Recent OSHA activity indicates possible changes in the scope and enforcement of the newly-created Improve Tracking of Workplace Injury and Illnesses Rule (Electronic Reporting Rule). OSHA intends to collect less data than the rule requires in order to address concerns about publicizing personally identifiable information (PII). This move suggests other changes to the rule may follow. Continue Reading Recent OSHA Regulatory Shifts May Address Concerns About Electronically Submitting Workplace Injury and Illness Data
UPDATE: On November 22, 2017, OSHA announced that it moved the electronic reporting deadline for 2016 data and information from December 1, 2017 to December 15, 2017. The following blog post has been updated to reflect this change. No other parts of the new electronic submission regulations were changed.
December 15, 2017 is the final deadline to comply with the newly implemented Occupational Safety and Health Administration (“OSHA”) regulations that require electronically submitting 2016 workplace injury data and information to OSHA. To help navigate these regulations, here are few reminders about this new reporting format that affects almost all construction industry businesses.
As we discussed last summer, the Occupational Safety and Health Administration (OSHA) issued a new Confined Space in Construction Standard, which went into effect on August 3, 2015 and required heightened training, continuous worksite evaluations and communication for all construction workers performing work in manholes, crawl spaces, tanks and other confined spaces not intended for continuous occupancy that are located on construction projects. Enforcement of the new standard was postponed through October 2, 2015 for all contractors covered by the standard to provide additional time to train and acquire necessary equipment. In October 2015, OSHA further extended the temporary enforcement delay through January 8, 2016, but this time limited the extension to contractors performing residential construction work, which includes those contractors working on single-family homes, duplexes and townhouses. The extension did not apply to contractors working on multi-unit apartment buildings. Earlier this month, OSHA issued a memorandum that again extended the delayed enforcement of the standard through March 8, 2016 for residential construction work.
Under the delay policy, OSHA will not issue citations to contractors engaged in residential construction work if the contractor is making good faith efforts to comply with the confined space standard, as long as the contractor complies with either the training requirements of the new standard, found at 29 CFR 1926.1207, or the former training requirements, found at 29 CFR 1926.21(b)(6)(i).
Factors considered by OSHA to determine if a contractor is engaged in good faith compliance efforts include:
- If the contractor has not trained its employees as required under the new standard, whether the employer has scheduled such training;
- If the contractor does not have the equipment required for compliance with the new standard, including personal protective equipment, whether the contractor has ordered or otherwise arranged to obtain such equipment required for compliance and is taking alternative measures to protect employees from confined space hazards; and
- Whether the contractor has engaged in any additional efforts to educate workers about confined space hazards and protect workers from those hazards.
Full enforcement of the confined spaces standard for non-residential contractors remains in effect, and those contractors should continue to comply with the standard’s requirements. We will continue to monitor the enforcement of the standard for residential projects.
Lisa M. Wampler is a Partner in the Construction Group of Cohen Seglias Pallas Greenhall & Furman PC. She has an active and diverse construction litigation practice and represents owners, general contractors, construction managers and the different trades in complex matters involving all phases of the construction process.
Lori Wisniewski Azzara is an Associate at Cohen Seglias Pallas Greenhall & Furman PC. Lori practices in the areas of construction and commercial litigation and has experience in contract negotiation, claims for delay and inefficiency, mechanics’ liens, and all types of contractual dispute.
Last month, the Occupational Safety and Health Administration (OSHA) added a new rule that provides increased protections to those working in confined spaces on construction projects. The new rule, which goes into effect on August 3, 2015, applies to manholes, crawl spaces, tanks and other confined spaces not intended for continuous occupancy that are located on construction projects. OSHA predicts that the new rule will prevent approximately 780 serious injuries and 5 deaths each year.
Confined spaces are defined as those that (1) are large enough for an employee to enter; (2) have limited means of entry or exit; and (3) are not designed for continuous occupancy. The rule provides construction workers in confined spaces with the same protections already afforded to workers in manufacturing and general industry but differs in several construction-specific respects. “Unlike most general industry worksites, construction sites are continually evolving, with the number and characteristics of confined spaces changing as work progresses. This rule emphasizes training, continuous worksite evaluation and communication requirements to further protect workers’ safety and health,” according to Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.
The new rule requires a “competent person” to initially evaluate the project site and identify all confined spaces. Employers must then train their employees on the existence, location and dangers posed by each confined space. Workers not authorized to perform entry rescues must also be trained on the dangers of attempting such rescues. Employers are further required to coordinate with emergency services before workers enter certain confined space. After this pre-entry planning is conducted, employers must continually monitor the confined space for air contaminant and engulfment hazards.
Communication is heavily emphasized in the new rule. Because multiple contractors are likely present on a project site, each with its own workers needing to enter the confined space, contractors are required to coordinate and share safety information with each other. The controlling contractor, such as the general contractor, is responsible for ensuring compliance with the new rule by its subcontractors and visitors to the project site.
Contractors who have employees or subcontractors working in confined spaces should familiarize themselves with the new rule’s requirements and immediately start implementing them. Significant fine and citations can be issued for each violation of the new rule. Additional information and compliance assistance materials are available on OSHA’s Confined Spaces website.
Lisa M. Wampler is a Partner in the Construction Group of Cohen Seglias Pallas Greenhall & Furman PC.
Lori Wisniewski Azzara is an Associate at Cohen Seglias Pallas Greenhall & Furman PC. Lori practices in the areas of construction and commercial litigation and has experience in contract negotiation, claims for delay and inefficiency, mechanics’ liens, and all types of contractual disputes.