tier subcontracts and not conspire together to injure Evans in its business. The court, therefore, allowed Evans’ claims to proceed to trial on their merits. The defendants apparently did not argue to dismiss the conspiracy claim on the basis Lawler, as an employee of Ox, could not conspire with Ox, his employer (referred to as the intercorporate immunity doctrine), or at least that defense was not discussed in the court’s decision. But, regardless, this decision reflects the necessity for caution “going around” subcontractors when subcontract disputes arise. Author: Neil S. Lowenstein Source: https://vanblacklaw.com/construction/contractor-takeover-leads-to-tortious-interference-with-contract-and-conspiracy-claims/

New Sex Harassment Law: Making for Strange Bedfellows in Construction Industry

October 21, 2021
In the construction industry, where multiple companies working closely together abound and where it is more difficult to monitor employee behavior because many employees are in the field, more incidents of inappropriate behavior occur. Texas and California, two states opposite politically and in law making, have instituted legislation expanding sex harassment protections for employees in the workplace that go even further than federal protections. Indeed, both laws have similarities. Texas and California Similarities In Texas , as of September 1, 2021, under expanded protections against sexual harassment, individuals in management and companies that have even only one employee can be held liable. In the construction industry, this expansion could sweep many subcontractors and tradesmen under the new law. The new law will challenge the definition of who is a manager. In California, under the 2019 law, an employer may be liable for acts of nonemployees concerning any type of harassment (not just sex harassment) against employees and other nonemployees working as interns or volunteers and service contractors. In Texas, the new law increases the time limit to file a sex harassment charge from 180 days to 300 days, making it consistent with federal law. Similarly, in California, an employee has up to 10 years to file a civil action for sexual assault or attempted sexual assault, or within three years after an employee discovers an injury or illness as a result of the assault or attempted assault, whichever is later. In Texas, instead of requiring supervisors to “take prompt remedial measures,” individual liability will hang on whether supervisors “knew or should have known” about the sex harassment in the workplace. The new law also requires “immediate and appropriate corrective action.” Certainly, the standard of “knew or should have known” will be case-specific and fact-intensive, making it difficult to dismiss cases before they reach trial. In California, recent amendments to the Fair Employment and Housing Act have made it easier for employees to prevail in sex harassment actions. They also lowered the employee’s burden and standard of proof.  Implications What does this mean for employers of all sizes? More frequent training, updating sex harassment policies and employee handbooks, expansion of human resources departments to respond more quickly to complaints, and a closer evaluation of what constitutes a managerial position are required. In California, recent legislation requires training for even the smallest of employers (a minimum of five employees). As of January 2020, California imposed minimum time requirements for the length of such training for supervisors and other employees. To be sure, in the multi-employer setting, companies also may need to verify that other companies they work alongside have sex harassment policies, that they conduct periodic training, and that their employee handbooks have been updated to comply with the law. Author: Victor N. Corpuz Source: https://www.jacksonlewis.com/publication/new-sex-harassment-laws-making-strange-bedfellows-construction-industry
OSHA inspection, CONSTRUCTION Management

During an OSHA inspection: Know your rights

October 13, 2021
During an Occupational Safety and Health Administration (OSHA) inspection, the OSHA official, escorted by management, will tour the facility or construction site to observe working conditions, identify violations, and so on.
More Posts

Book a Service Today

Share by: