U.S. DEPARTMENT OF LABOR
ADVISORY COMMITTEE ON CONSTRUCTION SAFETY AND HEALTH (ACCSH)
Thursday, December 4, 2014
Francis Perkins Building
200 Constitution Avenue, N.W., Room N-4437
- Pete Stafford (Chair)
- Christine Branche
- Cindy DePrater
- Charles Stribling
- Dean McKenzie
- Donald Pratt
- Jeremy Bethancourt
- Jerry Rivera
- Kevin Cannon
- Letitia Davis
- Laurie Shadrick
- Lisa Wilson
- Palmer Hickman
- Roger Erickson
- Sarah Coyne
- Steve Hawkins
- Thomas Marrero
- David Michaels
- Jim Maddux
- Val Schaeffer
- Lauren Goodman
- Heather Phillips
- Charles Harvey
- Travis Parsons
- Scott Schneider
- Erik Kampert
- Opening Remarks/Introduction of Dr. Michaels, ACCSH Chair
- Assistant Secretary's Agency Update and Remarks, Dr. David Michaels
- Directorate of Construction Regulatory Update, Jim Maddux, Director
- New Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection, Dr. Val Schaeffer, Directorate of Standards and Guidance
- Removal of Coke Oven Emissions Construction Standard in Standards Improvement Project-IV Rulemaking, Lisa Wilson, Office of the Solicitor; Dayton Eckerson, Directorate of Construction
- Clarification of Employer's Continuing Obligation To Make and Maintain Accurate Records of Each Recordable Injury and Illness, Lauren Goodman/Heather Phillips, Office of the Solicitor
- Presentation on 29 CFR part 1926, subpart V, Electric Power Generation, Transmission And Distribution, Charles Harvey, Directorate Of Enforcement Programs
- Temporary Worker Workgroup Report, ACCSH Chair/Workgroup Co-Chairs
- Training and Outreach Workgroup Report, ACCSH Chair/Workgroup Co-Chairs
- Health Hazards, Emerging Issues and Prevention Through Design Workgroup Report, ACCSH Chair/Workgroup Co-Chairs
- Chair Remarks/Public Comments
- Motions: 93, 99, 141, 186, 206, 224, 235
PROCEEDINGS [9:00 a.m.]
MR. STAFFORD: It looks like we have a quorum present, so I'd like to go ahead and call the meeting to order.
Welcome, everyone, to OSHA's Advisory Committee on Construction Safety and Health. My name is Pete Stafford. I'm the Chair of ACCSH. Welcome to the meeting this morning. I'm the Labor representative, and we're happy to have all of you here.
We have David Michaels in the saddle, so I wanted to be sure that we got started on time, and I appreciate David being here with us this morning, as always.
So, let's start the meeting by doing self-introductions. We'll go around this table first, and then we'll go to the audience.
I'd like to remind ACCSH members to please speak clearly into the microphone for our recorders. Also, when we get into the discussion, if you have a point to make, or a question, please state your name prior to speaking for the benefit of the court reporter.
So, with that, let's do introductions, starting to my right.
MS. WILSON: Lisa Wilson, ACCSH counsel.
MR. CANNON: Kevin Cannon, employer rep, Associated General Contractors of America.
MR. MARRERO: Tom Marrero, employer rep with Tradesmen International.
MR. HICKMAN: Palmer Hickman, employee rep.
MS. DAVIS: Tish Davis, public rep from the Massachusetts Department of Public Health.
MR. RIVERA: Jerry Rivera, employer rep, Power Design.
MS. SHADRICK: Hi, Laurie Shadrick, employee rep, United Association of Plumbers and Pipefitters.
MR. STRIBLING: Good morning. Chuck Stribling, state representative, Kentucky Labor Cabinet.
DR. BRANCHE: Christine Branche, Federal rep, NIOSH.
MR. HAWKINS: Steve Hawkins, state rep, Tennessee OSHA.
MR. PRATT: Don Pratt, employer rep, and also representing National Association of Homebuilders.
MR. BETHANCOURT: Jeremy Bethancourt, public representative.
MS. DePRATER: Cindy DePrater, employer rep, Turner Construction Company.
MR. ERICKSON: Roger Erickson, employee rep, International Brotherhood of Boilermakers.
MS. COYNE: Sarah Coyne, employee rep, International Union of Painters and Allied Trades.
MR. McKENZIE: Dean McKenzie, OSHA.
MR. STAFFORD: Good morning again, everyone.
I'd like to remind you we have a full agenda today, and as always, we welcome public comment. We set aside time at the end of the meeting for public comment, and I ask that you please sign in, the signup sheet in the back, if you're interested in making comments to the committee.
Usually we'll try to slot the last half-hour or so for public comments, but of course, it has to be fluid, depending on how we get through the agenda.
I think Damon at some point will be passing around, if not already, a sign in sheet for the folks that are here in the audience, so please be sure to sign that, as well.
Dean, any announcements?
MR. McKENZIE: No, sir.
MR. STAFFORD: Lisa?
MS. WILSON: No.
MR. STAFFORD: Okay. We're good to go.
Dr. Michaels, it's good to see you. It's always great that you can take the time and come and talk to our committee.
ASSISTANT SECRETARY'S AGENCY UPDATE AND REMARKS
DR. MICHAELS: Thank you so much. It's a pleasure to be here. Let me begin by thanking all of you for your great service, both on the ACCSH but also, you know, in your every-day lives, the commitment that you all have to safety is really very important. It's a model for all of us.
And I'm pleased we have a good crowd here today, as well. It's a testimony to the importance of this workgroup.
I want to welcome a few members, new members. I'm really pleased you could join us.
Cindy DePrater of Turner Construction, thank you for joining us.
Palmer Hickman, International Brotherhood of Electrical Workers, thank you.
And I'm really pleased the -- one of America's really leading experts in construction safety and has done -- made a tremendous contribution, Christine Branche, who is representing NIOSH, and we're really pleased that you could join us on this committee.
I understand you had some very successful workgroup meetings yesterday, and thank you all. We're looking forward to your reports.
You know, as many of you know, one of the issues that we've been focused on for the last year, two years, really, is around temporary workers, and I think you had -- you've done some excellent work in that.
The charge I gave to you, and you have a workgroup working on this, is to help develop recommended practices for employers for safety to include temporary workers -- contractors, subcontractors -- to essentially focus on the changing nature of the American workplace.
In the construction industry, that isn't as new as other places, but certainly, in sites of employment where you have employers -- several different employers providing workers is often a challenge for safety.
The growth of the temporary staffing agency workforce is somewhat new. They're not that new in the United States but one that we're focused on, and I very much look forward to your report.
I want to give a shout out to Tom Marrero, who has really helped us a great deal on this. As many of you know -- if you don't know, we've been -- we have an alliance with the American Staffing Association.
We work closely with a number of staffing agencies and the association to help identify the recommended practices that we think should be followed by host employers and staffing agencies to ensure the safety of workers, and many people on this workgroup contributed to that publication.
We have more publications coming down the line, and we look forward to your input, as well.
As you all know, while it's very -- we're eager to be working with the staffing association and with -- with Tom's organization and with other staffing agencies.
The bottom line is that the host employer has to provide a safe workplace. I mean, all employers have that responsibility, but we have to make sure that host employers fulfill their responsibility to protect every worker at the worksite that they control.
And so, we have to work through this and make sure that everybody is covered, that the staffing agencies are involved, contractors, subcontractors.
We certainly are concerned about all employees whether or not they're correctly or incorrectly classified as independent contractors. Everybody needs to be safe, and we really appreciate your work on that, and so, let's see where that goes, and I think, over the next couple of years, we will continue to work on that, but I think we've made great progress, and I think part of that progress is really your contribution.
So, thank you on that.
I want to update you on another topic that's come up here that I think we've made some progress on, as well, which is the protection of workers involved in cell towers, both in constructing cell towers, in the maintenance of cell towers, and increasingly we see the -- the refurbishment of cell towers to make them able to carry heavier transmitters and other equipment.
In the past couple of years, we've seen a spike in fatalities of workers involved in cell towers. It's very disconcerting. We think it's an issue that needs to be addressed, and we've gotten some help from many of you.
As I think most of you know, we had a very successful meeting -- we held a very successful meeting jointly with the Federal Communications Commission just a couple of months ago where the chair of the FCC, Tom Wheeler, and Secretary Tom Perez, the Labor Secretary, together, called a meeting.
We had representatives from all the major carriers, the cell phone carriers, the folks who build cell towers, ones who maintain cell towers, the unions involved, talking about how we needed a joint industry-wide commitment to safety.
We can't have anymore falling workers.
We continue to work with the FCC on some best practices guidance. We have a regular call with them, and I think it's -- it really has raised this issue to a higher level.
We're now in the final stages of reviewing a request for information that we'll put out in the Federal Register on communications towers, and we want to get the input of any people on ways we can move forward to make sure workers are safe.
We have made, also, progress on an area I think that many of you have been involved with for too many years, which is the confined space in construction regulation, and I know, you know, we've been focused on that, really, for, I'm embarrassed to say decades, but in fact, decades.
You know, last month, November 13th, we submitted our final rule to the Office of Management and Budget for internal review, and we've already had some discussions with the OMB staff.
You know, I can never predict exactly when a rule will be published, but within the next few months, we will see a final rule.
You know, during the comment period, we -- we were told by many, many of our folks who participated in our process that our rule should be more like the general industry rule, and so, we've listened to their comments.
So, the final rule reflects a lot of the comments. It's somewhat different than the rule that we proposed. Everyone will see that.
We can't talk more about it, because we're in the regulatory process, but hopefully we'll see it soon, and I think everybody will be pleased with it.
January 1st begins implementation of a new set of regulations around notification of OSHA when injuries occur, severe injuries occur, and again, this is something that, while we've talked about it a great deal for a while, it finally is happening in January.
We'd like your help getting the word out, because we now have a requirement that when a worker is severely injured, one worker is severely injured, the employer must notify OSHA.
By "severely injured," in this case, we mean a worker who is hospitalized, not just taken to the hospital for observation but admitted to the hospital, or when a worker has a part of their body amputated, cut off, or when they lose an eye.
Now, some states already have rules very similar to this. I'm looking at Chuck Stribling, who -- Kentucky has very similar rules. California has some similar rules.
So, this isn't totally new, but previously OSHA's requirement was only that we would be notified when there was a fatality or when three workers were admitted to a hospital. That's a very high bar.
We were not informed of many, many, you know, serious injuries, and we often found when we -- when we'd investigate after a fatality or, you know, a very serious injury that we heard about, that if we had gotten there earlier, you know, that there had been previous serious injuries at that workplace.
We look at this from the public health point of view as sort of a sentinel health event. If a worker is injured to the point of being hospitalized or loses a piece of their body, we know that there's something going on at that workplace that needs some intervention.
It's telling us there is a -- not only are there serious hazards at this workplace but they've already hurt someone.
Now, there may be rare exceptions where that's not the case, and of course, you know, that can happen, but in many cases, we will see workplaces where there are very hazards and intervention needs to be done.
But OSHA isn't going to be able to inspect all those workplaces. You know, by law, we inspect after fatalities, and we will continue to do that, but you know, the Federal OSHA does about 40,000 inspections a year.
Our state partners -- you know, Chuck is here, and then we have Steve from Tennessee -- our state partners do about 50,000 inspections a year. Ninety thousand inspections all together.
There are well over 90,000 amputations and hospitalizations every year, and obviously, we have to do inspections of things otherwise, as well.
So, we are not going to inspect -- Federal OSHA will not inspect every workplace after we've been informed of an amputation or a worker being hospitalized. We can't. We just don't have the staff.
By the way, this regulation goes into effect January 1st only in Federal states. It doesn't go into effect January 1st in state plan states. The states have six -- up to six months to adopt their regulations.
They have to be at least as effective as ours, and so, we'll work -- we'll work with the states that need to get there. Some states, as I said, are already there.
So, the question I think many people are asking is what will we do when we get these notifications, and in many cases, we will have a conversation with the employer, and we'll ask the employer what they plan to do, what sort of an incident investigation they will undertake to identify why this worker was injured and what needs to be done to make sure additional workers aren't injured.
And this is -- this is new to us, and I think what we do January 1st won't be the same as what we do May 1st or January 1st next year, cause we'll learn as we go, but it will establish a new relationship between OSHA and many employers who previously didn't have contact with OSHA, and our objective is to help them.
We want to take different approaches and use our different tools to make sure that if one worker is injured, that that's the last worker injured at that workplace, and I think far too often, as I said in the past, workers were injured, we didn't hear about it, nothing was done, and then another worker was injured and then another worker was injured until it became so obvious that we heard about it and went in there. We don't want that to occur. We think these are teachable moments.
After a worker is badly hurt, everybody in that workplace is tremendously impacted, and there's no one who has ever worked in a place where a worker has been killed or badly hurt that doesn't recognize what -- what change that results in.
So, we want to take that moment, that terrible moment where people realize that there was a serious hazard here that wasn't addressed, and help the employer make sure that no other worker is hurt.
So, we're moving forward on that. We'd love your help on that, as well. As we develop things, you know, we will certainly be interacting with you.
We'll talk about what sort of approaches we're taking and see if we -- what we can do to make sure that when we have that initial conversation, set of conversations with employers, after a worker has been hurt, out of that comes meaningful change at the workplace to protect workers in the future.
We're eager, as I said, to get the word out, to make sure employers know to call us. I know the National Association of Homebuilders has a great tool kit on their website about worker -- notifying OSHA when -- if one of their members has a worker that's hurt. Take a look at that.
We will have a new website up by January 1st so people can notify us online, but they could always call the local area office or call 1-800-321-OSHA. That's our 800 number, 24 hours a day, when they notify us. So, we really want to get the word out.
So, today is actually an important day in safety and health. Today is the day that the Bureau of Labor Statistics is releasing the Survey of Occupational Injury and Illnesses.
Now, I can't actually tell you what the SOY, as it's called, says, because it's embargoed until 10:00 o'clock, and we take our embargoes very seriously here.
You know, the Labor Department has a lot of data we never discuss until it's formally released, and it will be released in about 45 minutes, and we will get -- make sure you get the information that it says, but I want to talk about the SOY and injuries in general.
You know, the BLS takes a survey of -- a sample of employer logs, the OSHA 300 logs that are kept, and the 301 logs. They are collected by the Bureau of Labor Statistics. They are coded by states. I think Tish Davis is very much involved in this in Massachusetts, and she could probably talk more about the process.
But out of that, the BLS estimates how many workers are injured every year in many different sectors of the economy. This is the first of their releases.
There will be another one in a few weeks that will give a lot more case information, that will talk about aspects of -- different aspects of it, the days away from work, the job transfers.
That's included, to some extent, in today's release. There will be more coming up.
But this is important for two reasons. One is it helps us and helps industries understand bigger patterns. It helps us focus.
If we see that injury rates are going up in a sector or going down in a sector, it tells us that's an area that needs some assistance from us, and not just from us but from NIOSH and others. It gives us the big picture where things are going.
But injury logs are really more important tools for employers. I think everybody here knows that. The injury log is, you know, secondarily a tool for all of us to understand what's going on in the country, but more importantly they're for employers.
Employers need to have an accurate understanding of what's going on in the workplace, and an injury log is sort of the minimum.
I think every employer who is involved here knows that they look at hazards beyond what simply shows up on their injury logs.
I mean, the employers who really understand safety and health investigate injuries, but they also investigate near-misses and other sorts of incidents. But they look at their injury logs, and the injury logs, as I said, are sort of the absolute minimum to understand what's going on in the workplace, and they're obviously what BLS uses to help us figure out what's going on in all workplaces, in all industries across the United States.
So, you're going to hear a presentation today from Lauren Goodman about one of the -- one of our upcoming regulations, which is a clarification of the employer's continuing obligation to maintain accurate records, and this is really about making sure these OSHA logs are accurate and complete.
We've had a longstanding position, you know, really, since -- you know, this is over 40 years -- that it's the employer's duty to record an injury or illness, and that duty continues for the full duration of the record retention period.
That's about five years, five years after the end of the calendar year within which the injury occurred, and we -- we held this position -- we enforced it for four decades. The OSHA Review Commission upheld this.
But a couple of years ago, the Circuit Court issued a decision reversing that, and so, we need to clarify what the employer's obligation is, and so, we're going to hear a presentation about that.
To us, this is important, because it's about accuracy, and every employer really needs accurate records. They need complete records. They need accurate records.
We need those when we go into a workplace. BLS needs those to understand what's going on in the workplaces across the country.
And so, we want to make sure records that are kept by employers are as accurate and complete as possible.
So, we're going to talk about that a little later today, and I think you'll find that very interesting. It's obviously something of great importance to us.
So, those are sort of the updates I wanted to give you. I decided to spare you my Power Point today. But I'm happy to answer any questions, and again, thanks for everything you do.
MR. STAFFORD: Thank you, Dr. Michaels.
Any questions or comments for Dr. Michaels?
MR. CANNON: Hello, Dr. Michaels. Kevin Cannon, employer rep, AGC of America.
You, of course, can't say much, but as far as silica is concerned, can you give us -- you didn't mention anything, but can you give us sort of a projected timeline as to what the agency is shooting for?
DR. MICHAELS: Yeah. We're aiming to get this out -- yeah, that's a great question. We held our silica hearings earlier this year. Many people here were involved. They were terrific hearings. We had several weeks of hearings.
We have thousands and thousands of pages of submissions of -- there are records of the testimony where many people got up and gave very important testimony and then answered questions, because you know, we know our system -- anybody who gives testimony has to answer questions from other people who give testimony.
So, we've gathered that. We have a tremendous amount of information that we're now trying to deal with. We're going through every comments that we received, and we received thousands of comments, and every page of testimony.
Our objective is to issue the -- the silica standard in final form in early 2016. I think we'll get there. We have a terrific staff working on that. We can't talk about the specifics, because we're in this regulatory process.
But we appreciate everybody's contribution to this, and we're moving forward.
In the meantime, though, it's worth noting, especially in the construction industry, there is no one who doesn't think our current standard is out of date, and you know, one thing we developed in the -- you know, for the rulemaking procedure is that -- our table that said, if you follow certain procedures, you will not be in violation of the standard, and we developed that to say you will not be in violation of the proposed standard, which is, you know, 20 percent of the -- of the current standard in construction, 50 instead of 250.
So, we certainly want to encourage employers in the construction industry to follow that table now. It's not a regulatory requirement at all, and we certainly cannot enforce it, but if you want to make sure your employees are safe, take a look at that table, and if you follow that table, and you know, if you're working less than four hours, you have to do "X", if more than four hours a day, you do "Y", depending on the specific job, you know you're going to be safe.
So, we'd like to encourage employers and trade associations to tell their members. That's an easy way to go. You certainly don't have to measure. We've done -- you know, there have been so many studies of workers exposed to silica in the construction industry, we know more or less how much exposure occurs if you're doing certain types of activities, if you're grinding, if you're cutting with masonry saws, if you're doing, you know, pointing, that sort of thing.
We know enough, and so, we're encouraging employers to take a look at that table and follow those suggestions.
So, thanks for that question.
Mr. STAFFORD: Any other questions or comments?
MR. STAFFORD: I have one comment, David.
At one of our workgroup meetings on outreach and training yesterday, we had a report of the numbers on the National Falls Fatalities Campaign, and I just wanted to thank you for OSHA's commitment to that campaign, and I think, in the first year of the stand-down, it looks like we've touched about 1.5 million construction workers, and I really appreciate the agency's support and the resources you've put into it.
DR. MICHAELS: Well, thanks to all of you, and certainly thanks to NIOSH and Christine. They were one of our many partners.
We all partnered together on this, and NIOSH did a really important job, and our staff and Jim Maddux and -- led by Jim Maddux and Dean McKenzie -- worked tirelessly on that, and I think there were -- virtually everybody in this room had some involvement in this.
It was a great collective activity, and you know, we think we should do more things like this. So, thank you for reminding me of that, as well.
MR. STAFFORD: I'm assuming we'll be talking more about that as a part of Jim's report and our plans, hopefully, for the future campaign in the next stand-down.
And one final observation for you. You know, the temporary worker issue is obviously something that goes across all industries, and while we tried to have a formal joint ACCSH/NACOSH meeting, with the schedules, that didn't quite work out, but we did have some ACCSH participation in the workgroup yesterday, as I understand it, and I don't know if this is me as Chair or if this is on the agency or is a FACA legal thing, but I really would encourage us to figure out how we could work more closely with the other OSHA advisory committees that are dealing with kind of parallel issues, and temporary workers is really, I think, an excellent example of that.
DR. MICHAELS: That's a great suggestion. We'll see if we can make that work.
Let me also -- you know, I neglected to thank Lisa Wilson for -- the Solicitor of Labor's representative on this committee, who really plays a very important, if, you know, quiet, role in making sure this committee accomplishes what it needs to accomplish.
So, thank you, Lisa.
MR. STAFFORD: She kicks me a lot under the table.
DR. MICHAELS: That's her job.
MR. STAFFORD: Anymore questions or comments for Dr. Michaels?
MR. STAFFORD: Okay. Well, David, thank you very much.
DR. MICHAELS: Well, thank you.
MR. STAFFORD: Mr. Maddux. Are you going to be sparing us a Power Point presentation, as well?
MR. MADDUX: No, I'm not going to give you that much of a break.
MR. STAFFORD: Okay.
MR. MADDUX: Just one of us will give you that break today.
DIRECTORATE OF CONSTRUCTION REGULATORY UPDATE
MR. MADDUX: Thanks, everybody. Really appreciate everybody's work here. As Dr. Michaels said, you know, this is very important to OSHA and, of course, for our Directorate of Construction as we work on our projects and try and improve safety and health in the industry.
I'll talk a little bit today about some statistics, a regulatory update, demolition, some of our outreach products that we've published since the last time we spoke, and a little bit about the fall prevention stand-down and campaign that Pete mentioned.
So, I just wanted to highlight some of the statistics that David was talking about. The fatalities continue to be a huge number in construction.
We saw a great decline, you know, when we had the recession and we had such a downturn in construction activity. Now we're at a time where construction is picking up, and unfortunately, fatalities have picked up with it.
These 2013 numbers -- I would just caution people -- the way that the fatality numbers work at BLS, the process, is that it's a census.
The bureau collects information on each and every fatality that occurs across the United States, and then, in their preliminary results, and their final results, as well, they -- they list only those fatalities that have been verified through three separate sources of information.
They have, I think -- is it, Tish -- about a dozen different sources that they look at, something like that, and so, there's a preliminary number that comes out, and then there's a final number that comes out.
