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Contractors Counsel: Employers Need to Tread Carefully When Using Drones on Projects

Posted By Western States Roofing Contractors Association, Monday, September 30, 2019
Updated: Tuesday, October 1, 2019

Courtesy of: Trent Cotney, Cotney Construction Law
WSRCA Legal Counsel


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Greetings WSRCA Members,

Unmanned aerial vehicles (UAVs), more colloquially known as drones, are the topic of conversation in multiple industries and are used in a variety of different applications. From delivery of a kidney to a transplant recipient to aerial photography, drones have a wide variety of applications. While drones are already being used on construction sites across the country, not many have stopped to ask what potential risks are associated with this use.

Drones provide a number of obvious benefits when used on a construction site. They can be used to decrease the amount of time it takes to complete a survey of the site and can be used to monitor progress on busy construction sites. Despite the clear advantages provided by drone use, contractors must be aware of the potential liability from using drones on a job site.

As drone use increases so does the risk that an accident may occur from using drones on construction sites. In September 2018, a drone performing an inspection of the Millennium Tower in San Francisco lost GPS signal and crashed to the ground. In January 2018, a pilot crashed a drone into a crane while performing a survey of a construction site in the UK. While these accidents did not result in substantial property damage or personal injury, they highlight the potential risks associated with using drones to perform surveys and other job site inspections.

It is not difficult to imagine a scenario where, as in the previous drone crash examples, a pilot loses signal or fails to properly pilot the drone causing the drone to crash and injure an individual standing beneath it. In 2014, a man was killed on a construction site when a one-pound tape measurer fell from a building striking him on the head. An average light-to-middle weight drone weighs in anywhere from 5 pounds to 50 pounds, more than enough to cause lethal injury to anyone struck by one falling from the sky.

The first step to ensure drone use on a project site does not result in any personal or property damage is to verify the person piloting the drone has the required qualifications. The Federal Aviation Authority (FAA) requires the drone pilot to obtain a Remote Pilot Certificate or be under the direct supervision of a pilot who does have the Certificate. Potential pilots must pass an initial aeronautical knowledge test covering topic areas such as regulations relating to drones, emergency procedures, and aeronautical decision-making and judgment.

Second, and working hand-in-hand with the first step, employers must follow the requirements found in the FAA’s “Small UAS Rule 107.” Part 107 provides operational limitations that include a limit on drone weight; line-of-sight requirements; flight responsibilities; and other important limitations employers need to be cognizant of.

Third, employers should consider whether the benefit of using a drone on the project is worth the potential liability stemming from an accident and whether the employer’s CGL policy covers accidents related to drone use. Many insurers require employers that employ the use of drone technology on job sites to abide by the FAA rules and regulations governing drones. Failure to abide by the FAA guidelines can result in your insurer denying coverage for any accident stemming from drone use.

It's clear that drones provide construction employers a brevity of potential benefits, however employers should ensure proper guidelines are in place to prevent personal or property damage on project sites. Employers should further evaluate, in light of the potential benefits, whether drone use is in its best interests.

 

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LEGAL  DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

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Fighting the Opioid Epidemic with Care and Data

Posted By Chris Alberts, Western States Roofing Contractors Association, Monday, April 29, 2019
Updated: Monday, April 29, 2019

Courtesy of: Alexander Acosta — U.S. Secretary of Labor


WASHINGTON, D.C. -- With National Prescription Take Back Day last week, the Department of Labor released new informationon what we have learned about the opioid crisis and how we are improving our effectiveness in overcoming its challenges.

In 2017, President Donald Trump’s administration declared the opioid epidemic a national public health emergency and directed all executive agencies to use every appropriate emergency authority to minimize the devastation. Since 2017, the U.S. Department of Labor’s Office of Workers’ Compensation Programs’ (OWCP) has dedicated significant resources to stem the abuse, misuse, and proliferation of opioids to protect 2.7 million federal workers from harmful opioid prescription practices.

The use of opioids to treat injured federal workers continued, virtually unchecked, until 2017. The capability to monitor dose level and duration by the department was not even available until operational changes were instituted that year. Since we started this effort, a series of successes can be attributed to the implementation of a four-point strategic plan: (1) effective controls, (2) tailored treatment, (3) impactful communications with employees and providers, and (4) aggressive fraud detection.

The strategic plan’s core is a process where the department continuously gathers information and analyzes data. The results yielded great progress:

• 51% decline in new opioid prescriptions that last more than 30 days;

• 59% decline in claimants prescribed a morphine equivalent dose (MED) of 500 or more;

• 31% decline in claimants prescribed a MED of 90 or more;

• 30% decline in overall opioid use; and

• 24% drop in new opioid prescriptions

A recent study highlights the unique challenges facing a legacy population of injured federal workers who have been prescribed opioids over an extended period of time. Specifically, the study showed that nearly 1 in 4 injured workers in this group had been prescribed a high dose of 90+ morphine equivalent dose. This is important because the higher the opioid dose, the higher the risk for misuse and overdose death. Higher doses, greater than 100 MED, have more than two times the risk relative to lower doses. Additional risk factors, including the use of extended-release opioids and the associated use of certain interacting medications, were also identified.

The legacy challenges needed to be confronted. All federal injured workers with a prescription of 90+ MED underwent extensive individual case reviews. Treating physicians were contacted and, as needed, nurses were assigned. Our goal was to work with the medical provider and injured worker to provide opioid treatment where needed, reduce the opioid risk level, and assist in securing the benefits needed for pain management. These efforts are continuing with second level reviews currently being conducted by a clinical team of pharmacists.

