The Occupational Safety and Health Administration (OSHA) is planning to take actions that will directly impact employers in the construction industry.
Among the most prominent are the proposed amendments to the Hazard Communication Standard (HCS) that are being designed to conform to changes in the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS).
Although the standard applies to all employers that ship, store or handle hazardous materials, construction employers may have new compliance obligations from some materials now being classified as “hazardous” or managed in a different hazard class, resulting in new program, training and communication obligations.
The proposed amendments, among other things, seek to modify certain hazard classes, conditions for labeling, and language used on safety data sheets (SDS), point out attorneys Cressinda Schlag and Kelli Morgan Dreger of the Jackson Lewis law firm. In addition, OSHA’s amendments propose updates to the HCS classification and labeling framework to be consistent with more recent versions of GHS.
OSHA’s proposed HCS amendments have the potential to affect many products used on construction sites, including aerosolized products and products in small containers, as well as alter some chemical product labels and SDSs, the attorneys note. They add, “Construction workers often encounter and use materials that are or will be defined as ‘hazardous’ under the HCS.”
These materials include, but certainly are not limited to, all cleaning products used for sanitation, paint and concrete. One major amendment proposes to revise criteria for the classification of certain health and physical hazards, including unstable gases, non-flammable aerosols, skin corrosion, or irritation, eye irritation and aerosols, generally. The proposed amendments also would create a new hazard class for desensitized explosives.
If the proposed amendments become effective, covered employers in the construction industry will need to ensure proper product classification, update their written programs, SDSs, and training materials to comply, the attorneys point out.
“Employers also may need to modify their labeling procedures and methods of communicating chemical hazards to workers and other employers on site,” they explain. “Once these changes are complete, employers will have to train affected managers, supervisors and employees.”
Some stakeholders have opposed the amendments. California’s Division of Industrial Relations Division of Occupational Safety and Health (Cal/OSHA), for example, has expressed a fear that the proposed amendments will limit protections for workers.
Cal/OSHA submitted comments with the federal agency contending that the amendments will reduce the amount and quality of chemical hazard information available to workers, asserting this is because it discounts chemical evaluations from the Environmental Protection Agency and other regulatory agencies.
The proposed amendments also may conflict with hazard communication and regulatory frameworks already adopted by some states. These are already in place in California and Washington state, Schlag and Dreger observe.
The good news is that there is plenty of time for construction and other affected employers to make their views known to the federal safety agency. A virtual public hearing on the proposed revisions will be held Sept. 21. See Docket No. OSHA-2019-0001, at http://www.regulations.gov.
What Else Is on the Agenda?
Construction workers encounter these hazards with greater frequency than do most other workers, especially those who work with concrete, stone and metals, according to Jackson Lewis attorney Courtney M. Malveaux.Other OSHA proceedings that will have an impact on construction employers were recently detailed on the agency’s mid-year regulatory agenda, including HM standards addressing blood lead levels and crystalline silica.
Perhaps the most consequential of OSHA’s agenda items is the standard for heat illness prevention in both outdoor and indoor work settings. “Heat is the No. 1 weather-related killer and the problem has become more dangerous in recent years as global temperatures have continued to rise,” Malveaux says. “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 to cite employers when inspectors find that employee injuries were the result of excessive heat at a worksite. “That will change,” Malveaux asserts. “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.”
A proposed communication tower safety standard also 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,” Malveaux predicts. “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.”
“If this reversion occurs, it likely signals that OSHA will view drug testing and incentive programs as a form of employer retaliation,” Malveaux says. Proposed changes would require facilities 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.Employers also should be aware that enhanced workplace injury and illness tracking is on the way. OSHA has proposed to revert to the 2016 version of the rule following a change that occurred under the Trump administration in 2018. That proposed regulation includes anti-retaliation provisions that may discourage workplace safety and health incentive programs and post-incident drug testing.
Malveaux believes 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,” he adds.
“Those employed in construction are almost twice as likely to have a substance abuse disorder than the general population,” he notes. “Construction workers also are the most likely to use opioids and cocaine of any profession and 12% of them have an alcohol use disorder.” Reasons for these statistics are said to include long workdays, physical pain from labor and stress.
“Regardless of the cause, substance and alcohol abuse lead to more workplace accidents and injuries,” Malveaux points out. “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.”
He adds that OSHA is looking at personal protective equipment (PPE) in construction, although it is unclear how the agency 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.”
Amendments to the cranes and derricks in construction standard are on the table, but primarily for clarification and corrections. OSHA also 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 on the agenda that may have an impact on employers include shipyard fall protection for scaffolds, ladders and other working surfaces, a mechanical power presses update, and walking-working surfaces.