So, when we look at the 796 number compared to the 2012 806, that's only a difference of 10. When the final numbers come in, it's actually quite likely that that will not be a decline at all, that it will be an increase in fatalities from '12 to '13.
So, I've seen several news articles kind of talking about how great it is that fatalities have declined, and of course, that's always a great thing, but we need to remember how these statistics work and whether it's a real decline or whether we just haven't got the whole story yet.
The leading causes of fatalities -- as you can see, our focus on four that we've had for many years, and these categories are actually all up from 2012 in the preliminary data.
So, these will go even higher when we get final data.
This is just our top 10 violations in construction. A lot of these are the ones that we've seen for years and support the ongoing need to be concerned about fall protection in the industry.
We need to have fall protection -- scaffolds, ladders, fall protection training.
We also continue to see -- I think we're seeing a slightly fewer number of violations, but simple head protection, PPE issues, you know, that are a little disconcerting, that, you know, such basic things are still an issue in our industry.
So, confined spaces. Dr. Michael spoke about that. I don't have much to add there except just to say, you know, how thankful that I am to our staff for -- for doing all of the work to finally get this thing moving and get it into the clearance process.
We're just very happy that it's moving along and are looking forward to publishing the final rule and working on the rollout and the implementation phase.
It's really been a long time coming, and it will be great when construction workers have the same protections from confined spaces as workers in other industries.
A little bit about cranes. We still have a lot of activity going on here. We did publish our directive earlier this year, which is a big plus. It's a big complicated standard, so we had a big complicated directive to go with it, but it seems to be going pretty well.
We also reached a settlement, finally, with the American Association of Railroads on the standard, and that settlement requires us to issue a proposed rule to deal with how the crane standard covers some of the railroad equipment.
So, we're working on that. That will probably be -- I don't know -- sometime next year.
We also have a number of cranes and derricks amendments that we're working on. We've talked about those in the past. The primary things that are of interest here are how we deal with forklifts, insulating links, and proximity alarms.
So, that's probably a little ways off, but it's getting close to getting into clearance.
And then we have, of course, the crane operator qualification and certification issue. We published our three-year extension in February to give us time to take another look at this issue and to make sure that the standards actually require crane operators to be qualified to operate cranes safely.
And so, we're working very hard. We would like to move even faster than that three years if we can figure out how to do that. You know, we still have all the usual regulatory processes that we need to follow, but we are going to do what we can.
In the meantime, we do have the general requirement in the standard that employers are required to ensure that crane operators are competent to operate that crane safely, and if they're not competent, then the employer needs to make sure that they get training.
So, that's kind of our requirement in the interim until we do something more on the issue.
MR. STAFFORD: I'm sorry, Jim. What's the mechanism for that, then, on the certification issue? Over the next three years, you're going to be --
MR. MADDUX: It's going to be a rulemaking. So, we are right now developing regulatory text.
We'll be, you know, developing a preamble, economics, and so forth, and we need to think about the process that we'll be going through moving forward. You know, whether or not we need to have a small business panel is under discussion right now.
Certainly, you know, when we have a proposal and we're getting to a point where we feel like we know where we want to go, we'll be coming to this committee to discuss it, like we do with all standards projects, and it will be going through the regular proposal notice and comment, hearings that we do on any other standard.
MR. STAFFORD: Thank you.
Go ahead, Jerry.
MR. RIVERA: Yes, Jim, a quick question.
Jerry Rivera, employer rep.
I see here that it says, if not competent, trained. You know, would employers who train their operators be deemed today as meeting the intent of the rule as it's written, and then what is -- what constitutes, you know, I guess, adequate training for this in the interim?
I know this changes, but I think employers are really concerned about what that actually means.
MR. MADDUX: And it is a very general requirement. It is the requirement that has been in effect since 2010 when the crane rule was published. So, this is not new.
This is exactly what the rule has had for the last four years, and what it means is that -- you know, it's a general requirement.
We haven't really done any interpretation of it at this point, but the employer is responsible for making sure that that crane operator is competent to do the job, and so, you know, I don't know how much they need to do to do that.
Certainly, if they've had training, that's a plus. If they've actually done some sort of an assessment, maybe an interview with the crane operator, what's your experience, how did you get trained, how did you get here, have you been on this crane before, something like that might be helpful just to know where the guy is coming from.
Subpart B was done, of course, by our Directorate of Standards and Guidance, and so, we published that standard and we're in lawsuit settlement talks right now with the Edison Electric Institute.
You know, there are a lot of very detailed issues in the standard that we're trying to work through, and we're, you know, hoping to get through that, hopefully, before the next time that we meet, we'll have a settlement and be able to discuss that.
David talked a lot about communication towers. You know, we had a big spike in 2013 in fatalities, and we've continued to have a very large number of fatalities in '14. I know Chuck had one in Kentucky that was a particularly awful incident.
We have had no fatalities or serious injury reports for the last couple of months, which is, you know, heartening. We're very hopeful that maybe we've got the attention of the industry and that we're seeing some improvements here.
We have added communication towers to the regulatory agenda, and we are planning to publish a request for information, as David spoke about, and looking forward to comment on that to see, do we need to do some specific regulatory actions to deal with these problems.
And I will say it's not always what you think. In 2013, a large number of the fatalities were simple falls and no fall protection.
Particularly, we saw, I think, about 70 percent of the cases where people had a harness on but they were not tied off to an anchorage, and of course, we all know how much good a harness does without an anchorage. None.
In 2014, this year, that has shifted, and we have seen just a few of the fatalities have been that pattern of falls, and the remainder have actually been entire towers collapsing because there was maintenance or construction work going on on them that was not being done in a way that maintained the stability of the structure, and rigging incidents, where we have rigging failures, either cable breaks or anchorage breaks, you know, for the rigging.
So, we've definitely seen this issue continue to evolve. We're keeping a very close eye on it, investigating incidents, enforcing the standards that we have, and we've issued a series of general duty clause citations this year to try and deal with some of these incidents.
MR. STAFFORD: Jerry, please go ahead.
MR. RIVERA: Jim, you mentioned that there's kind of a shift in some towers actually coming down, and one thing that I remember clearly is that some of these towers, you know, to a certain degree, the structural integrity of them at the design stage was not at certain points built to sustain the weight. Some of them you can actually shake with your body, depending on the different type of towers.
So, that's something to keep in mind, that even those where employers were trying to do their due diligence to actually tie off, it might be misleading, and that might be the reason why you're seeing, yeah, guys are tying off, but now towers are coming down.
So, that needs to be closely -- whether we're creating a broader hazard by actually mandating that they tie off without knowing the structure --
MR. MADDUX: We haven't seen any of them where it appears that the person being tied off was the cause of a collapse. The causes of the collapse have been much more straightforward.
We had one where they were removing diagonal members from the tower, to replace the diagonals in order to make the tower stronger so that it could hold more and heavier antennas. They had removed too many diagonals at the same time, weakening the structure, and it came down.
We had another incident where they were performing demolition on the structure, where they were lowering an antenna to salvage the antenna, and they had a rigging failure, and the rigging failure dropped the antenna, which then pulled over the entire structure, which then landed on top of the new tower that had been built to replace it, and brought that tower down, as well.
You know, so none of these have been due to somebody tying off to the structure. They've been due to basic errors in construction.
MR. STAFFORD: Please, Don, go ahead.
MR. PRATT: Thank you.
I'm Don Pratt, representing employers.
Jim, good morning.
MR. MADDUX: Hi.
MR. PRATT: The question I have -- has OSHA worked with the International Code Council regarding that issue you're talking about with tower failures to -- to make sure that our codes in this country are -- are set so that we don't have these kinds of failures?
I mean, I understand, if somebody is taking off bracing, that's one thing, but on the other hand, if there is a flaw in the commercial code from ICC, maybe we need to look at that at the ICC level with a little nudging from OSHA to be able to do that, and if you're going to be at the International Builders Show this year, it may give us an opportunity to talk to some of the folks at ICC about that issue.
MR. MADDUX: I am not aware of the ICC having any standards for these structures.
Primary engineering standards and so forth, ANSI standards, are covered by the TIA standards, and there are several of those, and there are several more that are in the works, and what we've actually seen is that the incidents that we've seen, people were not following those standards, you know, but most of those are actually oriented more towards the actual design and stability of the structure and not as much towards how to maintain, rebuild, demolish the structure.
But it's a good point. We should take a look at the codes. There may be local codes that come into play, as well.
MR. STAFFORD: I don't know how you do this. I mean, how would you go about impacting or making a change or instituting a code working with ICC?
MR. MADDUX: I don't know. I never tried it before.
MR. STAFFORD: Yes, Don, and then Cindy.
MR. PRATT: Pete, you would submit a proposed code change that would then be reviewed by the building committee for ICC, and then it would go through a public hearing process, just -- very similar to what we do at OSHA.
MR. STAFFORD: Cindy.
MS. DePRATER: Cindy DePrater, employer rep. Mine is more of a comment along your line, Donald.
Any type of demolition should have a good engineering plan, and so, that probably should be part of the code to assure that an engineer stamps the demolition or redesign or maintenance so that there is a plan that can be followed which includes safety.
MR. MADDUX: Of course, the OSHA standards do require that engineering plan, and it's actually, in demolition, the most common citation that we have, is that people have not done the planning to do the work safely.
We're also continuing to work with the states. We've been providing engineering support.
Mohammed Ayub -- I think everybody on this panels knows -- has been out helping our field folks. He is not here today. He's actually in North Carolina helping to investigate a bridge collapse.
We also have tried to use media here. We've had several social media outreach things, trying to get the attention of the industry, done some news releases.
We developed a tower safety web page. Dr. Michaels did a speech, a video speech, to the National Association of Tower Erectors. We put that on the web page.
And we did something sort of interesting here. This is actually Dr. Michaels' idea. We put an email address directly on the web page so that people could send us information about tower safety if they had an interest in that.
And so, we did actually get, in the early days of it, several interesting emails and some interesting research on climber fatigue and how fatigue comes into play as an issue, not only in terms of having the endurance to actually climb the tower but then having enough oxygen going to your brain to then be able to do the work safely and capably. You know, I mean, this is very, very demanding work.
And we also heard from several victims' families and from people like that. We got a lot of good information. That's kind of shifted now. It seems to be mostly people who want to sell something, but that's the nature of the world.
We've also developed, I think, a very good relationship with NATE and other industry stakeholders who are helping us to get the word out. You know, when we have things to say, they're helping to get that to their memberships, and doing outreach.
We sent a letter to the companies -- the top 100 companies that own towers, trying to get their help in this matter.
In many cases, especially with these collapses, this is their property. You know, they need to be taking care of it, and they need to make sure that they know who is on it and what they're doing while they're on there.
And then, of course, David talked about the FCC workshop, which has been a wonderful collaboration to try and help get the carriers involved, as well, so that we're trying to get everybody in the chain here, from the people who use the towers, who are -- who are hanging their antennas on them, to the people who own the towers, to the people that work on the towers. So, you know, an across-the-board approach.
And of course, we issued our directive for accessing towers by hoist. This was an old directive. It deals, actually, just with the narrow issue of raising people on the tower using gin poles and hoisting devices.
There's actually -- the amount of activity that is going on like this is declining. The three largest tower owners are really, really controlling this activity.
Many of the incidents that we've seen, for example, on rigging are when they were rigging gin poles and other devices to try and be able to hoist antennas and so forth up to the tower, and so, the tower owners have figured out that this is a major problem on their towers, and they are implementing some very strict controls on the use of these devices.
A couple of fact sheets that we put out since the last time we spoke, on scaffolds, on tube-and-coupler scaffolds, on planning and design, and the other one on actually erection and use.
One of the things that we discovered a few years ago -- we were doing a review of all of our guidance products to see, you know, what should be retired, what should be fixed, what we needed to do new, and we discovered that we actually had very, very little guidance on scaffolds, and we know that scaffolds are a really serious problem.
You know, in the fall campaign, it's one of our major issues. We see a lot of scaffold violations when we're out doing inspections and so forth.
So, we're actually very happy to finally get out some additional guidance on scaffolds that will help people with this ongoing, day-to-day issue.
This is our demolition page that we put up. I just wanted to chat a little bit about demolition. Aside from the communication tower demolition incident that we saw out in Kansas, we are continuing to see a lot of demolition incidents.
This obviously came onto our radar screen in a very dramatic way in the Philadelphia collapse, where buildings were being torn down and a wall fell onto a Salvation Army thrift store, killing a couple of workers in that thrift store and some people shopping, horrific, horrific incident.
But we continue to see demolition problems. We've got to figure out some way to get the word out about having an engineering plan, about following the engineering plan, about doing demolition in a much smarter way than we're doing it now.
Unlike the communication tower folks, this is sort of a difficult industry to reach through outreach programs and so forth, because it's not just people that are classified in demolition NAICS codes that are doing demolition.
It's people in every construction code that are doing demolition. General contractors. You know, people in all -- you know, just general construction firms and so forth that are doing this work.
So, this is actually a collapse that just happened last weekend in New York, on Staten Island, where this gentleman was killed in a fatality. They were demolishing an old automobile dealership.
They built a new auto dealership, and they were taking down the old one, and the roof fell, killed this man and seriously injured four others, five days ago.
This was a November 5th collapse in Bristol, Pennsylvania. This was actually a historic structure that was being rebuilt, and so, as part of the rebuilding, they were changing the floor joists.
You cannot take out all of the floor joists and then start putting in new floor joist. They had taken too many floor joists out. It weakened the structure. It fell, killing one worker.
So, we're continuing to see these incidents just on an ongoing basis. It's just regular as clockwork, and so, we're trying to figure out how to do a little bit more in terms of getting some outreach on demolition.
MS. DAVIS: Jim, we work closely with our building permit offices throughout the state. I presume that large demolition projects need permits. Code probably differs from city to city.
We can disseminate information through our -- cause they have to give the permits. We could train our building permit --
MR. MADDUX: Absolutely. And that's one of the things that we saw as one of the follow-ups in Philadelphia, you know, where -- where the -- the incident earlier this year was really a dramatic thing for the city.
And you know, Philadelphia is a city where there is a lot of rehabilitation building going on right now, and a lot of demolition associated with that, and as part of that, we actually developed a much closer relationship with their building permit folks and with their building inspection folks.
And so, we've been doing a lot of referrals back and forth, one to the other, to try and make sure that, if we see something, we let them know, and vice versa, and we've had several incidents where -- I mean, you never know if the building would have fallen down or not, but we've had several interventions at demolition sites since then that may have saved somebody's life.
So, certainly, the local permitting, local inspection folks are key allies in this.
MS. DAVIS: So, we should bring this to the state public health programs that work with them. We have a meeting next week.
MR. MADDUX: You know, one of the things on our project list -- we refreshed our web page and did some work there, and then we're trying to work with the National Association of Counties, National League of Cities to get some targeted articles in some of their newsletters and so forth, to try and get to some of the city and county folks who also have some oversight responsibilities in this area, but as you said, the requirements vary pretty widely from state to state and city to city.
MR. STAFFORD: Just let me ask, Chuck or Steve, any issues in your states or how you deal with this in Kentucky or Tennessee, working with permit offices?
MR. HAWKINS: Steve Hawkins, state plan rep. Nothing but to echo what Jim said.
It seems like, at least in our relatively small state, we have a demolition fatality almost every year, and what Jim said -- Jim was extremely kind about who does this.
A lot of times it's somebody goes out and just hires three or four people and -- you know, everybody thinks they can tear something down. I mean, I specialized -- as a child, I could tear up lots of stuff. I never could put it back together, but I could tear it up.
And so, you think there's no expertise required, and there's really a great deal of expertise required, and so, I would just echo what Jim says. I mean, it's -- I wrote it down.
I think what Tish was saying, and Jim, if there was a way to integrate the engineering plan in the process of receiving a permit to demolish a structure, that would probably go a long way in -- and you know, you get ready to build a building, you submit plans, right? Always.
So, you know, it seems really logical. That might really be a possibility.
But we just see the same problems.
MR. STAFFORD: Thank you.
MR. BETHANCOURT: Jeremy Bethancourt, public rep.
I wonder, addressing it to Chuck and Steve, if that's something that might be brought up at OSHPA as maybe some way to -- to think about reaching out in the states to try and see if there's a way to get the building permit folks involved.
It's been my experience that building safety doesn't mean safety. It's completely absent, in fact, in many instances. So, I think that might be a good initiative for any of us, perhaps, to look into.
MR. HAWKINS: I think, when we give our report to OSHPA, we will certainly mention that.
MR. STAFFORD: Cindy?
MS. DePRATER: Cindy DePrater, employer rep.
This is really more of a comment. As you move forward with this, please assure you put some training and education in for whoever is going to be doing the inspections from OSHA, because it's one thing to inspect construction safety, as you say, but demolition is very, very different, and it takes a different set of eyes and expertise and knowledge to be able to understand how that building is coming down.
MR. MADDUX: Yeah, it really does. I've found myself, over the last year, you know, on the rare occasions when I actually see something that is being demolished, paying a little more attention to what's going on and making sure that I have the phone number of our local OSHA area office plugged into my telephone, and have made a couple of referrals myself where I saw some things going on that didn't look quite right to me.
MR. STAFFORD: There's got to be, I would imagine, a demolition contractors association.
MR. MADDUX: There is, yeah, and they've actually got some wonderful guidance products. We've been trying to initiate a conversation with them, but like I said, the problem is that they are such a tip of the iceberg of the demolition work that you're just not getting to probably the larger part of the problem.
Any efforts that people can make to try and get the word out, to get some changes on this demolition, I think, would just be huge for the industry.
So, shifting to something maybe a little less grim -- and that's the stand-down that Pete and Dr. Michaels were chatting about earlier. We had, I think, a wonderful report.
Jessica Bunting, on the CPWR staff, did a very nice analysis of our data that we picked up on the OSHA website from people getting certificates of recognition for participating in the stand-down, and that accounted for over three-quarters of a million workers that participated in the stand-down.
We know from the Air Force, from Bill Parsons, who is here today, that the Air Force has 650,000 workers who were involved in the stand-down, getting us up to almost 1 1/2 million, which is way, way beyond anything that we ever thought was possible with this kind of an outreach program.
So, we're just extremely pleased with how well it went this year. It definitely resonated with the public and with the construction community, and beyond that, we wound up -- in the weeks leading up to the stand-down, after we had announced it and we were starting to sort of put on our heavier publicity blitz and so forth, we had a couple of things that happened.
One of them was that we started getting a lot of phone calls from people who were asking, I'm not in construction, can I stand down, too, and of course, there was only one logical answer too that, was of course you can.
And so, we went into our little certificate page and added a category for industry that said I'm not in construction, realizing that that might be larger than what we had anticipated.
Then we started getting a few emails. We had set up the same thing -- we had set up an email box on the stand-down web-page and we started picking up some email chatter. I'm not in the United States, but I would like to stand down, is that okay?
We said of course it's okay, and so, we went into our drop-down box on the certificate page where we had all the states listed, and we put in another entry for not in the United States.
And so, it turned out that we had impact far beyond what we would imagine. We wound up, actually, with some 2 percent of the stand-downs were held overseas, and about a quarter of them were not in the construction sector at all.
So, impact not only in construction but beyond that hopefully will do a little bit of good in the world. Hundreds and hundreds of incidents, lots of publicity, you know, overall, really, really happy with how it went.
I know a lot of people in this room did things in their local areas. I know Tish and Jeremy and others did a lot. Steve and Chuck had some activities in their states, and I think -- I have yet to hear, actually, any sort of a complaint about this project.
I think it's the first one in my 25-year career with OSHA that I can say that about. Somebody is always upset with whatever it is that we're doing.
So, you know, it's gone so well that we plan on doing it again in the coming year, so in 2015, and you know, we would really like for everybody to come out and join us and work on this again. I think we learned a lot of lessons from last year's campaign to try and improve it and to do things even better.
People also had ideas in yesterday's workgroup where we were talking about this, and so, we're just trying to figure out how to make it bigger and better.
These are just some of the stand-down moments.
We wound up with a huge collection of photographs that people just spontaneously sent to us through the email drop box that we had set up and from our field folks that attended stand-downs and so forth, and they all kind of look like this, a bunch of people with hardhats and reflective vests.
So, you can pretend that that was your stand-down if you'd like.
And kind of an interesting development, you know, the stand-downs -- when people got certificates, they told us how many people were in their stand-down.
So, we don't know exactly how that relates to the size of the firm, but what we do know is that a lot of the certificates, almost half of them, were for stand-downs that had 25 or fewer workers, and I know, for example, I was at a stand-down at a residential site up in Silver Spring during that week that the homebuilder sponsored, and there were like 60 workers, I think, involved in that stand-down, and I believe 7 different contractors.
So, I think that while we can't really get a hard-and-fast number, it appears that the stand-down was able to get to some smaller employers that we've been trying to get to on this issue for years and years.
So, I'd be happy to answer any questions, anything you might have.
MR. STAFFORD: Thanks, Jim.
Chuck and then Kevin.
MR. STRIBLING: Good morning.
Just a follow-up on the stand-down. Has a date been set for the 2015 stand-down?
MR. MADDUX: Not yet. We're in discussion on that right now, and we're going to try and brief Dr. Michaels in the next couple of weeks to lock that in.
MR. STRIBLING: Thank you.
Of course, from our perspective, and with the other states, the sooner we know and can start making preparations, it helps a lot.
MR. MADDUX: Yeah. I think that that was one of the pluses last year, was that we did a lot of advance planning and talked to a lot of people way ahead of time so that when things started happening, you know, it was just a question of implementing the plan. It was ready to go.
MR. CANNON: Kevin Cannon, employer rep. Just a -- I have a follow-up question on your cranes update in regards to the type of capacity and qualification of operators.
As I understand it, you're saying that whatever is being developed, drafted, and proposed will be presented to ACCSH for comment and feedback, and you know, in regards to timing, you know, based on our schedule, I would say that might be springtime unless you convene a special ACCSH meeting, as you've done on crane issues in the past. So, what we're looking at is -- spring is --
MR. MADDUX: It would have to be sometime, I think, yeah, spring/summer next year that we would have to get moving.
MR. STAFFORD: Before you would be ready to come to ACCSH.
MR. MADDUX: I think it's possible that we could be coming to ACCSH in that timeframe.
MR. STAFFORD: Steve?
MR. HAWKINS: Jim, the slides that you had -- Steve Hawkins, state plan representative. The slide that you had about fatalities that we -- that are investigated or, you know, that occurred, rather -- have you ever seen any numbers or any data on how many of those OSHA actually has jurisdiction over?