Tapering an addictive drug takes time and there are a host of interacting factors to consider, yet as the statistics prove, the intense focus produced a real difference. This effort is not the federal government deciding what is best for patients. Rather, the federal government is acting as a responsible employer by caring about its workforce and ensuring that employees are getting the treatment and support needed for what can be a challenging recovery.

We are committed to (1) engaging individual employees and (2) analyzing the effects on the employee population as a whole. To win this battle, we must embrace a strategy that pursues accurate information, continuously evaluates that information, and invests the time necessary to find the right, healthy solutions for individuals struggling with opioids.

Alexander Acosta is the 27th U.S. secretary of labor.

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LEGAL  DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

Tags:  LEGAL  SAFETY 

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OSHA Provides Much Needed Clarity on Post-Incident Drug Testing and Safety Incentive Programs

Posted By Western States Roofing Contractors Association, Monday, March 11, 2019

Courtesy of: WSRCA Legal Advisor, Cotney Construction Law

 

In 2016, OSHA published its final rule amending 29 C.F.R. § 1904.35 to add a provision prohibiting employers from retaliating against employees for reporting workplace injuries. Since then, employers within the roofing and construction industries have been hesitant to conduct post-accident drug testing for fear of violating the new rule.

Employers can now breathe a sigh of relief as OSHA recently clarified its position on workplace safety incentive programs and post-incident drug testing. The good news is that employers are still permitted to conduct post-incident drug testing and implement safety incentive programs to promote workplace safety and health.

Specifically, OSHA stated that permissible drug testing includes: random drug testing; drug testing pursuant to state and federal laws; and, most importantly, post-accident drug testing to determine the root cause of the incident that harmed or could have harmed employees as long as the testing is not limited to the employees who reported injuries. Employers should now feel comfortable conducting post-accident drug testing of employees so long as they do not target the specific employees who reported the accident and instead test all those whose conduct may have contributed to the accident.

Further, OSHA clarified its position on incentive programs stating that positive action taken under a program that rewards workers for reporting near-misses or hazards is always permissible under the rule. OSHA also clarified its stance on the more controversial rate-based programs, (i.e., providing bonuses to employees for injury free months of work) stating that they are permissible under the rule as long as they are not implemented in a manner that discourages reporting.

Therefore, as long as employers implement adequate precautions to ensure that employees feel free to report injuries, OSHA will not take negative action against the employers for negative action against employees (i.e., withholding of bonus). Adequate precautions include: inventive programs to go along with rate-based programs that reward employees for reporting hazards in the workplace; and training programs that reinforce the employee’s right to report and not face employer retaliation.

 

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Trent Cotney, CEO of Cotney Construction Law, is an advocate for the roofing industry, General Counsel of Western States Roofing Contractors Association (WSRCA), Florida Roofing & Sheet Metal Contractors Association (FRSA), Roofing Technology Think Tank (RT3), Tennessee Association of Roofing Contractors (TARC), National Women in Roofing (NWIR), and several other local roofing associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.

 

 All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

Tags:  LEGAL  SAFETY 

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OSHA Flying into the 21st Century with Drones

Posted By Western States Roofing Contractors Association, Friday, February 15, 2019

 

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Courtesy of WSRCA Legal Counsel: Trent Cotney, Cotney Construction Law

 

 

 

Early last year, the Occupational Safety and Health Administration (OSHA) announced the start of an all new approach to its safety inspections—through drones. Since its introduction, at least nine inspections were conducted with camera-enabled drones. Of these nine inspections, the majority were used due to hazardous circumstances on-site such as a recent collapse, fire or explosion.

 

Drone usage during safety inspections provides OSHA with a quick and detailed view of an employer’s facility, and possibly a more expansive view of what might have been seen by an in-person inspector. While this might be good for OSHA as it significantly cuts down time needed to perform such an inspection, employers should be wary of the ramifications.

 

The good news? Drone usage for OSHA’s safety inspections doesn’t come without restriction. In an eight-page memo addressed to its regional administrators on May 18, 2018, OSHA laid out the guidelines and procedures it must adhere to in order to use Unmanned Aircraft Systems (“UAS”) a/k/a drones. One established limitation on this type of inspection is employer consent. This means that employers have the right to say no to the little robot flying above your worksite. But is “no” really the best answer?

 

Although employers have a 4th Amendment right to object to the expansion of an overbroad search, this doesn’t necessarily mean that you should deny OSHA the ability to inspect your site through drone usage. By making this objection, OSHA is then required to obtain a search warrant to inspect your property. This objection, only delaying the inevitable, might not be worth getting on OSHA’s bad side. Instead, see if you can work with OSHA to create a limit in the scope of the search and participate in the drone flight planning, which in turn will help address concerns regarding the expansive view that comes with drone inspection.

 

Another concern to watch out for is the possibility of OSHA being granted its request for a Blanket Public COA from the Federal Aviation Administration (FAA). This Blanket Public COA will allow OSHA to use drones anywhere in the country. If granted, it is unclear how the employer consent will play into this, if at all.

 

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LEGAL  DISCLAIMER

 

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

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OSHA Updates Final Crane Operator Ruling

Posted By Western States Roofing Contractors Association, Monday, January 21, 2019

 

Courtesy of Trent Cotney, Cotney Construction Law

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Per OSHA’s publication in the Federal Register on November 9, 2018, the requirements for crane operator certification will take effect on December 10, 2018, and the requirements for employers to evaluate/document crane operators will take effect on February 7, 2019.

Further, OSHA stated that the new crane operator certification will be limited to certification based on equipment type and that OSHA will not be enforcing the requirement that certifications identify a lifting capacity for the certification. This decision was made in order to maintain current industry practices and avoid confusion on construction projects. The decision and effective dates mean all crane operators must be certified by December 10 of this year and all employers must begin evaluating and documenting the evaluations by February 7, 2019.

