Builders See Potential Citations from OSHA Guidance

Questions on how proposed Occupational Safety and Health Administration guidelines for construction contractors setting up safety and health programs might later be used to cite them persisted through a two-day effort to write the recommended guidance.

The Advisory Committee on Construction Safety and Health (ACCSH), a panel of about 15 safety experts from employers, unions and other organizations, met April 25–26 to develop recommended changes to the OSHA's proposed Safety and Health Program Management Guidelines to make the advice more relevant to the construction industry.

The final version of the construction guidelines likely will be released later this year, separately from guidance for workplaces covered by OSHA's general industry rules (62 CLR 10, 3/3/16).

Many of the revisions approved by the ACCSH were included in changes suggested by ACCSH Chairman Pete Stafford, executive director of the union-sponsored CPWR – The Center for Construction Research and Training.

 Multi-Employer Work Sites

The ACCSH-recommended changes preserve the original document's concepts of management leadership on safety and health efforts, seeking advice and buy-in from rank-and-file workers and unions, and promoting workplace cultures where safety concerns can be raised without fear of retribution.

The proposed construction version adds detail on implementing safety programs at multi-employer building sites, a common situation at most construction projects where a general contractor or project owner likely has oversight.

The construction guidance also adds provisions for keeping workers informed of the ever-changing hazards at construction projects. For example, the recommendations call for job safety analyses to be routinely conducted to identify hazards and ways to protect workers.

 ‘We've Got a Problem.'

While ACCSH members unanimously approved the recommendations, some committee members and speakers raised concerns with how OSHA would use the final guidance in the long-term.

"If this is going to be an enforcement program, we've got a problem," said committee member Donald Pratt, chief executive officer of Pratt Building Co. and Construction Education & Consulting Services of Michigan.

Kevin Cannon, a committee member and senior director of safety and health for the Associated General Contractors of America, said OSHA should explain how it will use the guidance when inspectors are deciding if employers are complying with OSHA rules.

 ‘Frequent and Regular.'

Fueling the concerns of the employer representatives is the OSHA rule at 29 C.F.R. § 1926.20 that lays out broad contractor duties.

The rule says "it shall be the responsibility of the employer to initiate and maintain" safety and health programs and that the programs "shall provide for frequent and regular inspections" by competent persons selected by employers.

Cannon and Pratt are concerned that once the guidelines are issued, OSHA inspectors will cite employers for violations of 29 C.F.R. § 1926.20 because they weren't following the guidance. 

Speaker Dan Johnson, of the safety consulting company SFI Compliance Inc., said that even without the guidance, differences between contractors and OSHA inspectors over the definition of "frequent and regular inspections" has led to several citations and appeals.

Employee representatives pointed out that the proposed guidance states, "the guidelines are advisory and informational in content" and "do not create any new legal obligations."

Nonetheless, OSHA staff members assisting the committee said they couldn't offer an assurance that the guidance wouldn't be used to cite employers.

Reproduced with permission from Construction Labor Report, 62 CLR 257 (May 5, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>