MR. MADDUX: I do recall an incident -- an analysis of that years ago. You know, I think that we actually wind up -- wind up with coverage of somewhere around half, but I haven't done an analysis. We could do that fairly easily.
Really, pretty much, what you're doing is kind of taking the occupational fatalities and subtracting out over-the-road automobile incidents, which we rarely -- rarely look into, and homicides, which we have been a little more involved with some workplace violence issues but not very much. That gets you pretty close.
MR. HAWKINS: The self-employed would come out, as well.
MR. MADDUX: Yes. Yeah, cause the BLS data also includes self-employed on fatalities.
MR. HAWKINS: So, I looked at that for our state, and we weren't even at 50 percent. We were at about 35 to 40 the last 2 or 3 -- the last 3 years.
I looked at the last 3 years and worked with our local BLS person as much as he was able to from the confidentiality of the nature of collecting that data, and I just think it's interesting to note that, you know, we're somewhere around 40 percent, your, you know, seat-of-the-pants answer is about 50 percent, certainly in the ballpark.
That means there's a lot of people not -- a lot of fatalities.
I think people automatically see fatalities and look at -- at our agencies and say, well, you know, how are you affecting this, and if you take out automobile accidents, like you said, workplace violence and the self-employed, we have a lot of people still in non-state plan states. Public sector workers are not even covered.
So, you know, there's -- I think that's an interesting facet of the fatality gross numbers as well as the rates, is OSHA has, probably, jurisdiction over less than half of those.
MR. MADDUX: Yeah, I think that's a very legitimate point, you know, and it also really calls to the need to be thinking about things like automobile safety and, you know, what other agencies with more jurisdiction over those issues are doing.
I mean, there are a lot of things. There are things -- for example, the rulemaking by the National Highway Transportation Safety Administration earlier this year to require backup cameras on all light vehicles, you know, 10,000 pounds gross vehicle weight or less, I think, has huge implications for workplace safety.
MR. HAWKINS: I think so, too.
We had two fatalities on a single jobsite on two different occasions by being backed over, and in both cases -- I've shared this with our workers before -- both cases had backup alarms, functional backup alarms, and the events -- the fatalities still occurred.
So, the backup cameras make a huge difference.
The other thing on those -- on those numbers and jurisdictions, we still have the farm exemption for, you know, funding from Congress with less than 10 -- 10 or fewer workers, are not actually covered by our standards either, and that's some pretty hazardous work.
I think maybe the states can lead the change there with state funding, possibly, but that's another pretty big hole in our coverage.
MR. MADDUX: It is a big hole in coverage. We're also seeing increased issues -- aside from the small farm exemption, there's also an exemption from programmed inspections for employers that are in NAICS codes where the injury rate is less than half of the national average, and we're encountering more and more frequently on our inspections construction employers who fall into that category.
And they are typically general contractors, and so, what we're winding up with is that our program inspections cannot -- cannot include the general contractor, who probably bears the greatest responsibility for maintaining safety and health conditions across the site.
MR. HAWKINS: And what they actually do onsite varies greatly. Some general contractors may have two people onsite and exercising oversight. Others -- they have a pretty big workforce there actually doing some work.
So, then you're kind of -- well, are they 1542 or, you know, what are they, exactly?
MR. MADDUX: Getting the right code is always a challenge.
MR. STAFFORD: Tish Davis.
MS. DAVIS: Yeah. I just want to report -- we actually publish this data every year -- and OSHA reviews every case with us, and it's about 34 percent. We've published this since 1991, the percent of fatalities investigated by OSHA.
You've got to exclude, in Massachusetts, the public sector workers, the self-employed, Federal aviation, railroad workers, fishermen at sea.
I mean, there's a whole series of things that you need to exclude that are clearly outside of jurisdiction, and then you get into the on-the-road traffic safety and homicide, which are not entirely outside of OSHA jurisdiction.
It's just that OSHA doesn't take the lead, historically, in investigating those.
MR. MADDUX: I always look at that number so intently, and then you realize you only have the ability to affect about 35 percent of that number, and it takes a little wind out of your sail, frankly. You'd like to have more tools to affect that number in a larger way.
MS. DAVIS: You know, the self-employed is really outside of everyone's jurisdiction, but from a public health perspective, a lot of the information that we generate, for example, on falls, a lot of those falls in self-employment. So, from a public health perspective, it's really important to reach that community, as well.
MR. MADDUX: We see a fair number of construction incidents that fall outside of our jurisdiction, trenching incidents where it's a self-employed individual falls, demolition. It's very common.
MR. STAFFORD: Palmer?
MR. HICKMAN: Thank you, Pete. Palmer Hickman, employee representative with the IBW.
Jim, I just wanted to double back one more time, follow up on Kevin's question.
For the crane operator certification, as I understand it, there's two big questions. I want to make sure there's nothing more than I'm not aware of that you're going to try to accomplish.
Certainly, does certified equal qualified, or what role will certified have in qualification, and the second is, I think, the question that Kevin asked, was type and capacity -- will those both be required? Is there anything else besides those two larger questions?
MR. MADDUX: I think that there's actually a very large question about whether or not the standard should have more explicit training requirements, you know, and you know, I mean, if you look, for example, at powered industrial trucks and the training requirements that we have for forklifts and other types of construction equipment, why would you have any fewer training requirements for crane operators?
MR. STAFFORD: Any other questions or comments?
MR. STAFFORD: Mr. Maddux, thank you.
MR. STAFFORD: Let's take our break. We'll reconvene at 10:30.
MR. STAFFORD: We'll go ahead and call the meeting back to order, please.
For ACCSH members and the public, there has been information -- Dr. Michaels is good to the words. There's been information passed out on the new BLS data that's on the table, and I think, for the folks in the audience, there's copies in the back for your interest.
Lisa, I think, probably, we would have to put this in the exhibit for the meeting.
MS. WILSON: Thank you. Yes, I'd like to designate the slides from the Directorate of Construction updates as Exhibit 5 and the BLS news release with the injury and illness data as Exhibit 6. Thank you.
MR. STAFFORD: Thank you, Lisa.
I'd like to remind again those folks in the public that have come in later, since the meeting started, if you're interested in making public comments, please sign up. There's a signup sheet in the back of the room.
Typically, we try to carve out the last half-hour or so, depending on how we can get through the agenda, for public comment, and we welcome folks to comment at that time.
Dr. Schaeffer, it's a pleasure to see you, and thank you very much for being here with us.
Our next issue -- we have three issues that we're going to try to get through this morning that OSHA has asked us to take a look at with respect to proposed rules.
The first one is on quantitative fit testing protocol and the respiratory standard. The ACCSH has been provided briefing materials, Dr. Schaeffer, about the proposal and what you plan on doing.
So, this is not totally in the dark to us, but we appreciate you being here and your presentation, and thank you. The floor is yours.
NEW QUANTITATIVE FIT TESTING PROTOCOL: AMENDMENT TO THE FINAL RULE ON RESPIRATORY PROTECTION
DR. SCHAEFFER: Thank you for that introduction. Since you do have the materials, I'll -- I plan to be brief and move through the slides quickly.
By way of background, OSHA's respiratory protection standard was promulgated in 1998 and requires employers to establish and maintain a respiratory protection program to protect workers wearing respirators.
The standard is wide ranging and covers a lot of provisions, but the focus here is on the requirement that employees must be fit tested prior to wearing tight-fitting respirators, and the fit test must be administered using a OSHA-accepted fit test protocol.
The respiratory protection standard recognizes that improved fit test methods would likely be developed in the future and has mandatory -- has a mandatory Appendix A, Part 2, that outlines the procedure that allows individuals to submit new fit test protocols for a notice in proposed -- notice and comment rulemaking under Section 67 of the OSH Act.
The new test protocol applications must be supported by either a dependent government research laboratory or a publication in a peer-reviewed industrial hygiene journal verifying the protocol's accuracy and reliability.
So, OSHA has already -- has several accepted fit test protocols, including a PortaCount protocol that can quantitatively measure the amount of ambient aerosol that leaks across the respirator face piece.
TSI, Incorporated, which is a major manufacturer of real-time particle monitors for fit testing, submitted three new fit test protocols: a fast full method for elastomeric full face piece respirators, a fast half method for elastomeric half mask respirators, and a fast FFR for filtering face piece respirators.
The TSI's application included three articles that were published in the Journal of International Society for Respiratory Protection, which describes the protocols and explains how the test data support the protocol's accuracy and reliability.
MR. STAFFORD: Is fast an acronym or -- I'm sorry. I missed your slide. Is it an acronym for something, or does it just mean it's fast?
DR. SCHAEFFER: Fast means that -- that the protocol is -- is shorter than the existing protocol. They've reduced the -- the test duration, and therefore, they call it fast, and I'll get to in a minute how they've done that, in a couple of slides.
So, they've submitted -- so, as I was saying, the -- the TSI's 2014 application included three articles that were published in the Journal of International Society for Respiratory Protection, which described the test data support the protocol's accuracy and reliability.
The next slide -- so, here, I think it explains the fast part.
So, the existing OSHA-approved PortaCount protocol has a standard set of seven exercises, calls for a series of fit factor measurements, and sets a minimum fit factor pass/fail value.
The new TSI protocols differ from the existing protocol in two ways.
One, it has -- it includes only four test exercises instead of seven, and secondly, it reduces the exercise duration from 60 seconds to 30 seconds, thereby reducing the total test duration time from 7 -- a little over 7 minutes to 2 1/2 minutes.
So, that's the -- that's the reason, I think, for the fast part of this.
Anyway, the benefit, of course, is that the reduced test duration will result in a reduction of fit testing burden on the industry.
MR. ERICKSON: Roger Erickson, employee rep.
Did you say four exercises? I see here on the printout, it's three exercises.
DR. SCHAEFFER: So, three of the exercises are ones that already -- they've added a jogging in place to make four.
So, all of these methods have the four exercises, and all of the methods reduce the exercise duration of each exercise from 60 seconds to 30 seconds.
Here's the fast half method. It uses the same exercises and exercise duration as the fast full method.
The next slide shows the -- just quickly -- shows the fast FFR method, and it differs from the fast full and the fast half by including a slightly differently set of exercises, but again, it achieves the same total test duration reduction from 7.2 to 2.5 minutes.
So, TSI used the sequential paired test approach recommended in the ANSI Z8810-2010 annex, criteria for evaluating new fit test methods.
This scientifically accepted method, developed by the American Industrial Hygiene Association, allows the performance of the modified PortaCount protocols to be compared to a selected reference method in the same respiratory donning session with the same individuals.
TSI selected the OSHA-accepted PortaCount protocol minus the grimace exercise for the reference comparison for their study.
According to the statistical procedures utilized in the study, TSI found all three modified protocols met the required acceptance criteria.
For test sensitivity, that's the false positive rate, predicted value of a pass, predicted value of a fail, test specificity -- that refers to the false negative rate -- and kappa statistic was just an overall statistical measure of how well the two methods agreed.
Next slide shows how the modified protocols compare to the ANSI criteria for the four statistical criteria.
As you can see, all the protocols fairly convincingly exceeded the AIHA criteria, indicating that faster methods are at least as effective as the reference methods in these studies.
So, this is not the first time that TSI has submitted a new PortaCount fit test protocol under Appendix A. TSI submitted two previous PortaCount quantitative fit test protocols to OSHA in July 2006. OSHA initiated a notice of proposed rulemaking, soliciting public comments on the protocols.
OSHA concluded that the protocols were not sufficiently accurate or reliable to include among the OSHA-accepted protocols. As a result, the proposed rulemaking was withdrawn in January 2010.
In their new proposed protocols, TSI appears to address some of the deficiencies in their previous application.
So, what is the agency position?
We believe that the TSI application meets the criteria outlined in Appendix A, Part 2, to initiate a rulemaking under Section 6(b)(7) of the OSH Act. OSHA plans to initiate a notice of proposed rulemaking and ask for public comment, as required by the respiratory protection standard.
Some of the key issues will be whether the proposed protocols reliably identify respirators with an unacceptable fit, whether the TSI study is appropriately conducted according to accepted experimental design, and the results appropriately interpreted, did TSI choose an appropriate set of test exercised for their modified protocols, were the bases of the selection adequately explained?
Our staff is still examining the TSI studies and beginning to prepare the notice of proposed rulemaking. Our scheduled target is to have the notice of proposed rulemaking ready by March 2015.
We plan to seek assistance in reviewing the TSI studies by our Federal partners, especially NIOSH, and as required under agency statute, OSHA is seeking a recommendation from the committee to proceed with notice and comment rulemaking under Section 6(b)(7) of the OSH Act in order to seek public comment on incorporating the modified fit test protocols into Appendix A of the respiratory protection standard.
Thank you for your attention, and I will take questions.
MR. STAFFORD: Are there any questions or comments?
Let's start with Tish and we'll work our way around.
Please, Tish, go ahead.
MS. DAVIS: Yeah, I just have one question. You mentioned NIOSH, cause I know they have a whole respiratory protection program. Have they been consulted on this?
DR. SCHAEFFER: Not at this point. But certainly, as we proceed through the TSI submissions, we certainly plan to engage NIOSH. They have a national personal protection -- NPPTL -- and we have, you know, good rapport with that group and certainly plan to engage them.
MR. STAFFORD: Thank you.
MR. CANNON: One question. This proposal would just add three new options, and the existing option would remain in place?
DR. SCHAEFFER: Yes, I should have made that clear.
So, this is not to replace the existing OSHA-accepted PortaCount protocol; it's to add these three additional -- if approved, it would add these three additional -- three additional protocols. Thank you for that.
MR. STAFFORD: Dr. Schaeffer, as I understand it, this is all about making it faster versus the quality of the protocol itself in terms of the testing of respirators for workers.
DR. SCHAEFFER: You have it right. This is about making the test protocol more efficient by -- by reducing the amount of exercise and times, but without -- the intent is, of course, without sacrificing reliability and accuracy of the method.
We will have to evaluate whether they were able to demonstrate that and seek public comment from the public on whether they were able to demonstrate that.
MR. STAFFORD: Chuck.
MR. STRIBLING: The prior effort -- did it get to the point where there was -- you went into the rulemaking process and you took your public comment and then had to withdraw it, correct?
DR. SCHAEFFER: Yes. I wasn't around during that time, but yes, that's how I understand it.
MR. STRIBLING: So, if I understand it right, the agency still needs to read through everything they've submitted and come to a determination, and you still need to do that with NIOSH, as well. Are you going to do that with NIOSH?
DR. SCHAEFFER: There's kind of two steps to this.
The way the standard is written, as I understand it, this Appendix A, step one is to make a determination whether they've followed the requirements of this Appendix Part 2, which means that they submitted to us a protocol that had been either developed by a testing laboratory or, in this case, published in a peer-reviewed journal and therefore had been peer-reviewed for scientific quality, and that the results of that study showed that it met some accuracy and reliability relative to the existing -- at least as effective as the existing -- that's number one, and then, if they've met that, then we go -- we are obligated to go forward with a notice of proposed rulemaking.
We then collect public comments, okay? And then we review those public comments. I think we'll consult NIOSH before we go forward, but we'll consult them afterwards, too. I'm sure they will submit comments.
And at that point, we go through an evaluation of whether we feel the new protocols meet the necessary -- are sufficient to include and approve.
Does that help explain the process?
MR. STAFFORD: Christine and then Don.
DR. BRANCHE: Christine Branche, Federal representative, NIOSH.
NIOSH's staff of the National Personal Protective Technology Lab is very familiar not only with the original protocol that was submitted by this particular organization but familiar, as well, with this package that we were sent for review.
NIOSH commends the proposed approach that OSHA wants to take on this, including publishing this in the Federal Register, the notice of proposed rulemaking, and we are looking forward to working with OSHA in this. We really do hope that you will approach our NPPTL lab to participate and review this with you.
So, NIOSH is supportive of this particular approach.
But I think basically the point -- I see a lot of quizzical looks. The idea is to see if -- if this particular test developer has proposed something that is -- the new test method -- we need to assure that it's no less discriminating in rejecting respirators not achieving a good fit than the existing test.
So, it has to be as good as what's out there now. What's out there now will still be available, and this would be an additional option, but this particular protocol has to be examined to make certain that it will meet at least the standard that's there now.
DR. SCHAEFFER: Thank you for that.
One of the key issues, as DR. BRANCHE mentioned, is the test sensitivity. So, this method -- we don't want this method to pass a test that would have failed the existing one.
So, that's a very important -- test sensitivity is a very important issue here that we want to be sure that this method meets.
MR. STAFFORD: I appreciate that.
Don and then Cindy and then Jerry.
MR. PRATT: Don Pratt, employer rep.
Dr. Schaeffer, I'm just curious on if you can tell this committee what is your timeframe? Best/worst scenario that you can come up with. What are we looking for in the near future?
DR. SCHAEFFER: Best scenario, I think, is to meet the timeline that we have, and that is to have an -- be able to have a notice of proposed rulemaking available and on the street in March 2015. That, I believe, is the date that's in the current regulatory agenda.
In order to do that, of course, we will have to develop the NPRM. We'll have to get it through internal agency review. We'll have to also put it up for review by the Office of Management and Budget, OMB, and get it through that.
That's, I think, a challenging timeframe, and we're hoping to achieve that.
Did that help answer your question? The challenge is next spring.
MR. STAFFORD: Okay. Appreciate that.
MS. DePRATER: Cindy DePrater, employer rep.
Dr. Schaeffer, if the new fit test protocols were approved -- let's just jump ahead to approval -- and confirmed, and they are in addition to the original rules, who makes the determination on which ones to use and what guidelines would there be for when you can use the fast fit protocols?
DR. SCHAEFFER: I believe -- I'm fairly sure, once it's approved by the agency, it becomes a test protocol that's available to the employer to use.
The test methods already, I believe -- and I'll have to -- I'll have to look further into the actual test -- already make it clear the type of respirators that they would apply to.
So, we have a method for the full face piece. We have a method for a half face piece. We have a method for the filtering face piece.
So, right there, it specifies the kind of respirator that any particular protocol would address, but I think that's a good question, and I think we'll have to make clear what -- just exactly what respirators would be -- which protocol would be applied to which respirators.
I think that's a very good observation.
MR. STAFFORD: Thank you, Cindy.
DR. SCHAEFFER: Thank you very much for that.
MR. STAFFORD: Jerry?
MR. RIVERA: Yes, this is Jerry, employer rep.
I guess what I'm confused with is that we want to get -- you guys want to get the support of -- to put out in the proposed rulemaking, but based on the questions that have been asked, and the responses, it seems like the intent of the notice of proposed rulemaking is to find out if these test methods confirm if they do work, indeed, or are as effective in -- I don't know. There's a lot of confusion on how to use them, what respirators would it apply to.
So, I don't know. I guess maybe I'm thinking maybe you should talk to NIOSH now, you know, instead of putting this out to kind of scout for that information, because it's going to create more confusion.
DR. SCHAEFFER: That's the plan. The plan is to consult NIOSH. I think we want, ourselves, OSHA wants to get our arms around the method itself, and understand it, before we go to NIOSH.
MR. STAFFORD: I appreciate the comment, but we're trying to understand the order, Dr. Schaeffer.
It seems that if you're asking -- and that's what the agency is asking us -- to make a recommendation to proceed with a notice of proposed rule before talking to NIOSH, then we're recommending to proceed without knowing the benefit of having any idea what NIOSH has to say or not about the efficacy of this new protocol.
So, it's an issue of timing, and I'm struggling with what it is exactly -- why it is that NIOSH hasn't already been engaged if you're asking to proceed with the proposed rule.
DR. SCHAEFFER: I'll try to answer that. So, we got the protocol in July 2014, just recently, not that long ago.
We have -- we ourselves have to -- have to evaluate the -- would like to evaluate the protocol before we engage NIOSH so we can be able to talk -- both agencies talk -- both have a clear understanding.
MR. STAFFORD: This may be my ignorance, and I'm thick -- why can't OSHA and NIOSH do an evaluation before you come and ask us to recommend that you proceed with the proposed rule?
DR. SCHAEFFER: Well, I thought this was an opportunity -- December -- I don't know how often this committee meets, but we felt this was an opportunity to consult you now.
I don't know when the next meeting would be, and whether it would be before we went forward with the notice of proposed rulemaking. I guess that would be my answer.
MS. WILSON: Dr. Schaeffer, Lisa Wilson, ACCSH counsel.
I think some of the confusion may be that the process for approving these fit protocols and the regulatory process is somewhat different than OSHA's usual standards. As I understand it, you are required in your appendix, if a submitted protocol meets the criteria, just facially meets them, then you -- you are obligated to publish the proposed rulemaking --
DR. SCHAEFFER: That's correct.
MS. WILSON: -- and so, then -- so, you must do that sooner than OSHA normally would in a regulatory process, and then does further evaluation with the public comment after the proposal is published.
MR. STAFFORD: Christine.
DR. BRANCHE: Dr. Branche, NIOSH.
So, thank you, Ms. Wilson, for clarifying that, and I would say that, given that there is a different order than what you're accustomed to, I will say, also, that based on my consultation with the staff at NPPTL, I believe that when OSHA formally approaches NIOSH to review the information and consult together, I expect that that process will be -- will proceed quickly and within the timeframe.
The only thing I want to make sure that I mention is that, in the notice for proposed rulemaking, that it's very clear to any reader that OSHA would want to get feedback from workers, employers, and industrial hygienists, so that even though the decision in the field would be up to the employer, that there is sufficient information from all potential audiences as to how they've been behaving with this particular protocol.
DR. SCHAEFFER: I appreciate that, and I would agree.
MR. STAFFORD: Jeremy?
MR. BETHANCOURT: So, let me see if I understand. Forgive me for having to think in lay terms, but you're asking us to provide a recommendation based on that we don't quite know whether or not the protocols are going to work correctly and you have to interact with NIOSH with that first?
DR. BRANCHE: Dr. Branche again.
Dr. Schaeffer provided in his review that there was an earlier effort when TSI submitted a protocol earlier that OSHA had gone through this same procedure, and as they assessed, including getting comments from the public, withdrew it, and so, I think what we've seen is that OSHA's methodology is sufficient -- it works -- so that if they find deficiencies or if you -- if, in the opportunity for the public to comment, there are deficiencies, they would withdraw it again.
DR. SCHAEFFER: Could I say something? I think, to add on that, what we really need to determine right now -- like I said, it was two processes -- whether the submitter met the procedure that's laid out in the respiratory protection standard, in Appendix A, and that is, have they had their protocol published in a peer-reviewed journal, so it has received some -- some review there, and whether they met the well-established criteria for reliability and accuracy, and they clearly have based on the results they presented in those publications.