While testing organizations, such as the National Commission for the Certification of Crane Operators (NCCCO), are not required to issue certifications rated by lifting capacity, they are still permitted to do so. Crane operators will need to ensure they meet the minimum operator requirements outlined in the rule, 29 CFR 1926.1427. The rule requires employers to ensure crane operators receive training, evaluate operators for their ability to safely operate crane equipment, and document the evaluation.

In sum, employers and crane operators must act fast to ensure they both meet the new criteria set forth by OSHA. Exactly how OSHA will enforce the new requirement is yet to be seen but employers should be ready and have guidelines in place for project inspections.

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LEGAL  DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

Tags:  LEGAL  SAFETY 

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OSHA’s Rule on Walking-Working Surfaces and Fall Protection Standards

Posted By Western States Roofing Contractors Association, Monday, October 22, 2018

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Courtesy of: OSHA.gov

 

BACKGROUND

Falls from heights and on the same level (a working surface) are among the leading causes of serious work-related injuries and deaths. OSHA estimates that, on average, approximately 202,066 serious (lost-workday) injuries and 345 fatalities occur annually among workers directly affected by the final standard.

OSHA’s final rule on Walking-Working Surfaces and Personal Fall Protection Systems better protects workers in general industry from these hazards by updating and clarifying standards and adding training and inspection requirements. The rule affects a wide range of workers, from window washers to chimney sweeps. It does not change construction or agricultural standards.

The rule incorporates advances in technology, industry best practices, and national consensus standards to provide effective and cost-efficient worker protection. Specifically, the rule updates general industry standards addressing slip, trip, and fall hazards (subpart D), and adds requirements for personal fall protection systems (subpart I).

OSHA estimates this rule will prevent 29 fatalities and 5,842 lost-workday injuries every year.

The rule benefits employers by providing greater flexibility in choosing a fall protection system. For example, it eliminates the existing mandate to use guardrails as a primary fall protection method and allows employers to choose from accepted fall protection systems they believe will work best in a particular situation — an approach that has been successful in the construction industry since 1994. In addition, employers will be able to use nonconventional fall protection in certain situations, such as designated areas on low-slope roofs.

As much as possible, OSHA aligned fall protection requirements for general industry with those for construction, easing compliance for employers who perform both types of activities. For example, the final rule replaces the outdated general industry scaffold standards with a requirement that employers comply with OSHA’s construction scaffold standards.

The rule phases out a 1993 exception for the outdoor advertising industry that allows “qualified climbers” to forego fall protection. At least three workers have fallen from fixed ladders under this exception. One of them died. The final rule phases in the fixed ladder fall protection requirements for employers in outdoor advertising.

 

FALL PROTECTION OPTIONS

The rule requires employers to protect workers from fall hazards along unprotected sides or edges that are at least 4 feet above a lower level. It also sets requirements for fall protection in specific situations, such as hoist areas, runways, areas above dangerous equipment, wall openings, repair pits, stairways, scaffolds, and slaughtering platforms. And it establishes requirements for the performance, inspection, use, and maintenance of personal fall protection systems.

OSHA defines fall protection as “any equipment, device, or system that prevents a worker from falling from an elevation or mitigates the effect of such a fall.” Under the final rule, employers may choose from the following fall protection options:

• Guardrail System – A barrier erected along an unprotected or exposed side, edge, or other area of a walking-working surface to prevent workers from falling to a lower level.

• Safety Net System – A horizontal or semihorizontal, cantilever-style barrier that uses a netting system to stop falling workers before they make contact with a lower level or obstruction.

• Personal Fall Arrest System – A system that arrests/stops a fall before the worker contacts a lower level. Consists of a body harness, anchorage, and connector, and may include a lanyard, deceleration device, lifeline, or a suitable combination. Like OSHA’s construction standards, the final rule prohibits the use of body belts as part of a personal fall arrest system.

• Positioning System – A system of equipment and connectors that, when used with a body harness or body belt, allows a worker to be supported on an elevated vertical surface, such as a wall or window sill, and work with both hands free.

• Travel Restraint System – A combination of an anchorage, anchorage connector, lanyard (or other means of connection), and body support to eliminate the possibility of a worker going over the unprotected edge or side of a walking-working surface.

• Ladder Safety System – A system attached to a fixed ladder designed to eliminate or reduce the possibility of a worker falling off the ladder. A ladder safety system usually consists of a carrier, safety sleeve, lanyard, connectors, and body harness. Cages and wells are not considered ladder safety systems.

 

ROPE DESCENT SYSTEMS

The rule codifies a 1991 OSHA memorandum that permits employers to use Rope Descent Systems (RDS), which consist of a roof anchorage, support rope, descent device, carabiners or shackles, and a chair or seatboard. These systems are widely used throughout the country to perform elevated work, such as window washing.

The rule adds a 300-foot height limit for the use of RDS. It also requires building owners to affirm in writing that permanent building anchorages used for RDS have been tested, certified, and maintained as capable of supporting 5,000 pounds for each worker attached. This mirrors the requirement in OSHA’s Powered Platforms standard.

 

LADDER SAFETY SYSTEMS

Falls from ladders account for 20 percent of all fatal and lost work-day injuries in general industry. The new rule includes requirements to protect workers from falling off fixed and portable ladders as well as mobile ladder stands and platforms. (The ladder requirements do not apply to ladders used in emergency operations or ladders that are an integral part of or designed into a machine or piece of equipment).

In general, ladders must be capable of supporting their maximum intended load, while mobile ladder stands and platforms must be capable of supporting four times their maximum intended load. Each ladder must be inspected before initial use in a work shift to identify defects that could cause injury.

Fixed Ladders – Fixed ladders are permanently attached to a structure, building, or equipment. These include individual-rung ladders, but not ship stairs, step bolts, or manhole steps. The new rule phases in a requirement for employers to have ladder safety or personal fall arrest systems for fixed ladders that extend more than 24 feet, and phases out the use of cages or wells for fall protection under the following timeline: Starting in two years, all new fixed ladders and replacement ladder/ladder sections must have a ladder safety or personal fall protection system. For existing ladders, within two years, employers must install a cage, well, ladder safety system, or personal fall arrest system on fixed ladders that do not have any fall protection. Within 20 years, all ladders extending more than 24 feet must have a ladder safety or personal fall arrest system.

Portable Ladders – Portable ladders usually consist of side rails joined at intervals by steps, rungs, or cleats. They can be self-supporting or lean against a supporting structure. The final rule will be easier for employers and workers to understand and follow because it uses flexible performancebased language instead of detailed specification and design requirements. Under the revisions, employers must ensure that: rungs and steps are slip resistant; portable ladders used on slippery surfaces are secured and stabilized; portable ladders are not moved, shifted, or extended while a worker is on them; top steps and caps of stepladders are not used as steps; ladders are not fastened together to provide added length unless designed for such use; and ladders are not placed on boxes, barrels, or other unstable bases to obtain added height.

 

TRAINING REQUIREMENTS

The rule adds a requirement that employers ensure workers who use personal fall protection and work in other specified high hazard situations are trained, and retrained as necessary, about fall and equipment hazards, including fall protection systems. A qualified person must train these workers to correctly: identify and minimize fall hazards; use personal fall protection systems and rope descent systems; and maintain, inspect, and store equipment or systems used for fall protection.

When there is a change in workplace operations or equipment, or the employer believes that a worker would benefit from additional training based on a lack of knowledge or skill, then the worker must be retrained. The training must be provided in a language and vocabulary that workers understand.

 

TIMELINE

Most of the rule will become effective 60 days after it is published in the Federal Register, but some provisions have delayed effective dates, including: • Ensuring exposed workers are trained on fall hazards (6 months), • Ensuring workers who use equipment covered by the final rule are trained (6 months), • Inspecting and certifying permanent anchorages for rope descent systems (1 year), • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years), • Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years), and • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).

 

ADDITIONAL INFORMATION

Additional information on OSHA’s rule on walking-working surfaces and personal fall protection systems can be found at https://www.osha.gov/Publications/OSHA3903.pdf. OSHA can provide extensive help through a variety of programs, including technical assistance about effective safety and health programs, workplace consultations, and training and education. For more information on other safety-related issues impacting workers, to report an emergency, fatality, inpatient hospitalization, or to file a confidential complaint, contact your nearest OSHA office, visit www.osha.gov, or call OSHA at 1-800-321-OSHA (6742), TTY 1-877-889-5627

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LEGAL  DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

Tags:  SAFETY 

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OSHA's SILICA STANDARD

Posted By Chris Alberts, Western States Roofing Contractors Association, Monday, October 15, 2018
Updated: Monday, October 15, 2018

 

Courtesy of: Trent Cotney and Travis McConnell

Cotney Construction Law
866.303.5868 | tcotney@cotneycl.com

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The Occupational Safety and Health Administration’s (OSHA) controversial rule regulating exposure to respirable crystalline silica (silica) took effect on June 23, 2016. Enforcement of the new standard began on September 23, 2017 for those working in the construction industry, and on June 23, 2018 for the general industry.

The key provision with the greatest impact on the roofing industry is the stricter permissible exposure limit (PEL) for respirable crystalline silica. Silica is a common mineral found in concrete, brick, mortar, and other construction materials. Workers may be exposed to silica when performing tasks, such as: cutting masonry, operating jackhammers, drills, grinders, or using other heavy equipment. In the roofing industry, silica exposure commonly occurs as the result of cutting, crushing, drilling, or blasting cement roofing tiles. Yet, other common roofing activities may also lead to employee exposure.

OSHA’s new exposure limit reduces the allowable silica exposure from 250 to 50 micrograms per cubic meter of air averaged over a traditional eight-hour shift, a limitation that is five times lower than what was previously required for the construction industry. This degree of change in the regulatory standard is unprecedented for any industry. As a result, contractors will be required to comply with more burdensome rules mandating air monitoring procedures, use of respirators, medical examinations, testing, equipment maintenance, and will frequently be required to purchase new equipment which is compliant.

The rule requires employers to limit workers’ exposure to silica and provides two compliance options: follow Table 1 or implement alternative exposure control methods. Table 1 consists of 18 construction-related activities and details engineering controls, as well as the specific conditions which would require employees to wear respirators. For example, Table 1 requires that contractors use a saw equipped with an integrated water delivery system when using stationary masonry saws to cut material containing silica. When using a handheld drill to penetrate material containing silica, Table 1 requires contractors to use a drill with a dust collection system filter with 99% or greater efficiency and a filter-cleaning mechanism (along with other requirements).

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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.

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Trent Cotney, CEO of Cotney Construction Law, is an advocate for the roofing industry and General Counsel of Western States Roofing Contractors Association (WSRCA).  For more information, contact the author at 866.303.5868 or go to www.cotneycl.com. 

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

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OSHA Violations

Posted By Darin Douglas, Lowe Roofing, Inc., Tuesday, September 25, 2018
The Occupational Safety and Health Administration (OSHA) was started in April 1971 with the goal of dramatically affecting workplace safety in the United States.  Anyone who employs others, runs a business, or operates on a construction site must comply with OSHA’s rules and regulations.  Those regulations are backed by a series of violation categories with fines attached to many of them, and it is important to be aware of these as you navigate the world of workplace safety.  Starting in January 2018, new fine amounts were announced by OSHA and are currently in effect.  There are six different categories within the violation structure OSHA has set up.