So, it already has begun to be -- OSHA would not be coming to you if those steps had not been done.
MR. BETHANCOURT: So, then, now it is appropriate for us to say, okay, go to this next step.
DR. SCHAEFFER: We're asking whether we can go to this next step.
MR. STAFFORD: Palmer and then Tish.
MR. HICKMAN: Thank you.
Palmer Hickman, employee representative.
I think maybe at first people would seem to think OSHA is endorsing this by the fact they're putting it out for proposed rulemaking.
I think that's what OSHA would expect. They would want the rule to go through if they put it out for public rulemaking, but your comments here in the slide, if we can take them as accurate, is to seek public comments.
We do this in the National Electric Code many times. We'll put it out for public comment so we get comment back.
We don't actually intend it ever to go into the code. But this process is not the same. We are going to get feedback.
So, I think that's what we're getting asked to do, is to take it to the next step. They have met the threshold for what they need to do. I hate to say this is just a formality, but you know, OSHA clearly has brought it to us.
This is the time to take it to the next step. They have to bring it to us -- not that we're rubberstamping it. We are endorsing getting comments on this from the public, not endorsing the rule as it stands.
DR. SCHAEFFER: I appreciate your confusion, because like Ms. Wilson said, it's not our normal -- this is -- normally when we -- I know in other areas, we usually go forward with a notice of proposed rulemaking once we've made some determinations.
This is a little different. This is, you know, a notice of -- notice for public comment, and it's -- really, we're following what had already been laid out for us in the respiratory protection standard, and that's what's, I think, a little confusing.
MR. STAFFORD: We're not as confused as we normally are.
So, let's go with Tish and then Chuck, and then we're going to wrap this discussion up.
MS. DAVIS: My understanding, based on what Lisa said, is that you actually -- this is the necessary next step -- obligated to go forward with this next step and that we have the opportunity to get input from NIOSH, your experts, and the public experts prior to any decision-making. So, I would move in favor of it.
MR. STAFFORD: Okay. Thank you.
MR. STRIBLING: I'm not going to beat a dead horse, but I was thinking the same thing, Jeremy. Well, why don't you do your homework first, cause it doesn't look like they've done their homework, but the agency is compelled by the appendix to initiate the rulemaking process.
So, with that being said, I would recommend that the committee make such a recommendation to proceed.
MR. STAFFORD: Okay. Let's put that, then, in the form of a motion so we could take action on it. So, would you do that, Chuck?
MR. STRIBLING: So moved. I would recommend that the committee --
MR. STAFFORD: -- make a motion --
MR. STRIBLING: -- for the agency to proceed with the rulemaking.
MR. STAFFORD: For the notice of proposed rule. Okay. The motion has been made. Do we have a second?
Lisa, you can figure out who seconded that.
So, it's been moved and seconded. All those in favor, signify by saying aye.
(Chorus of ayes.)
MR. STAFFORD: Any opposed?
MR. STAFFORD: Dr. Schaeffer, thank you.
DR. SCHAEFFER: Thank you.
MR. STAFFORD: We've accomplished what you've asked us to do. It was a little complicated to get there, but --
DR. SCHAEFFER: I'm very impressed.
MR. STAFFORD: I appreciate you being here. Thank you very much.
Do we have Lisa Wilson in the house and Dayton Eckerson?
The next item on the agenda -- again, we were provided -- the committee was provided a table to look at with respect to what OSHA is asking us with coke emissions.
Lisa, go ahead, please.
REMOVAL OF COKE OVEN EMISSIONS CONSTRUCTION STANDARD IN STANDARDS IMPROVEMENT PROJECT IV RULEMAKING
MS. WILSON: Thank you.
Just before I start, I'd like to designate the slides on the fit testing protocols as Exhibit 7 and the memo you received on that topic as Exhibit 8, and then I will talk to you for a second not as the ACCSH counsel but as an attorney working with OSHA on this rulemaking related to coke ovens.
So, this coke oven proposal is part of the Standards Improvement Project.
For the new members of the committee, Standards Improvement Project is a notice and comment rulemaking that OSHA does, but it's really a collection of small-scale improvements to several different rules, and the current proposal is Standard Improvement Project Phase IV.
OSHA has done three versions of this previously, and most of the other provisions that will be in the rule have been before this committee previously, and so, this is a final item that we are bringing to the committee for recommendation today, and it's on the coke oven emissions.
You know, coke oven emissions are a hazardous thing, and there's a very important general industry standard regulating this, and the current construction standard refers to the general industry standard.
However, the general industry standard really doesn't fit construction work. It's really just not applicable in construction.
You know, the standard has a lot of engineering and administrative controls, and then it really regulates what's called the regulated area. That regulated area is very limited to, really, the coke battery and its equipment itself. It doesn't cover, really, even the area around it, it's just the equipment, and OSHA has said that -- in a previous interpretation issued in the '70s, which was when the original standard was issued, that even just walking past coke ovens does not fall under the provisions of the regulated area.
So, you have to be actually doing -- operating the coke ovens to be covered, and anyone actually operating a coke oven would be doing general industry work and so wouldn't be covered by the construction standard.
This is an issue -- this is kind of an existing standard that's really un-applicable, but attached to the short presentation we get, it was an interpretation OSHA issued back in 1999.
It was signed by the then-assistant secretary stating that the construction coke emissions standard is invalid and would be deleted from the Code of Federal Regulations.
So, OSHA has looked back. There have not -- obviously, because of this -- there haven't been any citations issued under the construction rule since 1997.
There were actually a couple issued in the '90s, shortly after this was added to the construction rules. I don't know the circumstances of that, but it hasn't happened in over 15 years.
So, just as a matter of cleaning up this, you know, outstanding commitment to delete this provision, we've proposed to actually go ahead and delete the coke oven provision now, and it's not going to be any reduction in protection to any employees, because it's not actually protecting, you know, construction employees right now.
MR. STAFFORD: Jeremy?
MR. BETHANCOURT: So, if I understand this right, OSHA is actually going to reduce a regulation that currently is on the books, right? They're going to remove a regulation, right?
I just wanted to say that in public comment, just to have that written there, that we're removing a regulation. Of course, it's not needed.
MS. WILSON: Yes, we would be removing a requirement from the construction standards, right.
MR. STAFFORD: Any other questions or comments?
MR. STAFFORD: So, I guess the question, then, Lisa, is you're asking for a recommendation to include this as part of SIP IV.
MS. WILSON: Yes.
MR. STAFFORD: Okay.
MR. BETHANCOURT: I'd like to make a motion to remove this particular standard from the 1926 standard as written, remove the 1926 1129 coke oven emissions from the construction standard.
MR. STAFFORD: A motion has been made. Do we have a second?
MR. ERICKSON: Second.
MR. STAFFORD: A motion has been made and seconded.
All those in favor, signify by saying aye.
(Chorus of ayes.)
MR. STAFFORD: Any opposed?
MR. STAFFORD: The next issue is the clarification of employer obligation for record keeping. Dr. Michaels mentioned this issue in this comments this morning.
Who do we have here? Lauren and Heather from the Office of the Solicitor. Welcome. Thank you very much. It's nice to have you here. We've been provided the briefing documentation and the background, so we know what you're doing and why it is that you would like to do it, and I think it's clear, and again, this is a question for this committee after your presentation on a recommendation whether you should proceed with the amendment of the record keeping standard or not, so we understand that, and so, with that, I'd like to turn it over to you.
CLARIFICATION OF EMPLOYER'S CONTINUING OBLIGATION TO MAKE AND MAINTAIN ACCURATE RECORDS OF EACH RECORDABLE INJURY AND ILLNESS
MS. GOODMAN: Good morning. My name is Lauren Goodman. I'm a senior attorney in the Division of Occupational Safety and Health in the Solicitor's Office, and this is Heather Phillips. She is our acting deputy, as well as one of our counsels for appellate litigation.
You know, as Dr. Michaels, I believe, noted this morning, complete and accurate injury and illness records serve a very important role in assuring the health and safety of American workers.
OSHA records are designed to be used by employers, employees, as well as the government, so that they can learn about the injuries and illnesses that are occurring in American workplaces.
Accurate records enable employers to identify and then correct hazardous conditions in their workplaces.
They allow employees to learn about the hazards they face where they work, and they also permit the government to determine where and why injuries and illnesses are occurring so that appropriate regulatory or enforcement measures can be taken.
The proposed rulemaking is designed to ensure that employers are maintaining complete and accurate records of the illnesses and injuries occurring in their workplaces, and as I'll discuss in more detail, the proposed rule simply clarifies OSHA's longstanding position about employers' duty to record.
The rule would not add any new compliance obligations and would not require employers to make records of any injuries or illnesses for which records are not already required.
I'd like to start with just a little background about the record keeping rules. OSHA issues the first record keeping regulations at Part 1904 in 1971, and in 2001, OSHA made significant revisions to the regulations in an effort to improve the quality of injury and illness records by making OSHA's record keeping system easier to use and easier to understand.
The record keeping regulations require employers to record information about certain injuries and illnesses occurring in their workplaces and to make that information available to employees, employee representatives, and to the government, namely OSHA and the Bureau of Labor Statistics
Each recordable injury or illness must be recorded on what's called the OSHA log or the OSHA 300 form, and for each case recorded on the OSHA log, the employer must also prepare what's called a incident report form or a 301 form that contains additional detail about each case on the log.
Employers have to retain both the OSHA log as well as the incident report forms for a period of five years following the end of the calendar year that those materials cover.
At the end of each calendar year, the employer must review the 300 log to ensure that the entries on the log are complete and accurate, and at that time, the employer must correct any deficiencies identified in the log.
Also at the end of each year, the employer must create, post, and certify an annual summary of the cases listed on the 300 log.
The existing regulations state that, during the five-year record retention period, the 300 log must be updated to include newly discovered recordable cases, as well as to show changes to either the classification, description, or outcome of cases that have previously been recorded.
The regulations do not require employers to update either the annual summary or incident report forms.
So, why do we need to do a rulemaking?
OSHA's longstanding position has been that an employer's duty to record an injury or illness continues for the full duration of the five-year record retention period; in other words, for five years after the end of the calendar year in which the injury or illness first became recordable.
This means that if an employer initially fails to record a recordable case, the employer still has an ongoing duty to record that case. The obligation to record does not expire simply because the employer failed to record the case when first required to do so.
The review commission has consistently upheld OSHA's position in that regard.
In 1993, the commission issued two decisions, General Dynamics and Johnson Controls, both standing for the proposition that a citeable record keeping violation exists at any point during the five-year retention period when the employer's records are incomplete or inaccurate, and more recently, in 2011, the commission again upheld OSHA's position on the continuing nature of record keeping requirement.
Now, in that recent case, the employer appealed the commission's decision to the D.C. Circuit, and on April 6, 2012, the Circuit Court issued a decision reversing the commission's longstanding precedent and rejecting OSHA's position about the continuing nature of record keeping obligations.
That decision, which we refer to as the Volks case, has led to a need for OSHA to revise the record keeping regulations to more clearly state the agency's position with respect to employers' obligations.
Specifically, the goal of the proposal is to clarify that the duty to make and maintain accurate records of work-related injuries and illnesses is an ongoing obligation.
With respect to the content of the proposed rule, OSHA would amend the record keeping regulations of part 1904 to clarify that employers have a continuing obligation to make and maintain records of all recordable injuries and illnesses.
It would also clarify that that obligation continues for as long as the employer is required to keep records for the year in question, and it does not expire if the employer fails to create a record when first required to do so.
This clarification would be consistent with decades-long OSHA policy and would be consistent with the way employers understood the record keeping regulations prior to the court's decision in Volks.
The proposal is not meant to impose any new or additional obligations on employers covered by Part 1904, and as I think I stated earlier, the proposal would not require employers to make records of any injuries or illnesses for which records are not currently required.
The proposed rule would clarify with respect to the 300 log specifically that employers must record every recordable injury or illness on the log and that that obligation continues throughout the retention period, and would also clarify the employer's duty to update the log by adding newly discovered cases and by showing changes to previously recorded cases.
With respect to the 301 incident report forms, the rule would clarify that employers have to prepare a 301 form for each new recordable illness or injury, and that that obligation, too, continues for the duration of the retention period.
The rule would also clarify that employers are not required to update 301 forms to show changes to any cases that have previously been recorded on those incident report forms.
And finally, with respect to the year-end records review and the annual summary, the rule would clarify that those tasks must be performed at particular times of each year and that those are not continuing obligations.
I believe the memo we prepared for the committee detailed all of the very specific revisions that we are intending to make. I'm not going to go over them again. I'm happy to take questions on them from the committee.
With respect to the burden of this proposal, the agency does not believe that the proposal would impose any new cost burden on employers.
It simply reiterates and clarifies what are existing obligations.
It would not require employers to record any cases that they do not already have to record, and the costs for all of these record keeping obligations were assessed in the economic analysis contained in the 2001 rulemaking.
The agency did a supplemental analysis making some conservative assumptions even if the rule -- you know, the agency does not expect this to result in the recording of any new cases.
If it does, even using very conservative assumptions, the agency doesn't expect costs of more than 2.2 million per year across all affected employers.
So, in conclusion, we are here to request a recommendation from the committee as to whether the agency should proceed with the proposed amendments to the record keeping regulations.
I'm happy to take questions.
MR. STAFFORD: Thank you, Heather.
Let's start with Christine.
DR. BRANCHE: Christine Branche, Federal rep, NIOSH.
Ms. Goodman, is it my understanding that, with what -- with the proposed action by OSHA, it would address the comments that occurred in court in the reversal? I don't speak legalese, so -- by virtue of these changes, would you be addressing the issues that came up in the Volks case with the -- with -- when the -- when the court rejected OSHA's argument?
MS. GOODMAN: The idea is to lend clarity where we believe clarity was needed as a result of the Volks decision.
DR. BRANCHE: Specifically that.
MS. GOODMAN: Yes.
MR. STAFFORD: I'm going to rephrase that in just a bit different way, and I don't want to get into the legalities of this, but in the end of the day, the Volks decision determined that employers' recording obligation was what?
MS. GOODMAN: The Volks decision -- you're more familiar with the case than I am.
MS. PHILLIPS: Well, there's always the same recording obligation. It's just a matter of at what point in time OSHA could cite for a violation, a reporting violation.
MR. STAFFORD: I see.
MS. PHILLIPS: The record obligations remain the same. Even after the Volks decision, all employers need to record the specified injuries and illnesses, regardless. So, that had no impact on that obligation.
MR. STAFFORD: All right. Thank you.
MS. PHILLIPS: Hopefully that answered your question. So, it simply affected when OSHA could cite.
DR. BRANCHE: Christine Branche, NIOSH.
So, what changed or what did this court's decision -- how did it affect the timeframe for OSHA to cite?
MS. PHILLIPS: That OSHA could cite within six months of when the obligation arose.
MR. STAFFORD: All right. Kevin and then Tom.
MR. CANNON: Kevin Cannon, employer rep.
So, to help me better understand, I have a few questions.
So, this continuing duty that this proposal is intended to address would apply even -- this continuing duty would apply even if an employer had not received any new information that a recordable injury or illness had occurred, right?
MS. GOODMAN: That's correct.
MR. CANNON: And so the continuing duty would be triggered by the same information that would have triggered the original duty to record, correct?
MS. GOODMAN: Right. Ultimately, the employer has a duty to assess each case and determine whether it's recordable, and if they don't do that on day one, then the obligation continues.
MR. CANNON: And so, say, for instance -- I'm going to use a hypothetical situation here. Say an employer mistakenly fails to record an injury or illness within the seven-day period, as required. They don't get any new information that would suggest that this was a recordable injury or illness, and nothing else ever happens with that particular case. So, based on what you're saying, is that they could be cited for that full -- during that five-year retention period -- for that -- for that -- missing that initial seven-day period.
MS. GOODMAN: That's correct.
MR. STAFFORD: Steve.
MR. HAWKINS: Steve Hawkins, state plan rep.
By that same question that Kevin asked, if an employer became aware -- let's say an employee goes out with an illness and it's difficult to -- to diagnose and the employer gets information six months after they went out that it was actually a work-related illness, then OSHA could not compel the person to record that. If they missed that by more than six months, then no action would be taken by the agency?
MS. GOODMAN: I'm confused by the question. Are you talking about under -- under the proposal or under --
MR. HAWKINS: Well, as it is today with this Volks decision.
MS. GOODMAN: I'm not sure that Volks addresses the situation in which new information becomes available. So, I'm hesitant to -- you know, I think if new information becomes available --
MR. HAWKINS: Then your six months would start again.
MS. GOODMAN: Yes.
MR. STAFFORD: Don?
MR. PRATT: Don Pratt, employer rep.
I was very disturbed when I saw this proposal that we were going to be discussing today, and just to let you know who I am, I'm Don Pratt, and I represent the National Association of Homebuilders.
We have about 140,000 members across the country, both builders and subcontractors, with thousands of construction workers.
I, myself, am a builder and developer, and have, from time to time, actually had hundreds of employees, off and on.
The OSHA summary request -- I have a few questions on it, and I'm going to ask those now, and hopefully get good responses from you.
My understanding is that the OSHA log form says that at the time it takes to record the case, which would refer to the time that it takes for research of the data and also to review the instructions to record. Is that a correct statement on the form itself?
MS. GOODMAN: I actually don't know. I'd have to go back and look.
MR. PRATT: Okay. Well, I have, and it's on there, and in fact, there is a .38-hour estimated time to -- that is referred to, and you haven't mentioned it in your comments, but it's in the information that we have here in front of us, that that timeframe would be to consider whether a case is recordable or not. Is that true?
MS. GOODMAN: Let me first be clear that that .38 figure is part of the agency's kind of secondary analysis. The agency does not believe the rule will impose any new burdens on employers.
That .38 figure is a figure that has been used in other OSHA record keeping rulemakings, and we have used it here, as well, to do the supplemental analysis to say, even if -- although the agency does not anticipate that this is going to result in the recording of any cases that wouldn't otherwise be recorded, even if it does, the agency used that .38 figure to do an analysis to say, even if a certain percentage of all recordable injuries and illnesses are recorded as a result of this rulemaking, and then multiply that by the .38 figure.
So, the .38 figure is something we have used previously. I believe it does account for all of those things that you mentioned, and it's, you know, something that the agency has looked at, like I said, in other rulemakings, but here it is used solely for purposes of the supplemental or secondary analysis.
The agency's, you know, firm position here is that they don't believe this rule will result in any new cost burden on employers.
MR. PRATT: Okay, I appreciate what you're saying, okay? But my question is, is this the time that you feel or the agency feels that it's going to take to consider whether something is a recordable case or not?
MS. GOODMAN: Yes, I believe that's accurate, and that's something that we have said previously, as well, in other rulemaking.
MR. PRATT: Okay. I understand that. So, that's the only thing I have to go by, okay?
Please understand, you know, I don't have a crystal ball, so -- and it further says in the summary that was submitted to this committee by email that the cost of this proposed rule change would be nominal. Is that correct?
MS. GOODMAN: That's with reference to the supplemental analysis that we did that came out with a maximum cost burden on employers of $2.2 million a year.
MR. PRATT: Okay. And that's peanuts.
So, then, the employer would not have to reconsider the facts and the regulation for every unrecorded case each and every day. Is that correct?
MS. GOODMAN: Well, I'm slightly confused by your question. If the question is, they do an assessment on day one, determine that it's not recordable, and then, at day two and day three, do they have to reassess that case? The answer is no.
If they have not done that assessment on day one, the duty to do that assessment continues.
MR. PRATT: Okay. Can we pick an example here, and maybe I can get some clarity for myself and also for the committee?
Let's say that there is a recordable case by the employer and he reaches the wrong conclusion about the recordability of that particular case, and he did not record by the eighth day, which is what it stipulates now.
You're saying that the employer would have to consider re-recordability again, let's say, on the ninth day.
MS. GOODMAN: That is not what we're saying.
MR. PRATT: That is not what you're saying.
MS. GOODMAN: No.
MR. PRATT: Well, then what you saying?
MS. GOODMAN: We are saying, if you do not do the assessment, if you do not evaluate the recordability of the case on day one, you have an ongoing duty to evaluate the recordability of that case and make a determination.
We are not saying that determination needs to remade on every day during the retention period.
MR. PRATT: But using the Volks case, if that scenario happened and six months went by, by what you just said, would the employer then have to record that illness or injury?
MS. GOODMAN: Under the Volks case?
MR. PRATT: Well, under the condition that exists today, without the rule change.
MS. GOODMAN: I mean, I think what's getting confused is there's a difference between the obligation to record and what the agency can cite. The agency's position is that that obligation to record exists. The obligation is to keep and maintain accurate records.
MR. PRATT: I appreciate that.
MS. GOODMAN: What can be cited is a separate legal question.
MR. PRATT: Okay. I appreciate that, all right? But my question is really that, if something slips through the cracks and it's not recorded, is that employer on the hook for up to five years?
MS. GOODMAN: Under the proposal?
MR. PRATT: Under the new proposal. Under the new proposal.
MS. GOODMAN: Under the new proposal, yes, there is an obligation to maintain accurate records for the duration of the five-year retention period.
MR. PRATT: Okay. And I did a little math, if you would please bear with me here for a moment, okay?
Let's say that the remaining days were 1,818 days, which I arrived at by taking a year, 365 days, times 4 years, and then adding the last year, which was a little bit less, because it's missing the 7 days, came to 1,818 days.
Then multiply the 1,818 days by .38 man hours per day, per case, this would add up to 690 man hours per unrecorded case over the 5-year period. Is that correct?
MS. GOODMAN: I mean, the math be correct, I don't know.
MR. PRATT: Trust me, it is.
MS. GOODMAN: Ultimately, the -- you know, that is premised on the assumption that the agency is expecting the employer to reassess every case every day, which we -- is not the agency's position and would not be the agency's position under the new rule.
MR. PRATT: So, you're telling me that the new rule would not require the employer to reassess each case each day.
MS. GOODMAN: Correct.
MR. PRATT: That's contrary to what I read. I don't have it right here. I took some notes and --
MR. HAWKINS: Sounds like church in the south. I've got it here if I can just find it.
MR. PRATT: There's folks in here that can address that issue. The question, though, is if there is that kind of a burden, which I believe there is, on a small businessman, small builder, small contractor, that is excessive.
That's burdensome, in my opinion, and I just think that we should not react on this so quickly without looking at all of the facts that I have been able to dig out in a very short period of time, by the way.
So, I think we need to re-look at this, revisit this. I am not in favor of this going through today.
MR. STAFFORD: All right. Thank you.