De Minimis Violation

    De minimis violations result from a technical violation of OSHA rules but carries no impact on the safety and health of workers.  Inspectors will not issue a citation or fine for this violation, but will instead inform the employer of the issues and list them within the inspection report.  An example of a de minimis violation would be not having standard-sized lettering on your worksite hazard signs.



Other Than Serious Violation

    Other than serious violations have a maximum fine amount of $12,934 attached to them.  Violations in this category are defined as acts not causing death or serious bodily injury.  Inspectors have a lot of say in this category and can reduce fine amounts up to 90% in some cases.  Failing to provide employees with copies of safety rules and regulations would be an example of an other than serious violation.



Serious Violation

    The serious violation category is defined as having a definite chance to cause serious injury or death.  OSHA expects that employers should be aware of the serious hazards associated with the work being performed and should provide adequate safety controls to protect workers.  This violation carries with it a maximum fine amount of $129,336, but as with the previous categories, inspectors can adjust fine amounts based on things like the seriousness of the violation, company history, company cooperation, and many other factors.  Failing to provide any fall protection for workers on a 6:12 roof slope would be an example of a serious violation.  



Willful Violation

    The willful violation is the harshest category within OSHA's penalty structure and is issued when an employer knowingly disregards employee safety and health by intentionally not following OSHA rules and regulations.  This violation carries with it a maximum fine amount of $129,336.  Fines can grow rapidly if a person is killed due to this intentional lack of safety, sometimes becoming a criminal offense accompanied by possible jail time.  



Repeat Violation

    Repeat violations carry with it a maximum fine amount of $129,336.  An inspector can issue a repeat violation if the employer has been cited for the same thing, or something very similar, before.  Employers who are issued too many repeat violations risk inspectors issuing a willful violation if they feel an employer is blatantly disregarding OSHA recommendations and repeatedly committing the same violations.  



The Failure To Abate Prior Violation

    A failure to abate prior violation is issued when an employer fails to correct a cited hazard in the time allotted within the citation literature.  This violation comes with a fine of $12,934 for every day the cited hazard is not corrected after the citation is posted.  Issued citations by OSHA will come with all the necessary information employers need to meet abatement expectations, so failing to abate a hazard will not go well for the employer if inspectors have to return to the site.   



OSHA violations carry with them a significant financial challenge, and can have a lasting effect on workplace safety and health within a company.  As an employer, if you are issued a citation, make sure to give the process its due diligence.  Inspectors take into account lots of different things, and if your company is well informed and accountable, it can have a significant impact on inspectors when they look at possibly reducing fine amounts.

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Reducing Falls During Residential Construction: Re-Roofing

Posted By Chris Alberts, Western States Roofing Contractors Association, Monday, September 24, 2018
Updated: Tuesday, September 25, 2018

Courtesy of: OSHA.gov

 

Re-roofing exposes workers to the hazards of demolition work at heights. With the proper fall protection, the risk of serious falls can be substantially reduced. This fact sheet highlights some of the hazards workers encounter during re-roofing and lists some practical methods employers can use to protect workers who replace roofs. The fall protection methods in this fact sheet may not be suitable in all situations. Employers are responsible for ensuring compliance with applicable OSHA requirements.

 

Risks During Re-Roofing

Workers replacing roofs risk permanent injury or death from falls while they demolish old roofs and install new roofing material (for example, shingles, tiles, or slate). Even experienced roofers are exposed to unpredictable fall hazards caused by uneven sheathing, sudden gusts of wind, loose roofing materials, and surfaces that become slick when wet. Taking appropriate fall protection measures reduces risks and saves lives.

The employer must provide a training program for each worker who might be exposed to fall hazards. The program must enable each worker to recognize the hazards of falling and train each worker in the procedures to follow to minimize these hazards. For fall protection training requirements, refer to 29 CFR 1926.503. In all cases, employers must evaluate the hazards and take measures to reduce the risk of falls.

More than one-third of fall deaths in residential construction are caused by falls from roofs.

 

Safe Roofing Practices: Important Steps

Before beginning the job, focus on identifying fall protection needs. Survey the roof to determine if there are pre-installed anchorages available that can be used. If not, then plan immediately to identify those systems needed to protect workers from falls and have them in place before the workers report to the job.

 

Reducing Risks: Determining Structural Integrity

Many workers have been injured when the roofs they were working on collapsed from under them. Employers must determine the structural integrity of the roof and take all necessary precautions to protect the workers before the job begins (29 CFR 1926.501(a)(2)). If workers notice signs of structural deterioration (for example, dry rot), a competent person should evaluate the area.

Other considerations for a safe construction site:

  • Guard against falls through skylights or other roof openings. Use a guardrail system, a personal fall arrest system (PFAS), or a protective cover that will support two times the weight that may be imposed on it at any one time. For additional information on protecting workers around skylight and other roof openings, refer to 29 CFR 1926.501(b)(4) and 29 CFR 1926.502(i).
  • Appropriate footwear is important personal protective equipment on any construction site, but it is critical during roof demolition. A nail or shingle-removal tool injury can cause a worker to lose concentration and fall.
  • Workers should be careful of air hoses and power cords for nail guns and other electrical equipment. If a worker steps on one, hoses and cords can slip underfoot and lead to falls.

 

Staging Material

Loose material and hand-held equipment can create tripping hazards on the roof surface. To minimize exposure to fall hazards, employers can stage materials so that workers on the roof have quick and safe access to them. While handling material on the roof, the worker should hold the material on the side of his or her body that faces the down-sloped edge to prevent being struck by the materials if they are dropped. Material can also be staged so it cannot slide off the roof edge and potentially strike a worker on the ground. Slide guards can help to keep material from sliding off the roof. Establishing a restricted area around the perimeter of the project can also keep workers out of the danger zone where debris, tools or materials may fall to the ground. The area should be posted with signs that warn of the potential hazard.