MS. DePRATER: Cindy DePrater, employer rep.
The question is why isn't six months long enough to look at the recordability issue? Why must it be extended to five years? That does not make any sense.
The obligation, if Donald's math is right, and I'll assume that it is, would put a tremendous burden, tremendous burden on every employer in the United States to have to manage this every single day to define recordability and track it.
So, why isn't six months long enough?
MS. GOODMAN: I guess I'm confused. When you say -- are you talking about the employer's obligation to assess recordability or are you talking about --
MS. DePRATER: The citation, that OSHA could cite up to five years beyond why someone didn't get the recordability right, because typically, at the end of a year, you close everything out. You do.
You close it and you do not go back and look at it, and I feel like we're -- we're right there at the top of recording everything, in fact probably overly so, but at the end of the year, it's closed and we don't look at it again, because that year is closed. If we can't determine that in a year, there's something wrong.
MS. GOODMAN: If who can't determine that in a year?
MS. DePRATER: An employer.
MS. GOODMAN: Like I said earlier, there is no -- under the proposal, the employer would not --
MS. DePRATER: You're talking about citing for up to five years.
MS. GOODMAN: Citing the employer for failing to have accurate records on-hand, not for failing to reassess a particular case every time.
MS. DePRATER: That's not the way I read it. It's all too confusing at this point. It's not definitive enough.
MR. STAFFORD: Steve?
MR. HAWKINS: As an administrator of a program that does this -- and actually, I guess we are fortunate in Tennessee, because we -- the way our statute was written, this decision doesn't affect us, according to our attorneys, but it's been --
MR. STAFFORD: It's nice to be in Tennessee.
MR. HAWKINS: From a practical matter, I mean it seems like we're going from the practical to the absurd with this argument. What you're talking about is if -- if you did find out that a person had an injury -- let's say it was six months and two days.
It's your position that you don't think OSHA should be able to penalize you said the hell with it, I'm not going to record this, cause I don't have to.
MS. DePRATER: No, I said we true it up at the end of a year.
MR. HAWKINS: So, let's say you find, at the end of a year and a day, and you say, well, there's no penalty for not doing this, so I'm not going to do it?
MS. DePRATER: If you acted in good faith and you -- you treated the individual and you got them back to work, there should not be the opportunity for OSHA to cite you for this.
MR. HAWKINS: Even if you failed to record it. And that's been the rule that we've had in -- I mean, that's the way we've operated as long with the program in Tennessee, and that's 28 years.
So, you would say OSHA should not be able to compel you in any way to go ahead and put that on your OSHA 300.
MS. DePRATER: No, not after a year.
MR. HAWKINS: I'd have to respectfully disagree with that.
MR. STAFFORD: I do, as well.
MR. HICKMAN: Palmer Hickman, employee representative.
It seems like a reasonable assumption that OSHA is making here. Quite frankly -- maybe this is a bad analogy, but I'll use the IRS. If you don't pay your taxes and they determine three years later that you didn't pay your taxes, the taxes are due, it seems reasonable they should be able to make you pay your taxes.
So, if you, for whatever reason, don't record -- you're supposed to retain those records for five years -- well, it seems that those records should be available and they should be able to cite for that period where you should have retained them even though you didn't establish them.
It seems reasonable.
MR. STAFFORD: Thank you.
MR. RIVERA: Jerry Rivera, employer rep.
Thank you so much for taking it for the team.
Looking at this, as well, it just says that it's to clarify, and you know, I'm struggling with it, because to me, it seems like a clear change of what was originally intended, and what's even more puzzling to me is that the court already acted on this, and you have the Volks case, and they made a determination, and I'm thinking that, you know, the ACCSH committee, who are we to rescind that decision that the court already determined?
I mean, that's -- as far as I'm concerned, this is closed. Six months is what the court decided. That's what we should stick by.
It is not clarifying anything, it's changing it. So, if you want to change it, we'll consider it, but let's not put down on a paper that it's clarifying.
So, I speak against the motion.
MR. STAFFORD: Any other comments?
MR. HAWKINS: Generally, we all do what we're required to do, and if we're not required to do it, who's going to do it?
So, if -- I mean, what this court did is -- you know, I respect what you said, Jerry, but what the court decision did was basically reverse policy that had been policy for over 30 years or more of recording these incidences when you find out about them, and now, as it is, you know, after six months, you have no impetus to do so, really.
There's nobody who can, quote, "make" you do it. You can just thumb your nose and say we're never going to update our records if it's been more than six months, and we didn't get caught, and lucky us. That doesn't seem like a good way to operate, because these records are important.
When my investigators go in, they review the OSHA 300 log to look for trends, and they go back -- always go back three years, always go back three years.
So, now what they're going to be looking at may or may not be reliable past six months, and so, I think it's pretty important that an employer have an obligation to continue to maintain accurate records.
I understand there can be cases where, you know, five years sounds like a long time, but it's only based on their knowledge, and after they have knowledge, they have to go back and fix it, and that obligation continues during the whole period. It seems reasonable to me.
MR. STAFFORD: Tish.
MS. DAVIS: First of all, I think OSHA has made it clear that this is not changing any of the recording obligations. It is only changing the timeframe within which OSHA can cite.
So, to think that it's changing recording obligations, it's not happening. That's not what is proposed here.
I think it's really crucial to look at the purpose of record keeping. The purpose of record keeping is to provide data that employers can use and workers can use, unions can use, we in government can use to target effective prevention programs.
You want that data to be as accurate as possible. If you get new information, you should want to include that on your OSHA logs, and you want to see patterns over time. You want your data to be accurate as possible.
So, I think that's what this is about. I think letting employers off the hook to making sure that their data is accurate, should new information come to their attention, letting them off the hook is tantamount to saying it's okay for them to knowledgeably report inaccurate data at the end of the year.
That's not right. That's not good for you. It's not good for the employers. It's not good for anyone concerned.
So, I support this proposal.
MR. STAFFORD: Thank you, Tish.
DR. BRANCHE: Tish, with great clarity and erudition, raised the issue that I was going to, that I think there's been confusion about what's on the table here. It's not about the reporting obligation; it's about the penalty time. So, thank you.
MR. STAFFORD: Go ahead, Tish.
MS. DAVIS: I will raise another point, because you asked why more than six months? I can tell you that we in public health departments, in many state health departments, work-related conditions are reportable to the health department.
We use many data sources to track work-related illnesses and injuries. We use emergency department -- we have physician reports coming in on a daily basis. I interview injured workers on a daily basis.
Many of those data systems that we use do not come into our office until several months after the incidents, and we make our judgment, and we refer cases to OSHA.
So, I think some of the data sources and information coming into OSHA about incidents don't come in within the six months timeframe.
So, that would be another argument to make why it's important for OSHA to be in a position to cite after the six months period, because for many of them, in many cases, information about the incidents are not going to come to their attention until after that time period.
MR. STAFFORD: Thank you.
MR. BETHANCOURT: What Tish is saying -- it seems to -- the issue that I'm thinking about is -- we're only discussing whether or not it's new information that's coming out, whether or not the employer knows and learns of the information, not whether or not there was a mistake that was made four years and six months down the road, cause if that's what we're talking about, I would have a problem with that.
If we're talking about an employer who makes an error and puts it away four years and six months ago, and then they're cited for, oh, your OSHA log is not accurate. You know, holy cow, that was a long time ago. I don't remember that, four years and six months ago.
If we're only talking about citing when new information comes out, when we learn of new information, don't we have an obligation to go, oh, shoot, you know what, we learned about this new information, let's -- because we want that information.
So, I wouldn't have a problem with new information, but if this manifests into something that turns into errors, which everybody makes, that would be my concern, is if this manifested into something where we're going to go after for five years for an error, which I have made, straight up. I have made errors and gone through and went, oh, shoot, how did I miss that? Darn it.
So, that's what I have to say about that.
MS. GOODMAN: I do want to clarify that it is not simply about new information. This is about errors on the record, meaning that, for the duration, you do not have the accurate records that the agency calls for for the duration of that period.
You know, I think it's important to step back and recognize that, in most instances, OSHA is not out there issuing hundreds of thousands of dollars in citation for these record keeping violations.
These are typically other than serious citations with nominal penalties, the idea being that we are recognizing errors happen.
We are not, you know, in most cases, issuing heavy -- willful penalties for your run-of-the-mill, you know, record keeping violations, but there is an obligation to have accurate records on-hand for the duration of that period, and that's a determination that OSHA made not in this rulemaking but in prior rulemakings when it determined that five years was the period for which it expected employers to keep those records and to keep those records accurate.
MS. PHILLIPS: The five-year period is not new. That's been since the inception of the rule.
MR. STAFFORD: That's what's confusing me. I mean, the employers seem to be very upset about something that has been in place now for 40 years.
MR. CANNON: Kevin Cannon, employer rep.
I think what Jeremy said is really what the concern amongst the employer representatives -- you know, what we were trying to articulate, but he did a better job, I think, in saying we make mistakes, and to be held accountable for mistakes that were made 4 1/2, 5 years ago, where, as Cindy says, we closed the books, we screwed up, we didn't put an entry on the log, but you know -- and we don't revisit, but then to say that, you know, this could come back to haunt us 4 1/2 to 5 years later is where the concern is raised on our side.
MR. STAFFORD: Go ahead, Tom.
MR. MARRERO: Tom Marrero, employer rep.
You know, regardless, it's a citation nonetheless, regardless of the severity of the citation, and as an employer, we take pride in trying not to get citations, you know, so if there is a small error on our end, you know, we're going to get cited for it?
You know, I find that hard to swallow.
Another point, you know, to piggyback on what Jerry was saying earlier, you know, the court has already decided on this. Why is this even being brought to the table?
MR. STAFFORD: We're not here to reverse the Volks decision. This is not a legal proceeding. The question is, with the Volks decision, OSHA has come to us and asked, do we believe that they should clarify the obligations for employers to keep accurate records? That's what the question is.
So, in other words, the Volks decision has, to the agency, created confusion about what the record keeping obligations are, and that's what we've been asked to address.
There's a lot of things that happen in court that end coming back around this table.
MS. GOODMAN: I just wanted to follow up on that point. I mean, it isn't unusual for the agency to react to judicial opinions through rulemaking.
I mean, that is, oftentimes, what is done when a court looks at our rules and identifies some confusion or lack of clarity or interprets it in a way that is not how we intended it to be interpreted. They can be clarified through rulemaking, and this is not the first instance in which the agency has taken that approach.
MR. STAFFORD: Sarah?
MS. COYNE: The only thing that I just really want to say is that there's roles, there's responsibilities, there's penalties for everything in life.
I mean, I made an error once, and four years later, it cost me 25 grand with the IRS. Well, you know what? It happens.
I think that this is really kind of blown out of proportion and the focus is on, oh, my god, if I make a tiny little error and OSHA comes in and reviews my records, that I'm going to get hit with a $25,000 find or they're going to shut me down. That's not the case.
The case is, you know, you folks here are the top employers. You do things right. But you also make mistakes. But it's not about you. It's about the people that are out there that aren't good employers, that may make a decision to not jot down my injury.
So, to me, I just think that this thing is like way blown out of proportion.
We've got to look at what it is, bottom line, be responsible, and you know what, if you're not responsible or if you make a human error and OSHA does come in and reviews your records, well, you know what, they're going to call you out and they're going to give you a fine, but you're going to have an opportunity to fix it, like all the other fines, and then it's going to be reduced.
It's not going to shut anybody down. It's about accountability and following the rules set forth by OSHA, and I support it.
MR. STAFFORD: Okay. Thank you, Sarah.
MR. HICKMAN: Thank you. Palmer Hickman, employee representative.
Speaking again in support of the recommendation from OSHA, I'll springboard off of Lauren's comments. I think it's a logical next step for OSHA, after something like the Union Tank Car decision and employer payment for PPE.
For years and years and years, decades, you've been enforcing something a certain way, and then, all of a sudden, out of nowhere, it would seem, something contrary, 180 degrees opposite, happened.
So, this is a logical next step that OSHA would do just like the employer payment for PPE, clarify the rule, maybe even better. It seemed clear to everyone until some court decides that it's not clear.
So, again, I don't see a change in the rule; I see clarification in the rule.
MR. STAFFORD: Thank you.
MR. RIVERA: Yes. Jerry Rivera, employer rep.
Again, I think we're -- the request seems modest, but in reality, it does -- in application, when we face these conditions on the ground, you know, the CSHO who is chartered with following the letter of the law is not going to give an employer who has made an error the flexibility, and it might not mean nothing to anybody as far as a citation, but in today's business, it does.
Now, those employers are evil employers that are not recording, you know, they're out there, we know that, but the people who are here today and who we represent, we take our due diligence and making sure that the records are done correctly, and we will be tugged into these scenarios where an error is made.
Now, again, Jeremy made a good point. Do we go back to it if we find out if something has drastically changed and modify it?
We'll probably do it, yeah, absolutely, but you know, the way it appears is that there is that continuous reevaluation of that occurrence that occurred once to evaluate multiple times throughout the course of the five-year period.
It does take us away from the people on the ground who are trying to protect the workers and ensure safety and healthful working conditions on the ground. It does distract us to be -- record keeping is challenging enough.
To throw this in the mix is going to tug us away from the field.
Is that what the committee wants to recommend? I don't know what to say, but it seems simple.
MR. STAFFORD: We'll take a motion at some point on that, and I'm really perplexed on why it is that you're so adamantly against this when it's been the way it has been for 40 years.
MR. HAWKINS: That was actually my question.
I mean, for the employers who are upset about this, how much time did you spend prior to this 2012 decision reviewing these records over and over again like Don's math suggests? I'm just curious, because that was -- the requirement was the same then as it would be if OSHA is successful in changing the rules.
How much time did you spend reviewing all these records 4 years and 364 days back to make sure they were all still accurate? Were you doing that prior to this Volks decision?
The employers at the table seem upset that if OSHA changes this rule, they would have to spend an inordinate amount of time reviewing their records, and my question is, prior to 2012, were you spending an inordinate amount of time reviewing your records before this decision?
MR. RIVERA: I think I'm going to capitalize on what Cindy said. You know, we report the initial occurrence, and at the end of the year, we close out the books. If something has changed in that period, you know, we'll modify it, but beyond that, you put it to the side and you move on.
MR. HAWKINS: And that's what you were doing prior to 2012? You're not going to change the way you're doing this because of this new rule, right?
MR. RIVERA: We will have to.
MR. HAWKINS: Are you going to be doing it differently now than you were in 2010?
MR. RIVERA: The way the language is put forward, we would have to reevaluate -- if we get new information, we have to evaluate whether recordability applies or not. That's my challenge with this.
You know, the five-year period as far as maintaining the records, fine, but the accuracy when you miss something -- and again, a lot of people around this table, employers, are not going to miss something maliciously. It just happens sometimes.
MR. HAWKINS: So, it gives a bye -- it basically would give a bye to your competitors who are not as diligent as you are, who don't keep their records, and then, after six months passes, nothing happens to them.
It almost seems like you would support the change back to how it was before.
MR. STAFFORD: Christine?
DR. BRANCHE: Christine Branche, NIOSH.
I think just about everybody has spoken.
May I move that we take a vote on the recommendation that OSHA formally requests -- I guess that we submit a recommendation on whether the agency should proceed with the proposed amendments to the record keeping regulations in 29 CFR Part 1904? We can't move that yet?
MS. WILSON: I'm sorry. Just to clarify what you're -- you can definitely make a motion now. Are you making a motion that we take on vote on making a recommendation or are you moving that the committee recommends that OSHA proceed?
MR. STAFFORD: Christine?
DR. BRANCHE: I don't really know. I'm trying to move us along. I guess I'm pushing it to a vote, yes.
MR. STAFFORD: Hold on one second. We're going to wrap this up, because we do need to make a formal motion.
MR. ERICKSON: If there's a question, I will make that recommendation on the agency proceeding with the proposed amendments to the record keeping regulations in 29 CFR.1904.
DR. BRANCHE: How is that different from what I did?
MR. STAFFORD: Okay. So, we have a motion -- I see your hand up, Mr. Sapper, but we're not going to be able to take your comments right now.
So, we have a motion, and it's been seconded, that we recommend that the agency proceed, right, with this proposed rulemaking on this particular standard. We've had the discussion.
All those in favor, signify by saying aye.
MS. WILSON: Actually, could you please raise your hands for this vote?
MR. STAFFORD: All those in favor, signify by saying aye or raise your hand.
(Show of hands.)
MS. WILSON: I count nine yays.
MR. STAFFORD: Nine yays. Ten yays.
All those opposed, please signify.
(Show of hands.)
MS. WILSON: I count five no's.
MR. STAFFORD: Okay. Lauren and Heather, thank you very much. We appreciate your time.
We will adjourn for a lunch break until 1:00 o'clock.
(Whereupon, at 11:55 a.m., a luncheon recess was taken.)
MR. STAFFORD: We'll call the meeting back to order, please.
Our next presentation this afternoon is going to be on subpart V, electric power generation, transmission, and distribution, but before we get to that, I'd like to turn it over to Lisa for a clarification on the last action the committee took before lunch.
MS. WILSON: Thank you. I'm sorry. I just wanted to clarify, the vote on the previous motion on the record keeping proposal was actually 10 in favor and 5 against. The motion still passes, but I previously miscounted as nine in favor.
And if I may, I would like to also designate exhibits. I'd like to designate the coke oven presentation as Exhibit 9 and the memo on the record keeping proposal as Exhibit 10.
MR. STAFFORD: All right. Thank you.
Mr. Harvey is with the Directorate of Enforcement Programs.
Mr. Harvey, it looks like you have a Power Point for us this afternoon.
MR. HARVEY: Yes, I do.
MR. STAFFORD: Okay. The floor is yours. Thank you for being here.
MR. HARVEY: Okay. Thank you.
PRESENTATION ON 29 CFR PART 1926, SUBPART V, ELECTRIC POWER GENERATION, TRANSMISSION AND DISTRIBUTION
MR. HARVEY: As Pete said, I'm Chuck Harvey from the Directorate of Enforcement Programs to talk to you briefly, give you an overview of subpart V, and also, we'll talk about 1910.269. They're really the same thing now.
It also includes 1910.137 and 1926.97, which are electrical protective equipment. These are things like rubber gloves, insulating blankets, insulating sleeves that workers will use, the standards on that now, as well.
I'll begin the presentation talking about why the standard was revised. As you can see there, the first standards for electrical power distribution, transmission, and construction were issued in 1972.
Needless to say, there's been a few changes since then, and they've been working on this for about 10 years now, and finally it was promulgated in July of this year -- actually, April. It became effective July of this year.
1910.269 was a little bit newer, was put out in 1994, and it's not really substantially changed. In fact, if you look at 1910.269, the old version and the new version, you'd be hard pressed to find a lot of differences. They're almost identical.
There's very few differences, mostly with arc-rated gear and minimum approach distance, which we'll talk about here briefly.
And also, the new standard now will provide additional protection and it makes the standards the same. So, the CSHO or just about anybody else, any other stakeholder in this industry, won't have to worry about following the standards for maintenance and following standards for construction differently. They're the same, essentially, now. The only difference is line clearance and tree trimmers and power generation are only in 1910.269.
Who is affected by this? It's any firms that operate, control power transmission distribution, obviously utilities.
There are some companies, manufacturing firms, that have their own power distribution system. They get power from the gate, so to speak, and distribute it around their facility. They'd be affected by this rule, as well.
Some that co-generate also affected by this rule, and the contractors that are hired by electric utilities are also affected, and there's a host contractor revision now in the new rule that basically says the contractor is supposed to know about certain things before they begin their work. I'll talk about that briefly, as well.
And also, of course, naturally, the line clearance, tree trimmers are also affected by this.
The biggest changes are here on this slide. There's four big changes. The biggest, minimum approach distance, requirements for host contractor provision, information transfer, essentially, revise fall protection requirements and revised the requirements for protection from wired electric arcs, basically arc flash, which is a term probably everybody is familiar with.
Protection for that now is standardized, and it's in the rule. It actually begins anytime there's a hazard that's equal to or greater than 2 calories per centimeter squared. It's just an arc rating. I'll get more into that in a second.
This slide just depicts what electric power system is in the graphic and where the standards apply.
As you can see, looking at this, 1910.269 pretty much covers the gamut, and 1926, subpart V, the construction standard, would apply whenever there is construction of a new transmission line or distribution line, as you can see by this graphic, and in the houses, where the power distribution ends, where the transmission line ends, the transmission connection, if you will, to the structures, is where subpart K and subpart S would apply.
Minimum approach distance, the first of the big four significant changes, have to do with the amount of time or, I should say, the amount of space that's needed from an energized part for a worker. This includes the movement of the worker within that or near that space.
It's termed a ergonomic factor that has to be added in to -- to the calculation now.
As you can see, on the bottom of the slide, too, it's got -- there's some standards listed there that apply to the particular standard that's being discussed.
With minimum approach distance, the employer now has to use the tables in the standard. The old subpart V, it was basically look at the voltage that you're operating on, then look at the distance. You just follow the table, it's simple.
Well, the new rule is not that much more complicated. Now you have to know the voltage you're working on, obviously, but then you look at the distance, look at the chart, look at the elevation, and do some simple math, and it depends on the voltage, naturally, and you figure out what your minimum approach distance is.
For any voltages that are over 72 1/2, 72.5kv, you have to include maximum transient over voltage in that calculation, and all that really is is a factor from 1.8 to 3.5 that you would multiply that distance by, essentially, but it's a lot more complicated than that.
The transient over voltage has to do with a lot of phenomena on the line where there's a switching going on or there's a surge, but just -- it's important for employers to know that they have to use that if they have anything over 72.5k that they're working on.
The information transfer is the next big section, and this really just deals with two groups, the employers talking to their employees through the job supervisor, and the contractors that a utility might hire to come and do something.
There is information that they need to know about now.
This is a formalized process.
This and most of the stuff in the new standard is something that the consensus standards in FBA, ANSI, IEEE have had in place for years, and most employers are following them, and now it's in OSHA standards, essentially.
Just a definition of hosting contractor -- who is a host, who is a contractor? The host obviously operates the lines, owns the lines. The contractor, of course, coming in to do some work, that's covered by this standard as far as this standard is covered on that work.
Information transfer. There's a couple of sections here that basically talks about what needs to be talked about in the information transfer, things like the voltage in the line, the transient over voltage, any opportunities for induced current.
We had a case recently that I looked at where a lineman was killed from induced current. They were working on a line that was adjacent to a 345kv line that was energized, and they knew it, but something fell apart and induced currents on the line of about 14,000 volts, and it killed a lineman.