 

Protect Workers on the Ground

During the demolition phase, protect workers on the ground from falling debris by controlling how debris leaves the roof. Consider using an all-terrain forklift to elevate a disposal box to the roof level. This method makes cleanup after the job particularly easy.

 

Using the Right Equipment

Employers must provide roofers fall protection equipment that meets OSHA requirements whenever they work 6 feet or more above a lower level. There are fall protection systems available that can provide roofers the flexibility they need during demolition and roof installation. Some are more efficient than others because, in many cases, the employer can use the same system for both processes. Each phase of roof replacement has different challenges, but the risk of falling remains constant. Contractors may be able to protect their workers using the following equipment:

  • Personal fall arrest systems;
  • Guardrails; or
  • Ladders.

Note: Fall protection requirements for residential construction work performed on ladders are in Subpart X, not in 29 CFR 1926.501(b)(13).

 

Providing Fall Protection for the Whole Job

Personal fall arrest system: A PFAS is a tool available to roofers during replacement jobs. In fact, a PFAS is the system of choice for many roofers. However, a breakdown in any component of a PFAS could be disastrous for a worker. Always follow the manufacturer’s instructions on selecting, installing and using PFAS components correctly. Some PFASs include special elevated anchor assemblies that permit the system to protect workers even when they stand near the anchor locations. Certain anchorage assemblies rotate or offer extension arms to improve mobility and prevent lifelines from contacting the roof surface. This is particularly useful during roof demolition when a line could catch on a nail or debris.

Personal Fall Arrest System (PFAS)

A PFAS is designed to safely stop a fall before the worker strikes a lower level. It includes three major components:

  1. An anchorage to which the other components of the PFAS are rigged.
  2. A full body harness worn by the worker.
  3. A connector, such as a lanyard or lifeline, linking the harness to the anchorage. A rip-stitch lanyard, or deceleration device, is typically a part of the system.

Horizontal lifeline: An engineered horizontal lifeline system, when used as part of a PFAS, is another way to increase the area in which a worker is protected. Install the system following the manufacturer’s instructions and under the supervision of a qualified person. Horizontal lifelines must be designed to maintain a safety factor of at least two (twice the impact load). For requirements for horizontal lifelines, refer to 29 CFR 1926.502(d)(8).

Rope grabs: Instead of attaching themselves to a fixed anchor, workers may be able to use adjustable rope grabs, another available component of a PFAS. This inexpensive and very popular system is the fall protection system of choice for many roofers. Rope grabs allow workers to adjust the length of the lifeline and can be useful when workers are moving about the roof frequently. The anchored ropes can be as long as necessary, making this form of fall protection highly versatile. Roofers who use rope grabs need to constantly take up the slack out of the line. Too much slack could allow a worker to free fall more than six feet off the roof if they slip. Training and monitoring are critical to the safe use of rope grabs.

Fall Restraint: While fall restraint systems are not mentioned in OSHA’s fall protection rules, OSHA will accept a properly utilized fall restraint system instead of a personal fall arrest system when the restraint system is rigged so that the worker cannot get to the fall hazard. In effect, (if properly used) the system tethers a worker in a manner that will not allow a fall of any distance. A fall restraint system is comprised of a body belt or body harness, an anchorage, connectors, and other necessary equipment. Other components typically include a lanyard, and may also include a lifeline and other devices.

Always follow the manufacturer's instructions or consult a qualified person to ensure proper installation of anchor points. Fall restraint may be a viable way to provide fall protection in situations in which the employer has concerns about the adequacy of available anchorage points for fall arrest equipment.

Temporary guardrails: Removeable guardrail systems can offer roofers effective protection when installed around the roof perimeter. Always follow the manufacturer’s instructions or consult a qualified person, as defined by 29 CFR 1926.32(m), for proper guardrail installation. This person could be the owner, the supervisor, or any other worker who has extensive knowledge, training and experience with fall protection and is able to solve problems relating to fall protection. For requirements requirements for guardrails, refer to 29 CFR 1926.502(b)- Guardrail Systems.

Other considerations: Some employers have found success in eliminating fall hazards by using scaffolds and aerial lifts when site conditions permit their use. Fall protection requirements performed on scaffolds and aerial lifts can be found in 29 CFR 1926 Subpart L – Scaffolds.

 

Attaching Anchors

OSHA requires that anchors for PFASs be able to hold at least 5,000 pounds of weight per person or maintain a safety factor of at least two (twice the impact load) under the supervision of a qualified person. Always follow the manufacturer’s instructions or consult a qualified person when installing anchors to ensure they are strong enough to hold the sudden weight of a falling worker. OSHA believes that anchorages available on the market will meet the strength requirements if they are installed as per the manufacturer’s instructions, with the right number of properly sized nails or screws through the roof sheathing and into one or more roof trusses.

When choosing an anchor to use for fall protection, employers have a number of options; for example,

  • Peak anchor: At the top of the roof, peak anchors are typically solid, non-moving pieces secured to the trusses underneath.
  • Permanent D-rings: Inexpensive D-ring anchors can be attached to the truss frame; they can be left permanently on the roof for future use.

Install an anchor above the area being built: Choose an anchor that is appropriate for the type of roof and anchor location. Depending on the roof design, the best location might be at the peak of the roof, directly over a truss.

Consider leaving anchors in place: Where practical, employers may consider leaving anchors in place. This can make the current job simpler and reduce the burden for roofers in the future.

 

Written Fall Protection Plans

When working at heights of 6 feet or greater, if the employer does not use ladders, scaffolds, aerial lifts or fall restraint systems and can demonstrate that it is not feasible or would create a greater hazard to use conventional fall protection equipment (guardrails, safety nets or PFAS), the employer must develop a written site-specific fall protection plan in accord with 29 CFR 1926.502(k). The plan must be prepared by a qualified person. This person could be the owner, the supervisor, or any other worker who has extensive knowledge, training and experience with fall protection and is able to solve problems relating to fall protection.

The site-specific fall protection plan must document, for each location, why the use of conventional fall protection equipment is not feasible or will create a greater hazard. The plan must also describe the alternative methods that the employer will use so that workers are protected from falls. Workers and their supervisors must be trained on the proper use of those other fall protection methods.

Conventional fall protection equipment can reduce or eliminate the chances of a fatal fall. Otherwise, a written site-specific fall protection plan ensures that protection continues, even when conventional fall protection methods are determined to not be feasible.

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OSHA Standard:

29 CFR 1926 Subpart M – Fall Protection

Available online at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=10922.

OSHA Residential Fall Protection Web Page: www.osha.gov/doc/topics/residentialprotection/ index.html.

 

OSHA Compliance Guidance:

Compliance Guidance for Residential Construction – STD 03-11-002 (dated 12/16/2010)

Available online at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=4755.

State Plan Guidance: States with OSHA-approved state plans may have additional requirements for Residential Roofing. For more information on these requirements, please visit:www.osha.gov/dcsp/osp/statestandards.html.

Help for Employers: OSHA's On-site Consultation Program offers free and confidential advice to small and medium-sized businesses in all states across the country, with priority given to highhazard worksites. On-site Consultation services are separate from enforcement and do not result in penalties or citations. Consultants from state agencies or universities work with employers to identify workplace hazards, provide advice on compliance with OSHA standards and assist in establishing injury and illness prevention programs. To locate the OSHA Consultation Program nearest you, call 1-800-321-OSHA (6742) or visit www.osha.gov/dcsp/smallbusiness/consult.html.

Almost every OSHA area office has a Compliance Assistance Specialist to assist employers in complying with OSHA standards. To find the Compliance Assistance Specialist nearest you, call 1-800-321-OSHA (6742) or visit: www.osha.gov/html/RAmap.html.

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LEGAL  DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

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OSHA’S CONFINED SPACE STANDARD FOR CONSTRUCTION

Posted By Western States Roofing Contractors Association, Monday, September 10, 2018


By: Trent Cotney, Cotney Construction Law

8621 E Dr. MLK Jr. Blvd, Tampa, FL 33610
866.303.5868 | tcotney@cotneycl.com

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According to the Occupational Safety and Health Administration (OSHA), a confined space is one that is large enough for an employee to enter fully and perform assigned work, such space is not designed for continuous occupancy, and is limited or restricted in means of entry or exit. Some examples include tanks, storage bins, silos, and underground vaults to name a few. A confined space is determined to be a permit-required confined space if has one or more of the following: potential hazardous atmosphere; material with potential to engulf an entrant; can cause entrant to be trapped or asphyxiated by inwardly converging walls/floors sloping downward, or any other serious safety/health hazard.

In order to better understand the allocation of responsibility under OSHA’s confined space standards, it’s helpful to understand the definitions of the parties involved with the permit space.  A competent person is one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees and who has the authority to take prompt corrective measures to eliminate them.  A controlling contractor is the employer that has overall responsibility for construction at the worksite.  A host employer is the employer that owns or manages the property where the construction is taking place.  The entry employer, which is a new term to the standard, refers to any employer who decides that an employee it directs will enter a permit space; in other words, this may be a roofing contractor, whether a contractor or subcontractor.   An attendant is an individual stationed outside one or more permit spaces who assesses the status of authorized entrants and who must perform duties specified by section 29 CFR 1926.1209.  An entry supervisor refers to the qualified person responsible for determining if acceptable entry conditions are present at a permit space where entry is planned, for authorizing entry and overseeing entry operations, and for terminating entry as required.

Before beginning work on a worksite, a competent person must identify all confined spaces and permit spaces.  If the worksite contains a permit space, the roofing contractor must inform exposed employees and the controlling contractor of the existence and location of, and the danger posed by, each permit space.  If employees will not be entering permit spaces, the roofing contractor must take measures to prevent those employees from entering.  If employees will enter a permit space, the roofing contractor must have a written permit space program.  The OSHA website provides an example program for reference.

Before operations begin, the host employer must coordinate with the controlling contractor and provide information about the location, hazards, and precautions taken with regard to the permit space.  The controlling contractor must communicate that information to and coordinate with each entity which may enter the permit space or whose activities may result in a hazard in the permit space.  The controlling contractor must ensure that multiple entry employers do not create hazards for each other.  The entry employer must inform the controlling contractor of the permit space program that it will follow and the foreseeable hazards in each permit space.

As part of the permit space program, each entry employer must:

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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.

Trent Cotney, CEO of Cotney Construction Law, is an advocate for the roofing industry, General Counsel of Western States Roofing Contractors Association (WSRCA), Florida Roofing & Sheet Metal Contractors Association (FRSA), Roofing Technology Think Tank (RT3), Tennessee Association of Roofing Contractors (TARC), and several other local roofing associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com. 

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Never Sign an OSHA Witness Statement

Posted By Western States Roofing Contractors Association, Monday, July 23, 2018

Courtesy of: Trent Cotney, Cotney Construction Law

Tel: 866.303.5868 | Email: tcotney@cotneycl.com

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Never Sign an OSHA Witness Statement

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 OSHA’s interviewing process, the use of witness statements by OSHA, and suggests alternatives to signing a witness statement.