There's a number of things that weren't done correctly there, but induced current is a big hazard, and it doesn't normally present itself when you have a de-energized line. You wouldn't realize that there is such a thing as induced current. That's why there's provisions in the standard now for testing before workers go up and do anything, grounding, other things like that.
Host contractor provisions and job briefing. Job briefing requirements are basically that. An employer needs to make sure that his employee in charge, that their employees in charge of any job or any crew knows certain information.
The duty is on the employer, not the employee in charge, but the employee in charge's duty is to make sure they brief the crew on the hazards of the job, and there are some specifics, not a lot, but there are some specifics in the standard about job briefing that needs to be covered at a minimum.
They can cover anything they want, but there's minimum requirements to cover certain things.
For instance, here on this slide, existing characteristics is something that's going to be covered in information transfer from the host to the contractor, voltage on the line, maximum over voltage, presence of any grounds, locations of circuits and equipment, conditions of the installation, such as conditions of grounds or poles.
Are there any poles out there that shouldn't be climbed, or is there anything that, you know, the contractor needs to be aware of, any environmental conditions, as well.
With the job briefing, the standard, again, talks about the specifics that need to be covered. The employer really -- his task is to make sure the employee in charge knows about this and covers those things.
Those are the two biggies on this slide right here, existing characteristics and existing conditions.
Fall protection is the third of the floor, substantial changes with fall protection. We've talked about three different types, essentially, work positioning equipment, fall restraint, and fall arrest, which really is what is covered in the standard.
As you can see by the slide here, it kind of depicts, pretty much, those three right there.
Fall restraint is supposed to be rigged so that the employee has zero fall, they can't get to the fall, essentially, there's no way for the employee to reach the fall.
This depiction on this slide is not probably subpart V work.
For the most part, our fall restraint talks about -- in the standard -- about aerial lifts, when you use bucket trucks and things like this, is where the fall restraint is one of the two options they have when they're working out of a bucket truck.
Work positioning equipment usually is designed to work on a vertical surface where the employer has given the employee the equipment to work in a vertical surface where his hands are free.
They're able to move around, take things, install things, etcetera.
This example here has got the lineman. He's got his gaffs in the pole and he's got the pole strap around the pole. It's actually on another graphic here. This is a form of fall protection, as well.
Work positioning -- the pole strap actually squeezes the pole if the employee was to fall, his gaff were to cut out or whatever.
You'll see this on a slide coming up. There's a little bit better illustration of this device he's using.
And fall arrest, which everyone knows about. The requirement in fall arrest obviously, everybody knows, it should be less than a six-foot fall, six-foot-or-less fall, should be rigged for that, and in this case, as is shown on here in the slide, the individual is working out of a bucket truck. They have fall restraint and fall arrest, are the two options when you're working out of an aerial lift.
On poles or towers, beginning April 1, 2015, this standard kicks in for poles and towers and any similar device that an employee needs to have fall protection if they're more than four foot off the ground, 1.2 meters.
That's when the standard kicks in as far as the requirement goes, anything over four foot, then they would use the appropriate fall protection, whether it be work positioning, fall restraint, or fall arrest.
This is the pole strap that I was mentioning earlier that the lineman would use to, you know, engage around the pole. So, if he was to fall out, this actually squeezes the pole.
It's work positioning equipment. It does two functions. It lets them work with their hands free, as well as provides them fall protection in the event their gaff were to give out or something like that.
This, along with all the other fall protection stuff, is effective April 1, 2015.
Electric arc protection is the fourth of the four, substantial changes. An arc flash is something that's a common hazard, everybody knows about. Now it's in our standard that they have to be protected anytime they're at 2.0 calorie per centimeter squared hazard level or greater.
The employer's challenge is to assess the workplace, determine where the hazards are out. More than likely, that's been done already.
It's been in consensus standards for years to determine what your incident energy level is for your environment, and it's probably already done, but now, again, it's in the standard. It's required that they do that.
Prohibit certain types of clothing. Meltable clothing, obviously, is not good if there's an arc flash hazard, so employees are not to wear that stuff, and the employer is charged with making sure the employee is not wearing any clothing that could melt in an arc, and the standard talks about -- gives a long list of the types of materials that are prohibited.
And then it requires FR clothing when we're at 2.0 calories per centimeter squared or greater, and the employer should select clothing with a rating that's greater than or equal to the hazard level.
There are some differences in the standard for protection of the head and the face and the hands and the feet. The body coverage is determined by the 2.0 cal per centimeter squared hazard or greater.
The head and the face are different. Protection for the head is only required if we're going to be equal to or greater than 9 cals, and it's a single-phase arc in air, which means basically one phase, one wire, open air, like a line, like a distribution line, and requires 5 cals for all the other exposures, equal to or greater than 5 cal.
So, if it was a situation where you have three phases, which you normally do on a line, they would need to use the 5 cals.
Protection for the hands -- that kicks in whenever they are not wearing heavy-duty leather work gloves. The weight of heavy-duty leather work gloves will protect them from an arc if it's less than or equal to 14 cals, and if they're wearing rubber gloves and protectors, obviously they don't need to wear any other additional arc protection.
And then, for the feet, heavy-duty work boots or shoes are considered to be protective against the arcs.
Compliance deadlines. Right now, the compliance deadlines are set for incident energy estimates. They must begin by January the 1st, a couple of weeks from now, and then fall protection -- the wearing of arc-rated clothing, and the minimum approach distances have to all go into effect on April 1, 2015.
The key on the minimum approach distance is, if there's any over 72.5k exposure, they need to have their transient over voltage known.
And that's essentially my presentation. Are there any questions?
MR. STAFFORD: Thank you, Mr. Harvey.
Are there any questions or comments?
MR. RIVERA: Mr. Harvey, thank you so much for the informative presentation. I think this has been long overdue. However, there's a couple of areas that maybe I'm seeking a little bit more clarity on with the compliance date upon us.
You know, with the incident energy estimates that are being required now of the employer, who needs to provide that incident energy estimate? Does it fall in the hands of the utility, contractor?
I mean, I know there's an exchange of information, or sometimes, you know, thinking back into the industry, it doesn't happen that quickly, you know. So, I'm just trying to figure out, where does that fall into the obligation to provide the incident energy estimate, at least the initial information?
MR. HARVEY: Right.
The employer has a couple of options. I would think information transfer is where they're going to get it. I know you mentioned that, but I think that part of the work, if an employer is going to go out and perform a job of some sort that's covered by this standard, they need to know what that incident energy is.
If they don't know, then, you know, that should be something that they could calculate on their own.
Of course, that would require them to have knowledge that's given, like the voltage clearing time, exposure of, you know, distance away from the line, that incident energy is calculated at. They need to get that information from the host.
I mean, it's got to be transferred from the host.
MR. RIVERA: Mr. Harvey, I truly believe in this, you know, protecting the workforce, linemen. You know, they -- they go out at night, under storm -- under adverse weather conditions, you know, to supply power to the grid.
You know, we sometimes take that for granted. So, we owe them, you know, some level of protection, but sometimes when I'm looking at this, you know, in consultation with some of the partnership members, looking at the arc-rate clothing, as well, sometimes when you're in storm work, you know, you're chartered to respond to the needs of, you know, that community, sometimes you don't have that information available as far as the incident energy levels, you know, the exact ones.
Our contractors make the due diligence to get some estimates of what they're anticipating, but the accuracy, sometimes it's not precise.
Does the rule provide some flexibility to, you know, have somewhat of a initial assessment that could apply to, you know, let the work going on in one particular area?
MR. HARVEY: Right. There is a -- there is an exception as far as they don't need to assess every individual hole, if you will, every transformer bank, every capacitor bank. They can make estimates over a broad area. They absolutely can.
That's in the standard. That's written in the standard, almost verbatim as what I just said. So, they can do that.
And in response to your storm work scenario, a lot of times these people that -- other than a hurricane where they have, you know, mutual aid, if you will, come in from other areas, if it's in the area that they're at, these are the people that work the lines anyway.
So, they would probably be aware of, you know, these incident energy levels and other things like that.
MR. RIVERA: Because of the trade, they have a certain level of knowledge. Obviously, these are qualified individuals. But to kind of say that it's an actual assessment in great detail -- that would be misleading under those circumstances, and it's not only storm work sometimes. You know, it's just going to an area to make a repair, which is, you know, limited time.
I have another question here that -- on fall protection.
When you look at fall protection, you know, you've got the buck squeeze. When the lineman goes out into the horizontal brace, what's the fall protection expected at that level? Is it the same if you utilize the buck squeeze, or is there somewhat of a way that the standard addressing conquering obstacles?
MR. HARVEY: Are you meaning if he's working on a transmission tower and he has to lean out, something like that?
MR. RIVERA: Sure, that could be a scenario. Or a pole.
MR. HARVEY: Yeah. I would think that the same standard would apply.
MR. RIVERA: What standard?
MR. HARVEY: Work positioning.
MR. RIVERA: Okay. The next one that I have -- job briefing, last question, I promise. Is it considered a component of training when you conduct that job briefing? Is OSHA considering that -- since it is site-specific -- to be considered training in itself?
MR. HARVEY: The way that the job briefing rule is written -- it says, before every job or before every shift, there's supposed to be a job brief. That's the way the rule is written.
So, I think if you just said, well, they've been briefed, because we gave them training, it may not apply to the conditions of the situation at that time.
So, I think that it may require that the job briefing always be done, per the standard, unless it's repetitive work. The standard says that. If they're doing the same thing over and over again, we don't need to brief them if they did this yesterday and they're doing the same thing today.
MR. RIVERA: And just one last comment. I would recommend, in those four key areas, maybe you should -- you know, the Directorate of Construction can reach to the ET&D Partnership to try to figure out -- I know they're trying to work through some of these issues, they're trying to comply with it, but there's some areas, like the fall protection, going into horizontal, there's confusion, the incident energy levels. They have the intent of meeting these by the deadline date, but I think, as an industry, we're still trying to figure that out.
MR. HARVEY: Right.
MR. RIVERA: So, that's the last thing I have to say about that one.
MR. HARVEY: Right. If I could just add to that, there is a process right now where OSHA is not actually enforcing the standard until right now. It's scheduled for beginning of -- January 1st, cause we have extended our temporary enforcement memo, which you may or may not have seen. It came out in June, said that we wouldn't enforce, basically, most of the standard until October 31st, after October 31st. That got extended to December 31st.
So, right now, they're in settlement talks with a couple of the different groups. I think Jim Maddux alluded to this this morning, briefly.
So, right now, there isn't any enforcement of the new standard, if you will, from the standpoint of this is what you have to be held to.
Right now, the enforcement is of the old 1910.269 for all work, whether it be construction or maintenance.
If they're violating that, then they're cited under the new standard, because the new standard is law now. You can't cite the old standard, but you can use that as a compliance requirement.
MR. RIVERA: Thank you.
MR. STAFFORD: Any other questions or comments?
MR. STAFFORD: Mr. Harvey, I just have a question, basically from my own ignorance. On the information transfer, you explained very well what information needs to be transferred. Does it stipulate how? Is that in writing? Is that just in briefings? Is that in both? What about tiers of subcontractors that may be working for the contractor? How is that addressed?
MR. HARVEY: Right. That question has come up quite a bit in settlement discussions. There isn't a process defined in the standard of how that information is to be transferred.
Some employers have said could we do it via our website, and that's problematic in some areas, cause you know, the information they don't want released.
Could they do it via some kind of a contract, and it could be done that way.
There isn't a set means in the standard that says this is how you will transfer that information. It only says that this is the transfer -- that information that has to be transferred.
As far as a subcontractor to a sub to a sub, the host contractor still has the requirement to get those guys the knowledge, and they have to work that process through somehow.
MR. STAFFORD: The host employer or host contractor?
MR. HARVEY: The host employer.
MR. STAFFORD: So, the owner.
MR. HARVEY: The owner/operator of the system.
MR. STAFFORD: Jeremy?
MR. BETHANCOURT: My question is how much outreach has OSHA been doing with this particular standard to reach all the folks so that they understand what it is, where there's doubt or just confusion? Is there any guidance documents that are coming out or planned for that sort of thing?
MR. HARVEY: Yes, there's a lot of stuff planned. There's as compliance directive in the works. There's been probably 10 to 12 different webinars and briefings. We briefed our people, our CSHO's in the field, on it.
There's a lot of stuff planned. We have some fact sheets that we plan on getting out.
MR. BETHANCOURT: Any idea on a timeframe on those fact sheets? Cause I know folks that have been asking to have some clarification, and we've sent some -- you know, I've sent some emails to Jim to kind of get some questions back and forth, and we've looked at the question and answers on the website, but just more clarification seems to be -- people are asking for more kind of guidance on it.
MR. HARVEY: Absolutely. I understand. And I answer questions almost every other day on the standard. So, we're taking those. There isn't any kind of stipulation that says you can't ask, and it sounds like you have been asking. So, we'll try to answer those as they come in.
But there are some things planned, like the compliance directive. I can't give you a date on that. The standard itself, when they come to be enforced, which, right now, unless it's extended, is January 1st -- that memo will go out and everybody will see that and know that now we have to -- you know, now it's in force, now it's in effect, if you will.
I know that there's plenty of stuff in the pipe. It's going to take some time to get it out, and in the meantime, ask the questions and get them -- we'll get them answered.
The person that was responsible for most of this, for writing this, our guy that -- electrical engineer that retired from OSHA, is still kind of available to us.
So, we've got a real tough question, we go to him.
So, we'll get answers for you.
MR. STAFFORD: Any other questions or comments?
MR. STAFFORD: Mr. Harvey, thank you.
MR. HARVEY: Thank you.
All right. Now we're going to get into our workgroup reports. I'm going to change the order a little bit. I think the health hazards workgroup needs to get their minutes still typed up. So, we'll try to get a Temporary Worker Workgroup report in.
I don't know -- Tish or Jeremy or Tom -- how you are going to handle this.
TEMPORARY WORKER WORKGROUP REPORT
MS. DAVIS: We have a couple pages. We weren't all at the meeting yesterday, so we took fairly extensive notes for our colleagues on the committee.
So, present were Jeremy, Tom, and myself from ACCSH, OSHA staff, and the -- and a number of members of the public, and we're attaching a list of attendees. There were several phone-in participants, Michelle Walker from OSHA and three people from NACOSH, Mark Carlson, Jim Johnson, and Bill Bunn.
So, just to note that several members of the NACOSH temporary worker group participated in the meeting. Peg Seminario of NACOSH was also, you know, present at the meeting.
The meeting was chaired by Tom Marrero. Workgroup co-chairs, Jeremy and myself, took notes.
The meeting was largely devoted to a discussion with two construction company representatives, i.e. host employers, regarding their practices and experiences working with temporary agencies and temporary agent workers.
Kevin Potter is vice president of Morton's Building, which is a large commercial construction firm that specializes in pole barn and similar structures. They have 136 facilities in 38 states.
Karl Ballwanz works with Clark Building Solutions, a large general contractor in the D.C. and Maryland area.
Mr. Potter reported that Morton's Building uses temporary agencies in two different ways, first to engage workers for specific project needs on the bigger projects, and two, as a way -- they enlist temporary agencies to assist in hiring new candidates. They engage workers through their temporary agency for an initial 90-day trial period and then make a determination about proceeding with hiring.
Mr. Ballwanz reported that his experience is on large projects in which the project subs need to hire temporary labor to keep the project on schedule, and in these cases, all the tiered subs operate under the GC policies, and they often have these wraparound insurance liability and workers compensation policy, which the GC covers comp for all workers onsite, including the temporary agency workers, and on large projects, the temp workers can be there for several months.
So, then, Mr. Potter and Mr. Ballwanz responded to a number of questions from ACCSH members and other meeting participants.
When asked about what they expect from temporary agency workers in terms of training, the responses were quite different.
Mr. Potter reported that Morton's expects only that the temporary agency worker have the basics of carpentry. Morton's Building takes care of the safety training.
They have their own internal video production and training group that tailors training to their company. They have a series of six training videos that the temp workers watch, they need to watch, and there is a test at the end.
The foremen onsite then have responsibility to assure that the work is done safely.
The first video is an orientation or introduction about the company, about who they are working for. It covers what the company does, what are basic worker health and safety rights, responsibilities, and emergency procedures, and it's intended to set the tone regarding the company's commitment to safety.
Their main training focus is on fall production, so subsequent videos cover ladder safety, fall protection on framing, fall protection in roofing, PPE, and accident reporting.
Workers are informed to report unsafe conditions, as well, to their foremen.
The videos are in English, but company employees are assigned to help with translation as needed. Many of the foremen are bilingual. Some, but not all, safety documentation provided to employees is bilingual.
Mr. Potter stressed that Morton's Buildings didn't want to assume that the temp agency had provided orientation and training. They prefer to do this themselves.
Mr. Potter also reported that they address safety using a weekly planning tool, which includes a job hazard analysis that is updated each day as needed.
Every task is assigned a risk. This is reviewed with all workers, including temp workers onsite, and all workers, including temp workers, sign off on the weekly planning tool, and he stressed that it is important that temp workers become part of the team.
Next we heard from Mr. Ballwanz, who reported that their subs use temporary agencies to engage a range of skilled tradesmen -- for example, electricians, plumbers, steamfitters.
The temporary workers need to bring certificates of qualifications for their trade and evidence of training to prove that they are qualified. Clark Builders Group relies heavily on the temp agency to provide skilled workers who have had health and safety training, e.g. hazard communication, hazard recognition, and so, they really rely on written documentation of training.
Every new employee to the jobsite includes temporary agency workers. They all go through an onsite safety orientation, and this includes information about how to report both injuries and hazards and emergency evacuation.
They require that there be an interpreter on the jobsite at all times. Temp workers, like employees, are involved in daily huddles and weekly toolbox talks.
The weekly toolbox talks need to be provided in language that workers understand and be documented.
The temporary agency, in his case, usually provides the PPE and fit testing. The temp agency makes routine visits to the site to check on their people and addresses PPE maintenance. That was in response to the question, if the temp agency is provided PPE, who is assuring the maintenance, and in some cases, however, he said the host employer provides everything.
Mr. Potter, on the other hand, reported that Morton Buildings provides PPE with the exception of prescription lens goggles for temporary workers.
Tom Marrero reported that Tradesmen's International provides basic PPE goggles, hardhats, but more specific PPE issues are laid out in the contract between the temp agency and the host employer.
Both of the employers there reported that respirator use in their business is rare and is really treated as a special issue and focused on.
If an accident occurs, information about the injury and the accident investigation is shared with the temp agency.
Both Mr. Potter and Mr. Ballwanz reported that when an incident occurs, they do investigations with all the parties involved, including the temp agency, if possible.
Tom Marrero reported that, if a temp agency is not there to go out on the investigation, which often happens, they will, at the very least, get the report.
In response to a question about the value of temporary agencies, both Mr. Potter and Mr. Ballwanz reported that the use of temporary agencies and workers is a crucial part of their business.
Health and safety responsibilities are included in the contract with temp agencies. It was not clear, however, whether these kind of contractual arrangements and kind of best practices were laid out in the written company health and safety program documentation.
When asked about challenges with temporary workers, Mr. Potter reported that it was a lack of commitment to the company. He also identified the problems that workers who are hired out of the residential construction sector are not familiar with fall protection and there really needs to be clear communication about the need for fall protection and training.
Acknowledging the need for shared responsibility and communication, Mary Lynn of OSHA asked the host employers about temporary agency involvement after the temporary workers come to the sites.
Mr. Ballwanz reported that they usually see the temporary agency staff onsite at least once a week to monitor their employees.
Mr. Potter reported that they work on over 6,000 sites per year; it's hard to get temporary agencies onsite, since the crews travel long distances throughout the country, and that it's difficult at times to coordinate jobsite visits.
Scott Schneider suggested that it would be useful to have a model template for what should be included in the initial health and safety orientation that would focus us on policies, rights and responsibilities, reporting, and company philosophy rather than hazard-specific training in the initial orientation.
Both employers acknowledged that temp workers are treated differently onsite and that it can be challenging to integrate them into the team, as it with all new employees, and they acknowledge that there are challenges for both the full-time workers and the temp workers.
In response to a question about OSHA 10 cards, Mr. Potter reported that they ideally strive to have all their workers have OSHA 10 cards, but it is sometimes challenging to keep this up.
They have internal trainers and their regional managers all have OSHA 30 training.
Mr. Ballwanz reported that they do offer OSHA 10 free of charge. The drawback to the temp agency workers, as well as their own workers, the drawback is that the temporary agency has to pay for the time, which sometimes they do.
Morton's Buildings pays workers to take the OSHA 10. Morton's Building reported that they actually cover the time and pay workers who are taking the OSHA 10.
There was further discussion about how OSHA 10 is important, but it covers only the basics and is not enough.
When asked about hazard reporting, Mr. Potter reported that temp workers were actually more likely to report hazards than permanent workers. One reason, he felt, was that because they're working for a different employer, they're not likely to jeopardize their bonuses.
Other reasons given were recent training on hazard reporting and lack of familiarity with hazards and standard operating procedures.
After this discussion, the workgroup addressed several additional topics and potential next steps.
Eric Kampert of OSHA read the request from Dr. Michaels that the workgroup -- it's really a charge that the workgroup provide recommendations to OSHA on what additions need to be made to OSHA's guidance on illness and injury prevention programs on protecting temporary workers or subcontractors.
Peg Seminario suggested that the workgroup really work -- proceed to develop specific language that could be included in OSHA's guidance on illness and injury prevention programs, and this would be a very concrete task for the group to pursue.
NACOSH has also been asked to work on this, and the two temporary workgroups should collaborate through emails and conference calls before the next meeting, and it was suggested that this be raised as a recommendation for the full ACCSH group to consider.
It was suggested that we start by reviewing the section on contract workers and the ABSI Z10 standard as an example of incorporating language on temporary workers and health and safety program guidance.
Tish Davis raised the need for better data on temporary workers, stating that ideally our record keeping rules could be changed to include additional information the employment status of injured workers and clarify what denominator data should be used in generating annual recordable injury rates.
It was suggested then that OSHA's new record keeping rule requiring reporting of hospitalizations and amputations would be a good opportunity to pilot collecting data on the employment status of injured workers.
This could be collected both in the online reporting and phone reporting system.
The need to include BLS in discussions about how to improve data on temporary workers and subcontracted workers and other work arrangements was also raised.
Peg Seminario reiterated, I guess, the need for shorter translated versions of temporary agency materials geared -- that would be geared for workers rather than the current materials which are geared for employers.
Mary Lynn of OSHA reported that they are working on a piece specifically for workers, and she also indicated that OSHA is interested in any suggestions regarding ways to get information out about record keeping requirements to both temp agency and host employers.
I'm coming to an end.
Jeremy Bethancourt underscored the need to broaden the temporary worker initiative to address other misclassified workers on construction sites. For example, piece workers and phase workers on a site where they do only one portion of a job and leave. They are not independent contractors, nor are they employees of a temporary employment agency. They are actually hired as employee by the contractor but treated as though they are an independent contractor, which is an issue for wage and hour, OSHA, and workers compensation, and stressed that OSHA does have a role in this issue.
The need to involve the DOL wage and hour division in the temporary worker workgroup was also raised because of the misclassification of workers who are in reality temporary worker of a contractor and that the work duration is temporary.
Where contractors misclassify may very well be an issue for wage and hour, but it is OSHA who should be working to ensure that there is safety and training provided to those same workers.
And Peg Seminario suggested that this could be a good opportunity for OSHA and Wage and Hour to work together.
We ended the meeting, you know, extending our thanks to Mr. Potter and Mr. Ballwanz for their willingness -- it was a very open and, you know, honest discussion, we felt, and that -- for their willingness to participate in the meeting and the information they provided.
MR. STAFFORD: Thank you.
Anything to add, Tom or Jeremy?
MR. BETHANCOURT: No, I think Tish -- we covered it all. We really wanted to make sure that the notes were extensive, because we did recognize that all members were not going to be in the workgroup. So, that's why we really focused on making -- a lot of information.
MR. MARRERO: I just have one suggestion, that for future meetings, that we have more than just two hours. I mean, that meeting easily could have went four hours yesterday and been very, very meaningful, you know, so -- I mean, it was meaningful, but --
MS. DAVIS: Yeah, if we're going to have these breakout groups where we're not all going to a meeting, it's silly to come into Washington for two hours for the day. We could have spent more time in our workgroup, working on, you know, some of the issues that we wanted to proceed with.
MR. STAFFORD: Okay.
MS. DAVIS: I do think there are several -- for the record, there are several recommendations or motions we'd like to make that kind of evolved out of the first one, and the first, I would move -- Jeremy and Tom, chip in -- is that the ACCSH Temporary Worker Workgroup proceed to develop specific language on protecting temporary workers that can be incorporated in the OSHA guidance on illness and injury prevention programs and that we work with the NACOSH temporary worker workgroup in this effort.
MR. BETHANCOURT: We thought that we could do, you know, conference calls and things like that in between the next in-person meeting to try to develop a little bit ahead of time documents. That's something we're able to do.
MR. STAFFORD: Well, I think, Lisa -- I mean, I'm sure that we can have -- they can coordinate meetings between now and the next meeting with NACOSH's workgroup, or at least the co-leads, right? There's no problem with that.
MS. WILSON: Lisa Wilson, ACCSH counsel. I think OSHA said yesterday that they could definitely explore coordinating with NACOSH.
MR. STAFFORD: Okay.
So, Tish, that was in the form of a motion.
MS. DAVIS: Yes.
MR. BETHANCOURT: I second.
MR. STAFFORD: What she just said.
All right. So, do we need to reframe that for you, Lisa?
MS. WILSON: I think I got it.
Letitia moved that the ACCSH Temporary Worker Workgroup proceed to develop language on temporary workers for the I2P2 guidance and work with the NACOSH workgroup on temporary workers.
MR. STAFFORD: Jeremy Bethancourt seconded. So, we have a motion and a second.
All those in favor, signify by saying aye.
(Chorus of ayes.)
MR. STAFFORD: Any opposed?
MR. STAFFORD: Did you say there was another?
MS. DAVIS: There's two more. The second recommendation which we referred to is that, in implementing the new reporting requirement for work-related amputations and hospitalization, OSHA should pilot collecting information on the employment status of injured workers.
So, that was a recommendation, that as long as they're collecting these new reports, if they try to get information as to whether or not the injured worker is a employee of a temporary agency, a subcontractor, or an employee.
MR. STAFFORD: Okay.
MR. BETHANCOURT: We didn't even know if that was something that they could do, which is why we wrestled with the language, even, of saying pilot, it's not mandatory, it's just trying to get information, background as to why we chose the wording that we did.
MR. MARRERO: On a volunteer basis.
MR. BETHANCOURT: On a voluntary basis to try to collect data.
MR. STAFFORD: Cindy, did you have a comment?
MS. DePRATER: Yes. Cindy DePrater, employer rep. Was there any discussion around who would be reporting that? Would it come from the temporary agency?
MS. DAVIS: My understanding is, under the OSHA record keeping, that it's the employer that's responsible for maintaining the OSHA log that's required to report. So, in most cases --
MS. DePRATER: -- it would be the temporary agency.
MS. DAVIS: No. It's the host employer who is responsible.
MS. DePRATER: Actually, I'll tell you, it's different across the board where we hire temporary workers. Depending on the supervision and the insurance requirements, believe it or not, they -- a lot ours report back to the temporary agency.
So, that's why I'm asking the question. Did they discuss that?
MR. STAFFORD: Cindy, can you define what the insurance requirements would be, because I mean, the record keeping would be different from the insurance requirements.
MS. DePRATER: Yeah, they're very different, absolutely, they are, but certain jobs will require that the temporary agency cover their workers for workers compensation. It has nothing to do with record keeping.
MS. DAVIS: So, the requirement to report hospitalization and amputations applies to the supervising employer, which in most cases, we heard at our last meeting here, is going to be the host employer.
In some cases, when the temporary agency -- Steve, I'm looking at you. You know all this. If the temporary agency has a supervisor onsite, then the reporting obligation shifts to the temporary agency.
But the idea is, when people are filling out either a form online, reporting a hospitalization or an amputation, or calling in that OSHA attempt, on a voluntary basis, at least, to assess whether or not it's a temporary worker, an employee, or a subcontractor, so to try to collect that information, cause we need more information.
MR. STAFFORD: Okay. So, we have -- as I understand it -- I've kind of lost track here for a second.
We have a motion and a second.
MS. WILSON: Who seconded Letitia's motion?
MS. DAVIS: I don't think --
MR. BETHANCOURT: I did the first one. I shut my mouth this time, or at least I tried.
MS. WILSON: Okay. And the second motion on the floor is that ACCSH recommend that, in implementing the new reporting requirements for serious injuries and illnesses, OSHA pilot including information on, you know, the temporary or permanent status of the employees -- employment status.
MR. STAFFORD: Jerry and then Palmer.
MR. RIVERA: Jerry, employer rep.
Just as a point of clarity, the new rule for record keeping that's done -- are we recommending to include that there or as a separate initiative? What's the actual intent that we're trying to create a motion on?
I just want to make sure that we're not trying to -- I don't know if we can do it anyway, but I don't think it's clear to me what we're trying to vote on by capturing that data, since that part of the rule has already been -- gone through the vetting process.
MS. DAVIS: That's why we used the word "pilot," because I don't think OSHA can mandate that employers report on the employment status of the workers when they call in the cases, but nothing is to stop OSHA from saying -- asking, you know, if you have the information and willing to provide it, can you respond to the following question, and that question would be, is this a temporary worker?
MR. RIVERA: Like an initiative, maybe.
MR. STAFFORD: Palmer?
MR. HICKMAN: I think it would be useful to those that weren't in the room to understand the background that drove us to the motion.
It seemed to be the collective position of the group there that it would be helpful to know if it was a temporary worker that was injured or was a permanent worker that was injured.
We also sort of got muddled with people that are designated as contractors when they're really employees of an employer, and that was where another recommendation came, maybe to try to give Wage and Hour -- to try to clarify, but I think the real intent of this non-mandatory recommendation is put this in as a category to be captured by phone, non-mandatory, voluntary pilot program, not changing the rule, it would be helpful to know the status of the worker, temporary or permanent.
The language, as written, might be unclear to somebody that's sitting by the phone saying what's the status of your employment, I'm an employee, or employed, you know, just -- we know what we meant and I think we've had that discussion here, so maybe that could be captured, permanent versus temporary worker.
MR. STAFFORD: Any other questions or comments on that?
MR. McKENZIE: Dean McKenzie with OSHA.
The idea of the pilot is interesting, but it would require a complete -- a whole new paperwork package to be submitted to OMB.
We can't -- you know, we had to do a paperwork package on the stand-down to be able to get a certificate to -- to do that. I think that would be an interesting lift to do that.
MS. DAVIS: Well, I assume you wouldn't suggest holding out moving forward. You know, I think this is something that should be on the -- you know, there is -- people are asking for new -- better data on temporary workers and the experience of temporary workers.
We need to explore ways to try to collect that information, and this was seen as a potential opportunity.
MR. HAWKINS: Tish, could you just restate your motion as being that, as recommending to the agency that they pursue ways to categorize injuries and illnesses to temporary workers? I think that's really what you're --
MS. DAVIS: You mean more broadly than saying in the --
MR. HAWKINS: Exactly, yeah.
MS. DAVIS: I could.
MR. HAWKINS: I think that's something that would probably pass better and give the more options, too.
MR. STAFFORD: All right.
Well, let's help Tish come up with the language, then. What's the motion?
MS. DAVIS: So, ACCSH recommends that OSHA explore ways to collect better data on the employment status of injured and ill workers.
MR. STAFFORD: So, that's the motion. Do we have a second?
MR. HAWKINS: Second.
MR. STAFFORD: All right. So, we have a motion.
MS. WILSON: ACCSH recommends that OSHA explore ways to collect better data on the employment status of injured and ill workers.
MS. DAVIS: I think the caveat is employment status is temporary versus permanent.
MR. PRATT: Mr. Chairman, point of order.
MR. STAFFORD: Please.
MR. PRATT: Am I mistaken? Was there a second to Tish's original motion?
MR. STAFFORD: Not the original, but Steve seconded the latest motion, which I'm going to ask Lisa to read again so that we're all clear on what the motion is.
MR. PRATT: There was not a second -- so, we don't have a motion on the table.
MS. WILSON: The motion is that ACCSH recommends that OSHA pursue -- explore or pursue? -- explore ways to collect better data on the employment status, i.e. temporary or permanent, of injured and ill employees.
MR. STAFFORD: So, the motion is made. We had a second from Steve. No more discussion. All those in favor, signify by saying aye.
(Chorus of ayes.)
MR. STAFFORD: Any opposed?
MR. STAFFORD: Tish or Jeremy, one more motion?
MR. BETHANCOURT: I'm not sure it's a motion that anybody would think we should move forward on, but I'll continue to point out that I think that the temporary worker initiative does need to be broadened into including those workers who are being misclassified since those workers are not being afforded the protections by a lot of employers, and so, I'm not sure how we -- that's kind of where the discussion might be, where we were talking about the fact that, you know -- we said it right here.
I think we did a pretty good job in explaining that we do have a misclassification of workers, and while that is a wage and hour issue, it is also a safety issue whereby those workers are not being afforded safety that that they should be being provided, and there should be some compulsion to get that safety training to those workers, in addition to wage issues, you know, cause we have workers comp issues, and that's where it was suggested that perhaps this would be a good opportunity for Wage and Hour and OSHA to work together on something.
So, looking for any kind of thoughts on that from the committee. We had several folks on the committee that were there for that dynamic.
MR. STAFFORD: Tom.
MR. MARRERO: Tom Marrero, employer rep.
One of the particular examples that we put here were piece workers, where these individuals are given a dollar amount to put, you know, so many fixtures, or however many, and truly, those individuals have an incentive to cut corners and disregard safety, because the faster they get it in, the faster they get paid and the faster they get out of there.
MR. BETHANCOURT: They are not contractors under the law. They aren't paying workers compensation wages. They literally are employees of the contractor who brings them in even for a temporary, finite time.
I know. We hire that type of worker, and we provide that training.
MR. STAFFORD: But they're employees or they're classified as independent contractors?
MR. BETHANCOURT: No, they are temporary employees, but they don't work for a temporary agency, so I guess that's where I think there might be an opportunity for us to try to broaden this to help at least provide information and guidance to the industry to say, hey, guess what, those are actually employees. They're piece workers, but they're employees that you should be providing training to.
MR. STAFFORD: But in your instant, if you're hiring them and they're part-time employees, I'm assuming, then it's your obligation to ensure that you're training them, correct? I mean, I'm not understanding the point that we're trying to make.
MR. BETHANCOURT: But it doesn't occur. It does with us.
MR. STAFFORD: Right.
MR. MARRERO: But they're treated as independent contractors.
MR. BETHANCOURT: They're treated as independent contractors.
MR. MARRERO: That's the problem there.
MR. BETHANCOURT: They're treated as independent contractors, and they don't know any better, because there's no -- I mean, but you know, we've talked about the fact that, if they're going to break the law, they're going to break the law anyway.
MR. STAFFORD: Cindy and then we'll go to Kevin.
MS. DePRATER: Cindy DePrater, employer rep.
Jeremy, a question. If they're being paid by the piece and then you take them under your umbrella and you safety train them, who are they going to listen to?
At the end of the day, are they still being paid by the piece -- which they are, we know that. How do you balance that? How do you balance that in getting them to listen to your safety regulations, say slow down, do the job right versus I need you to get this in right now so you can get paid. I know it's a dilemma. How do we balance that?
MR. BETHANCOURT: It's a never-ending struggle, and that's why I was looking to the committee to think about this dilemma that we do have in the industry.
MS. DePRATER: Were there any thoughts from the two contractors? Did that come up?
MR. BETHANCOURT: We didn't have enough time. We could have had so much more discussion.
MR. MARRERO: That came up in the last five minutes of meeting.
MR. STAFFORD: Kevin.
MR. CANNON: Kevin Cannon, agency employer rep.
I was going to say, if I'm not mistaken, this discussion has come up before, and I think it was mentioned that it was outside of the scope of the temporary worker initiative. Is that correct?
MR. McKENZIE: Dean McKenzie.
It is out of the current scope on temporary workers. There's a number of different types of temporary workers. A union hand that's called out for a two-day call is a temporary worker. You know, he's not there for the duration of a project.
He comes out, does one circuit, does one task, and moves on. You know, that's pretty temporary in my eyes, but the emphasis of the current OSHA initiative is strictly on, you know, these defined parameters.
There's potential to expand it eventually, but it has not been done yet.
MR. STAFFORD: Jerry.
MR. RIVERA: I guess I'm trying to see where I saw that. Dr. Michaels recommends -- I must be from the south.
MR. RIVERA: I thought I did see, you know, Dr. Michaels addressed that group to consider for the I2P2 not just the temporary subs. What's the other term that he used?
MS. DAVIS: The direction was that we consider guidance on illness and injury prevention programs on protecting temporary workers or subcontractors.
MR. RIVERA: I don't know if even the workgroup is clear on the definition of that temporary worker.
I mean, if we call it a staffing employee, maybe we could pin that down, but I think there is confusion still of what constitutes a temporary worker, because Jeremy is right, there is what we call a 1099, somebody comes onboard, you give him a 1099 for -- and that's not being confined to the drywallers, which that's what we saw in the past. It's been expanded to all trades.
So, it's currently practice out there, even though we don't want to admit it, but it is a big sector.
MR. STAFFORD: Right. I mean, I think, in the construction industry, there's two million workers that are classified as independent, self-employed people, and I think you're right.
I mean, I think the confusion in my mind -- I've always been looking at this discussion that we're talking about, a temporary worker, in this instance, is paid by someone but works for somebody else. It's not the boilermaker that comes out of the hall for a couple days to do a boilermaker job, that works for a boilermaker employer.
That's how I've kind of separated it in my mind. It may be the wrong way to look at it, but that's -- you know, that's kind of what I thought we were talking about, someone that's working for me that is paid by Tom, is my definition of a temporary worker and what we're talking about. Is that --
MR. BETHANCOURT: That's correct.
MS. DAVIS: I think that's what our workgroup has been charged with looking at. I think what Jeremy is saying, is bringing to the table, is not letting us all forget that there is this whole other group of people that needs to be addressed.
MR. STAFFORD: I agree. I mean, I think that that's true. I think for the sake -- to keep our sanity and try to get our arms around this, that independent -- folks that are self-employed, independent contractors are different than what we're trying to deal with with the temporary worker issue.
MR. BETHANCOURT: In a lot of areas, too, it's not just workers who are hired, and so, if we're going to -- if we're going by the definition of somebody who is hired by somebody else, there's subcontractors, there's sub-sub-sub-sub tiers.
It just goes all the way down the line, where the person who is the actual employer may not even be onsite, and they may literally be acting like a temp agency and they're not a temp agency. I mean, there's a whole other pile of problems.
What I guess I was really pointing out with this is this is my recommendation, that -- that OSHA consider expanding the temporary worker initiative to this, whether now, a year from now, but that they do -- they should look at this so we don't forget about that other part of this. Maybe it's after we get our minds wrapped around what we're doing.
MR. STAFFORD: It's up to the workgroup if they would like to form a motion around that. I would advise against it.
I think that, obviously, it's something that we need to be cognizant of, but I don't know if we need an official recommendation that we need to be doing that.
MR. BETHANCOURT: It's on the record.
MR. STAFFORD: All right.
MS. DAVIS: Can I just add one more thing? I liked Scott Schneider's idea of working to craft what are the elements of a good initial health and safety orientation, whether it be by the host agency or by the host employer or the temporary agency. We are working on this in Massachusetts.
So, I just want to -- I don't want to make a motion, but I think we shouldn't let it fall off our agenda for the temporary worker group. I think it's a good idea to try to craft what we think are key elements that need to be addressed in an orientation.
MR. STAFFORD: Okay. There's one thing you said in your notes, Tish, that I didn't understand, just for my own edification. You said that one of the employers yesterday said they use a temp agency or temp worker for 90 days and then they hire that person full-time?
MS. DAVIS: I mean, a lot of times, when you hire with a temp agency, you sign something to say you're not going to hire them, I mean at least in office work, I know that.
MR. STAFFORD: Tom?
MR. MARRERO: I don't want to say we frown upon that, but we make certain exceptions with our clients. We work something out with them beforehand, you know, so we typically don't operate in that way, but we like to retain all of our employees for the long duration. But we will make exceptions and we will craft certain different contracts to do the temp-to-hire for a particular client.
MR. STAFFORD: Thanks very much. It sounds like you did have a nice discussion.
So, I think, in closing this discussion, we need a motion to accept the workgroup report.
MR. MARRERO: I make the motion.
MR. STAFFORD: Do we have a second? We have a motion and second to accept the Temporary Worker Workgroup report. All those in favor, signify by saying aye.
(Chorus of ayes.)
MR. STAFFORD: Any opposed?
MR. STAFFORD: Okay. Great. We will break until 2:30.
MR. STAFFORD: Call the meeting back to order, please.
So, let's proceed with our workgroup reports. The next workgroup to report out is the outreach and training workgroup, co-led by Jerry and Kevin and Roger and Cindy. I think Roger is going to be doing the report?
TRAINING AND OUTREACH WORKGROUP REPORT
MR. ERICKSON: Roger Erickson, employee rep.
The Training and Outreach Workgroup met on December 3, 2014, to receive an update on the 2014 fall stand-down campaign, safety leadership module, including an update on the safety climate workshop, and Quick Takes promotion.
The members of the committee that were present: employer representatives Cindy DePrater, Jerry Rivera, Kevin Cannon; the employee representatives were Pete Stafford and Sarah Coyne, plus myself.
The Training and Outreach Workgroup meeting was called to order by Jerry Rivera at 1:00 p.m. The meeting commenced with self-introductions by Training and Outreach group members and members of the general public.
The first presentation was conducted by Jessica Bunting from the Center for Construction Research and Training, CPWR. The update was on the 2014 fall stand-down campaign.
Ms. Bunting reported that this was the second year that the fall prevention campaign has been conducted.
Based on the success of this year's campaign, OSHA is recommending that the fall prevention campaign be conducted in 2015.
The number of participants that reported participation in the event were 770,193 employees. This number does not account for the over 600,000 participants from the United States Air Force.
In addition, the largest participants reported were in the commercial construction and other construction categories.
Some of the activities reported during the fall prevention stand-down were training, toolbox talks, posters, and handouts.
The presentation was titled "Analysis of OSHA's 2014 National Fall Stand-Down Certificate," and it was available as a handout.
Should this event be conducted simultaneously with the 2015 Industry Safe Week, or should we continue this as a separate event?
Can we conduct this type of campaign quarterly rather than annually?
If we decide to do it quarterly, what topics would be relevant and what title should we use so that everybody understands the purpose of the activity?
The other bullet point was: Should registration be accomplished with a mobile application?
Our second presentation was on safety leadership.
This presentation was originally intended to be presented by Mr. Wilson Yancy, vice president of environmental health and safety for Quanta Service.
Due to an unforeseen circumstance, Mr. Wilson could not present, and Mr. Jarrett Quoyle, director of safety and health for Utility Service Group of MasTec North America, conducted the presentation on the topic.
Mr. Quoyle gave a high-level review of the OSHA strategic partnership agreement between OSHA and ETD construction contractors, the IBEW, and Trades Association Partner #325, specifically the safety leadership curriculum.
The report revealed that over 300 instructors and 6,500 supervisors have been trained.
That curriculum summary includes: supervisors training on accident reduction technique, also known as START; on the front line, foremen to speak up, listen up; job hazard analysis techniques; pre-job briefings; conducting effective safety meetings; site inspections; and skills assessment.
More details are available on the handout titled "Executive Summary, Supervisory Leadership Skill Outreach Training Course."
On this same topic of the safety leadership module, Mr. Pete Stafford gave a brief update on the eight leading indicators of safety climate.
Mr. Stafford reported on the supervisory leadership component goal of a possible three-hour module being introduced into the OSHA 30-hour course.
The planned project activities are to assemble the curriculum development team during the first year; the second and third year would be used to revise or update the modules.
The fourth and fifth years would be focused on the development of train the trainer material.
More information is available on the handout titled "Eight Leading Indicators of Safety Climate."
The Quick Takes promotion was conducted by Jim Maddux, director of the Directorate of Construction. Mr. Maddux reported that there are currently 78,000 subscribers, but OSHA would like to reach the milestone of 100,000 subscribers by the end of 2015.
Mr. Maddux addressed the outreach and training workgroup for the purpose of gaining support on that initiative.
Members of the general public in attendance was recorded via sign-on roster.
That concludes the Training and Outreach Workgroup report. We adjourned at 3:00 p.m.
MR. STAFFORD: Thank you, Roger.
Any other comments from any of the co-leads? Anything to add?
MR. STAFFORD: Any questions or comments to the report?