 

Everyone has the right to counsel.

First and foremost, it should be noted that any member 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 job site, 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 job site, thereby limiting exposure to additional potential violations.

With regard to crew member interviews, management and counsel for management generally 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.

 

What will OSHA ask?

During the interviews, OSHA will ask a variety of questions regarding safety training and job site 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 job site specific questions will focus on the who, where, when, what, and how. In particular, employees will be asked questions regarding training they received and commands they received on the date of the incident. For example, 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 (even if they were). 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.

 

Written witness statement.

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. This leaves the CSHO with only his or her own notes, which can still be used as evidence, or the CSHO can still contact the local Area Office and ask that it issue a subpoena requiring that the employee’s 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 or her answers and be in a better mindset for purposes of providing testimony. It also gives the employee the chance to speak with counsel and/or management if he or she wishes to do so.

Obviously, regardless of when testimony is provided, all employees must always tell the truth. However, even a slight postponement in giving testimony can provide an employee with enough time to properly collect his or her thoughts, and ensure that he or she gives truthful testimony, while remaining alert enough to detect and avoid the onslaught of “Gotcha!” questions OSHA loves throwing at unsuspecting witnesses.

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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.

Trent Cotney, CEO of Cotney Construction Law, is an advocate for the roofing industry, General Counsel of Florida Roofing & Sheet Metal Contractors Association (FRSA), Roofing Technology Think Tank (RT3), Tennessee Association of Roofing Contractors (TARC), and several other local roofing associations. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.

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OSHA's Fall Prevention Campaign

Posted By Western States Roofing Contractors Association, Thursday, June 28, 2018

Courtesy of: OSHA.gov

 

FALLS ARE THE LEADING CAUSE OF DEATH IN CONSTRUCTION. In 2016, there were 370 fatal falls to a lower level out of 991 construction fatalities (BLS data). These deaths are preventable.

Since 2012, OSHA has partnered with the National Institute for Occupational Safety and Health and National Occupational Research Agenda (NORA) - Construction Sector on the Fall Prevention Campaign to raise awareness among workers and employers about common fall hazards in construction, and how falls from ladders, scaffolds and roofs can be prevented.

 

PLAN ahead to get the job done safely

When working from heights, employers must plan projects to ensure that the job is done safely. Begin by deciding how the job will be done, what tasks will be involved, and what safety equipment may be needed to complete each task.

When estimating the cost of a job, employers should include safety equipment, and plan to have all the necessary equipment and tools available at the construction site. For example, in a roofing job, think about all of the different fall hazards, such as holes or skylights and leading edges, then plan and select fall protection suitable to that work, such as personal fall arrest systems (PFAS).

 

PROVIDE the right equipment

Workers who are six feet or more above lower levels are at risk for serious injury or death if they should fall. To protect these workers, employers must provide fall protection and the right equipment for the job, including the right kinds of ladders, scaffolds, and safety gear.

Use the right ladder or scaffold to get the job done safely. For roof work, if workers use personal fall arrest systems (PFAS), provide a harness for each worker who needs to tie off to the anchor. Make sure the PFAS fits, and regularly inspect it for safe use.

 

TRAIN everyone to use the equipment safely

Every worker should be trained on proper set-up and safe use of equipment they use on the job. Employers must train workers in recognizing hazards on the job.  For more information on fall prevention, and keeping your employees safe on the job, visit the WSRCA MOBILE SAFETY SOLUTIONS website.

 

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ROOFING EDUCATION CONFERENCE

Posted By WSRCA, Tuesday, April 17, 2018



Western Roofing Expo 2018


Roofing Education Conference

WSRCA knows that you as a roofing or waterproofing contractor need to stay on top of the latest technical developments in the industry — and that's no easy feat! OSHA compliance, product issues, and best business practices are just a few of today's concerns. WSRCA has put together an amazing line-up of premium educational workshops for you - the roofing contractor - to succeed in today's competitive business environment. Earn CEU's, educate your company, and get a leg up on thecompetition!


Presented by: the Western States Roofing Contractors Association

ONLINE REGISTRATION SPONSORS


Follow WSRCA on Facebook, LinkedIn, Twitter, and Google +


   

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Repeat Violations will add up quick in 2018

Posted By Darin Douglas, Lowe Roofing, Inc., Monday, January 22, 2018


 

 

Courtesy of: OSHA.gov News Release

https://www.osha.gov/news/newsreleases/region5/01032018

 

U.S. Department of Labor Finds Ohio Contractor Continues
To Expose Roofers to Falls and Other Safety Hazards

HOLLAND, OH ‒ The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited an Ohio roofing contractor for exposing employees to falls and other safety hazards. The contractor, Casey Bortles, faces proposed penalties totaling $91,629.

On Oct. 26, 2017, inspectors observed five roofers at a Waterville residential site working at heights greater than 8 feet without adequate fall protection, and employees using nail guns without eye protection. OSHA also cited the company for failing to train workers on fall hazards, and for not developing and maintaining an accident prevention program. Bortles has been cited for similar violations four times since 2014.

“This employer continues to expose employees to fall hazards by failing to comply with federal safety requirements,” said OSHA Toledo Area Office Director Kim Nelson. “Employers are responsible for ensuring employees are adequately protected from the hazards that exist at their worksites.”

The company has 15 business days from receipt of its citations and penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

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 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 http://www.osha.gov.

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Drive Safely and Buckle Up!

Posted By Darin Douglas, Merge 3 Technology, Inc., Wednesday, January 3, 2018
Be careful on the roads this Year.  Vehicle safety is a big part of your company safety program.  By training your team to buckle up and follow all traffic laws you take a big step towards sending everyone home safe.  

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