MR. PRATT: Not about the report, but I'm just curious if there was any discussion about the shortening up of the two-hour segment, the first segment in the 10-hour training program that we discussed the last time we were here, and I thought we had agreed that we were going to follow up and have further discussion and possibly a solution to reducing the two hours to possibly an hour. What happened?
MR. STAFFORD: That was not on the agenda for the workgroup yesterday, and I'll ask OSHA to clarify if I'm misspeaking here, but OSHA is proceeding with our recommendation to revise the two-hour intro and are now in the process of piloting the program before they would announce officially that that change has been made.
So, as far as the committee is concerned, we made the recommendation, OSHA has acted, they're piloting the program, and we're waiting for them to make the official announcement that that requirement has now been modified.
MR. PRATT: Okay. Thank you for that.
Again, Don Pratt, employers.
Can we have some kind of a timeframe, something that we can look at, because we're all out there training, and it's really cumbersome to work with that two-hour module.
MR. STAFFORD: I'm going to look to Dean, or Jim's in the back.
I don't think we have anyone from OTI here to tell us specifically, but I would ask, Jim, or if we could -- if we could answer that question for Mr. Pratt on when they're thinking about finalizing the --
MR. MADDUX: I'll see if I can get an answer.
MR. PRATT: Thank you.
MR. STAFFORD: Yes, Palmer.
MR. HICKMAN: Palmer Hickman, employee representative.
I just wanted clarification on that.
So, there was a push to reduce the amount of time that you would cover things about OSHA and workers rights and all that?
MR. ERICKSON: There was. It's the intro to OSHA.
MR. HICKMAN: Could you tell me where that push came from?
MR. STAFFORD: It came from -- through this group, and it may have been others, but I don't know. I mean, if the committee can help me out, this has been a couple of years in the making.
But there was a push generally because there was a thought amongst the industry for those folks that are doing good training taking two hours to explain your rights isn't necessarily, you know, required, as long as you cover the learning objectives of what that is.
Many of the instructors in the industry want to move on and actually start training about the hazards and not having to spend two hours to deal with the intro module. That was the impetus, the time change.
MR. HICKMAN: I'm not going to Monday morning quarterback. I just was trying to understand how those workers needed to know less about -- okay.
MR. STAFFORD: We'll go to Steve and then Roger.
MR. HAWKINS: Palmer, I'm a card-carrying person who delivers the training, and I think the consensus when we made that recommendation, and I would even agree with it -- I saw that. You can really tell a worker what their rights are in less than two hours, and I've done the training many times, and I believe you can, effectively, and I think that was kind of the consensus of it.
I think it was pretty much a unanimous decision of the board that you could, but to keep those tenets of that worker training place so that you did cover discrimination, you did cover, you know, imminent danger, whistleblower, you did cover all those things, and that was missing before in the 10-hour, and then it went to two hours, and so, that was kind of where we came from.
MR. STAFFORD: Roger?
MR. ERICKSON: Roger Erickson, employee rep.
I concur with what the gentleman just said. There were other components that are covered elsewhere in the 10 hours, and that was another --
MR. STAFFORD: Kevin?
MR. CANNON: It's been covered.
MR. STAFFORD: Any other questions or comments on the report?
MS. DAVIS: Wasn't there a large discussion, also, about the OSHA refresher course?
MR. STAFFORD: There was a discussion on that.
We actually had put that on the agenda for the workgroup, but we withdrew it, based on our conversations with OSHA, and the rationale is this, that OSHA has heard that -- our recommendation that they go back and take a look at the 502, and they could do that on a staff level in terms of figuring out how that program would be modified and did not formally need ACCSH to do a walk through each of the Power Point slides in the 502 like we did on the intro, and they're going to be handling that on the staff level.
With that said, we know this is important, and this applies to anyone in the audience that's interested in the 502 or has anything to say about it. Jim Maddux has asked that anyone that has any opinions about the 502, suggestions for how that could be modified, please submit that directly to the DOC, to Jim, and I'm looking at Jim to make sure that I'm not misspeaking here, but that was the way it was left.
So, they've heard our recommendation and they're proceeding at the staff level to take a look at modifying the 502.
I just wanted to add, myself, you know, the leadership training is -- that we are now developing with what I view -- I haven't talked to anybody in the industry that is not very supportive of developing a leadership component embedded in the OSHA 30, because whether we like it or not, the OSHA 30 is the standard for supervisory training in this industry, and the power of trying to embed something as an elective in the OSHA 30 that the industry is already using anyway, I think, has tremendous potential.
There was one thing that I was a bit frustrated about yesterday. We've gone out at great lengths -- and Dr. Michaels said it this morning -- we're looking for a commitment and we're looking for a commitment from OSHA, and I believe that I have the commitment from OSHA, but it's very important that we continue down this road to ensure that there is that commitment, and we had Mr. Thompson on the phone yesterday, and to try to be sure that that commitment is made, we have put together a curriculum development team that includes membership from the Directorate of Construction and members from OTI, so as we're developing this module, we're doing it hand in hand with the agency.
So, at the end of the day, a year from now, when we're ready to pilot this thing, I am convinced that it will be effective, and we're going to go forward in implementing this as an elective in the OSHA 30.
I don't want to hear, like I did yesterday, that the OTI is going to think about it, they're going to look at it, consider it, they might do it, and I'm, again, looking to the folks in OSHA.
We've got this commitment up front that this is going to happen, and I'm asking that -- and I've asked this before.
We have not a lot of participation from the folks at the OSHA Training Institute in these meetings, but I'm viewing this, and I want this on the record, that I've got a commitment from this agency that if this elective is proven effective, that they are going to incorporate it as an elective in the OSHA 30, and I would hope that OSHA and the folks at DOC will help me ensure that that's going to happen.
So, I needed to say that for the record, because I don't want this wishy-washy, we might do it, we might think about it kind of attitude. We're looking for a commitment.
The industry, everybody around this table is committed. I don't know anybody that's not committed that I've talked to about the concept of doing this, and we would like the commitment from OSHA, and so, I'm going to leave it at that.
I want that on the record, that we're looking -- that OSHA is not going to backpedal on us when we have this thing developed. That's why we've gone to great lengths to be sure that OSHA is closely involved with us in the development of it.
So, I would just like to leave that and be sure that it's on the record, and I would have this separate conversation with Dr. Payne if he was here.
Maybe we'll get Hank to one of these meetings sooner or later, at some point in time.
Any other questions or comments?
MR. MARRERO: This is Tom Marrero, employer rep.
I just want to kind of throw this out to the committee as a discussion topic, I guess.
I don't know if this has ever been brought up in the past, but this was brought up in our workgroup yesterday about potentially making the OSHA 10 almost like -- like a license or a credential to even work in the construction industry, and I just kind of wanted to get everybody's kind of feedback and kind of just see where -- what you guys' thoughts would be on possibly doing something like that.
MR. STAFFORD: Making the voluntary program mandatory?
MR. MARRERO: There's other industries -- you know, for instance, you know, if you want to be a cosmetologist, you have to have a cosmetology license. If you want to be in real estate, you have to have a real estate license.
I think it would be of great value, you know, for all parties involved, employers and employee reps here, to have everybody in OSHA, you know, at a minimum, a foundation of safety. Just throwing it out there.
MR. STAFFORD: I appreciate that. You know, I think, conceptually, that's something that I think most of the industry is doing, whether it's mandatory or not, but that would be an issue that would require, I think -- and I'm looking to OSHA again -- that would require some kind of separate proposed rulemaking, you know, could be something potentially -- if OSHA was going to proceed with the program standard -- I'm not sure how to do that at this level, is what I'm saying, Tom.
Don and then Eric.
MR. PRATT: In Michigan, we actually have a simplified version of this. We have continuing education requirements for our residential builder's licenses.
So, if you're going to be a residential builder, you have to have three hours of continuing ed, which safety is one module of that. So, over a period of a few years, you're going to be able to cover, really, everything that's in the 10-hour, and we've been very successful in doing that.
It's really the first time -- we started this about five years ago. It's really the first time that we've ever reached out and talked about safety to our members, so -- and it's not just our members. It's everybody that's licensed, all 64,000 licensees in the State of Michigan. So, it's a huge undertaking.
In addition to that, we have a situation where, in order to even sit to take your exam at the state to become a builder, you must have eight hours of education in safety, and of course, our safety would be MIOSHA.
I happen to teach that class, and it's very intense, it's very involved, and it's really much, much better than the 10-hour OSHA training program, but it's what we have, so -- but we've been -- we've been working on that very diligently, and MIOSHA is really onboard with us on developing these programs, because -- and we've done it all with private funding.
We didn't use any government money, so -- but states are -- some states are already doing this, if they have licensing.
MR. STAFFORD: Thank you.
MR. ERICKSON: Yes, Mr. Chairman. Roger Erickson, employee rep.
Tom, in answer to your question, just an FYI -- I can't speak for all of the crafts in the national building construction trades, but the International Brotherhood of Boilermakers has an exclusive referral system for our field construction locals, and to ride those applicable out-of-work list, that boilermaker, for a referral, has to have the OSHA 10 and then the OSHA 10 or the refresher every 5 years or they fall off the list, just FYI.
MR. STAFFORD: It's not a statute, by law, by OSHA, but it's really happening by the industry.
MS. DAVIS: Isn't it, in Nevada, required for --
MR. STAFFORD: Supervisors. Ten hours for workers and 30 for supervisors.
MS. DAVIS: And do we know anything yet about the -- how that's playing out?
MR. STAFFORD: I don't. That law was passed in 2008.
Any other questions or comments?
MR. STAFFORD: Okay. We would like to entertain a motion to accept the workgroup's report.
MR. ERICKSON: So moved.
MR. STAFFORD: We have a motion and second. All those in favor, signify by saying aye.
(Chorus of ayes.)
MR. STAFFORD: Any opposed?
MR. STAFFORD: Thank you.
Our last workgroup report is health hazards prevention through design and emerging issues.
Christine is going to be giving the report. Thanks, Christine.
HEALTH HAZARDS, EMERGING ISSUES AND PREVENTION THROUGH DESIGN WORKGROUP REPORT
DR. BRANCHE: Christine Branche, Federal rep, NIOSH.
With apologizes -- this is my first time in this capacity on this committee, and belatedly understood that there were minutes expected. So, I apologize for the brevity, but perhaps that's good at this hour.
My colleagues Chuck Stribling, Donald Pratt, and Steve Hawkins were in attendance, and we had two other visitors with us during the session yesterday.
George Kennedy of the National Utility Contractors Association did a very nice, lengthy, and descriptive presentation on the hazards associated with horizontal directional drilling.
It is our understanding that this particular issue was placed on the agenda given that there are problems that are emerging with directional drilling. They seem to be outpacing -- I wasn't sure if it was the regulations or the standards.
I don't remember what word was used in the description, and George began -- Mr. Kennedy began his presentation.
Basically, during our discussion, key issues emerged concerning the locator -- that is, the contractor who is tasked with locating the existing utility lines before drilling or digging commences.
We discussed that -- had quite a bit of discussion on that particular issue, and our discussion closed with the workgroup and guests agreeing on the following: that locators need better training, that better and more detailed maps are needed for existing utility lines, and that utility companies should step up to the responsibilities of being able to share information about where their lines are, and making that known to municipalities and others in a way so that contractors can have them readily available to them.
Mr. Kennedy, further on, described that best practices and other helpful information are available at the website given here, www.commongroundalliance.com.
Do you think that captures our discussion about horizontal drilling?
MR. PRATT: Don Pratt, representing employers.
Just a couple of things. Christine did a great job, but the -- I learned a new term that I wasn't even familiar with before, and it's called potholes.
Now, in Michigan, potholes are things that we find in the road that we hit our tires and blow them, but now they have -- this term is to dig down and find the line that you're going to be going underneath or around or whatever.
Also, we learned that this is an 811 number. It's a national call number that has to do with -- when they get that number and somebody calls it, then they direct them to the correct state where the work is going to be done to relocate or locate, I should say, the lines that are buried in the ground, the utility lines.
Also, we talked about the industry developing safety procedures that are lacking at this time. We all felt that -- and George Kennedy emphasized this -- that we need to hold utility companies -- and Christine mentioned this -- more accountable for locating their lines that are buried in the ground, that sometimes we don't know exactly where they are when we're excavating.
So, that was a very important thing that he had mentioned to us, and then we also -- he asked, actually, us on this committee, the full committee, to -- if there's any conversation or anything that's going on out in the field that he or his organization should be made aware of.
I was not aware of anything, at least in the area that I represent. But is there anyone here that would have any information on horizontal drilling that is a concern for safety?
Now, what this whole thing is all about is what happened in Kansas City, and also, I brought up the fact yesterday that, in Royal Oak, Michigan, which is a suburb of Detroit, about half-a-mile from my home, they had an explosion where a house blew up because of horizontal drilling, and it killed the occupant of the home.
It blew out windows and structures within a four-block radius around that home. It was a huge, huge explosion. And what had had happened was that the drilling company had gone and penetrated and nicked a line.
It then -- the gas then followed the -- around the circumference of the pipe going into the service, the gas service into the house, and the gas started building up in the foundation, in the basement, cause we all have basements, and when it reached a level of where there was a flame, it exploded, killing the occupant of the home immediately and causing a lot of damage.
Matter of fact, this was probably a year-and-a-half, two years ago. It still isn't back together yet. They're still rebuilding some of these structures.
Now, the unusual part about all of that determination -- and I understand Kansas City was different, but in Detroit, in Royal Oak, the Consumers Energy people stepped to the plate immediately and took responsibility for it, which I thought was remarkable.
They usually don't do that, but -- so, that was a situation where we actually had them admitting that they were wrong, and they did everything in their power to correct the situation and rebuild that area.
So, the question I have for every, is there anybody hearing any of this horizontal drilling, any problems, any safety issues that we should be made aware of?
DR. BRANCHE: We had a very brief conversation about construction focus for health hazards.
Questions emerged on how focus for health could become confused with construction focus for safety, and we agreed that this is something that -- we agreed that marketing this would need to proceed carefully, and we discussed briefly, also, what the four health topics would be.
Would it need to be four? Could there be another number?
Clearly we need to talk about this in more depth at another meeting, but no decisions were made on this particular topic.
MR. STAFFORD: All right. Thanks, Christine.
I think that's been our struggle, in talking to Jim and the folks at DOC about this. I mean, this was a concept our dear colleague and friend Matt Gillen left the committee before he left, and I think we all recognize that we would like to do more on health hazards.
It's not a big enough focus in construction. I'm personally struggling with what exactly it is that we're talking about doing, and we had this conversation the last time, trying to understand, if we're doing something, is it an awareness campaign, is it an enforcement campaign, is it a training campaign.
I really think that we need to have some focus exactly what it is the agency would like us to help them with and, really, where this workgroup is going on the health hazards.
DR. BRANCHE: Mr. Chair, I will say that we had a few challenges with our meeting yesterday. Everybody was engaged, but I would say we had an illness, one of our colleagues was slightly I'll and was dismissed by me, and he feels better now, and so, I think this is a topic where I didn't come with all of my notes and I don't think we had Matt's original premises to deal with, and what I would like to recommend if my -- if my co-chairs agree is that perhaps we have a conference call between now and the next ACCSH meeting so that we can talk about this a little bit more, so that we can come to our next workgroup meeting with an agenda that's a little bit better developed for how we're going to walk through a couple of these topics so that we can have some specific recommendations for the committee as a whole.
I'm willing to lead that discussion or at least prepare for us to have a robust conversation if we can do that in a conference call.
MR. STAFFORD: I think that would be great, and I would like to participate in that, as well. I know we're going to run into issues in terms of having the full ACCSH on a call, planning this, I guess, but we could have the workgroup co-leads have a conference call to flesh out an agenda for the next workgroup meeting.
MS. WILSON: A workgroup can convene, either in person or by conference call, especially to plan a next meeting.
DR. BRANCHE: Just a point of clarification. So, if many members of ACCSH want to participate in that planning discussion, would that be in violation of FACA?
MS. WILSON: It's not necessarily a violation of you are purely doing planning for your next meeting and you're not making any decisions.
DR. BRANCHE: My proposal is that it be for planning.
MR. STAFFORD: It sounds like the answer to that is yes. Dean just said that, as long as we don't have a quorum -- I mean, I think that we have to be careful about this.
This is one of the reasons why we have workgroups that were not consecutive but concurrent, because of the issue of full ACCSH participating in these things. It kind of got us in a FACA issue, and I want to be sure, Lisa, that if 12 of us want to be on a call because we're interested in figuring out what we're going to do about health hazards, that that's not a problem with the agency.
MS. WILSON: We encourage, certainly, planning for your next workgroup, to make it better, and you know, why don't you involve us, you know, DOL, in planning that to make sure that there are no FACA issues.
DR. BRANCHE: So, am I convening this meeting?
MR. McKENZIE: Let us know and we'll put it together.
DR. BRANCHE: Thank you.
MR. STAFFORD: Any other questions or comments?
MR. STAFFORD: Okay.
DR. BRANCHE: That concludes my report, Mr. Chair.
MR. STAFFORD: Thank you, Christine.
MR. PRATT: Is there a motion?
MR. STAFFORD: Yeah.
MR. PRATT: Don Pratt. I will move to accept the report.
MR. STAFFORD: We have a motion to accept the report, and second. All those in favor, signify by saying aye.
(Chorus of ayes.)
MR. STAFFORD: Any opposed?
MR. STAFFORD: Okay. Great. Thank you.
MS. WILSON: Thank you, Mr. Chairman. I'd just like to enter some exhibits. I'd like to designate the slides on subpart V as Exhibit 11, the Temporary Worker Workgroup report as Exhibit 12, the sign in sheet from that workgroup as Exhibit 13, and the text of Dr. Michaels' charge to that workgroup as Exhibit 14, the report of the Training and Outreach Working Group as Exhibit 15, and the report of the health hazards group as Exhibit 16. Thank you.
MR. STAFFORD: Thank you, Lisa.
CHAIR REMARKS/PUBLIC COMMENTS
MR. STAFFORD: We have on the books two folks that have signed up for public comment. Travis Parsons. Where is Travis? Come on up, Travis. Travis is with Laborers' Health & Safety Fund.
MR. PARSONS: Travis Parsons with Laborers' Health & Safety Fund of North America, here in D.C., representing the Laborers Union, and really briefly, I just wanted to piggyback on Jim Maddux, since demolition came up.
A lot of people around the table may already know and work on ANSI A10 standards, which is the ANSI standards for the construction industry, that we are reconstituting a demolition standard, A10.6, and I'm going to be the chair, and I'm basically just, for information purposes, letting ACCSH know that that's happening, and anybody that wants to be on that subcommittee, what that entails is maybe a conference call or two, in-person meetings if you want to be there, electronic communication.
I would love to get the expertise around the table. Anybody that wants to participate, just give me their card, and I'll be happy to add you to that subgroup, and what has happened is that that subgroup has been kind of stagnant, for lack of a better word, for the last 8 to 10 years, and it was in jeopardy of going obsolete.
ANSI rules -- you have to update them every 10 years. So, we just took over chair about six months ago, and I'm reconstituting the committee, and we've also reached out to the NDA.
That came up earlier, the National Demolition Association, and they're very involved in the standard, too. It's more of a solicitation, I guess, for your help and encourage you to get on the committee. So, just hand me your card if you want to be.
MR. STAFFORD: I appreciate that, Travis. And what's the standard?
MR. PARSONS: A10.6. It's a demolition standard within ANSI, and it's for the construction industry and demolition.
MR. STAFFORD: Great. All right. Thank you, Travis.
Next is Don Head, who is with Balfour and wants to talk about temporary workers.
MR. HEAD: I attended the Temporary Worker Workgroup yesterday, the session, which was, you know, a phenomenal exchange of ideas. A couple comments that I had --
Some of the differences that I think were quite apparent in the two different gentlemen that came to speak -- and I was thankful for them to come and share with us.
One was Morton Buildings self-perform most of their work. That was clear when Mr. Potter was speaking, and then Clark Builders Group, obviously, is a general contractor that subcontracts most of their work.
So, we had two different perspectives that were being presented there, and I think that's a great thing. The more perspectives that we can bring into play, you know, the better picture we're going to have of how to try to effect some positive change.
I would also suggest that the workgroup -- respectfully suggest that they would engage with some subcontractors, and I can't necessarily help with that directly, but what I can do is offer a perspective from a general contractor that does engage at times with temporary workforce directly, and I don't think that the workgroup heard anything, really, on that yesterday from the two gentlemen.
It was mostly either self-performance or subcontractor.
So, you know, I don't know how to do that through the proper channels, but Kevin Cannon, Jerry Rivera -- certainly, they can -- they know how to get ahold of me very easily.
So, I'd offer to the workgroup, if there are specific questions that they have that didn't get addressed yesterday, please let me know and I'd love to, you know, help out with that.
MR. STAFFORD: Thank you very much, Don.
MS. DAVIS: I think we would welcome hearing directly from a GC who hired temp agency directly at a future meeting. That could be something on an agenda.
MR. STAFFORD: I'm sorry, Tish. The next meeting, we bring in subcontractors that use temp workers?
MS. DAVIS: This is a question for us. It depends on, frankly, how long the meeting is. If we have a four-hour meeting, you know, we might want to do that. If we have a two-hour -- it really is going to depend somewhat. But I think the idea put forward is that we could hear from subcontractors or we could also hear from a GC that hires temp agency workers directly.
The other piece that we haven't heard from in this group is that -- we've talked about in the past -- is hearing from people who represent temp workers, as well. That voice has not been at this table.
MR. STAFFORD: Go ahead, Jerry.
MR. RIVERA: Thank you to Don for making yourself available for that, but you know, as we continue that discussion on the subcontractor, that will be kind of a vital component to kind of hear the different type of contractors.
We heard the different type of GCs, but I think maybe we can capitalize on Mr. Head's ability to tie those groups together and bring examples of different subs, of what we know as subs, because apparently there is confusion of what is a sub, what is an employee, what is a GC, and how we operate.
So, it will definitely spice up the conversation.
MR. STAFFORD: That's just what we need, is a spiced-up conversation.
All right. Thank you.
MR. MARRERO: Don, I, too, want to thank you for bringing up the differences in the two individuals and how they operate, because it was very apparent that they operate completely different from one another, one being especially self-performing and the other one being a GC.
I would love to get more users or host employers or subcontractors to come in to speak on behalf -- but I just kind of want to throw it out there that getting the two gentlemen here that we had yesterday was a difficult task in itself.
I spoke with a lot of host employers that -- they were kind of afraid to come out here and speak on behalf of them being users, because they thought there might have been somewhat of a repercussion, per se, because they use temporary workers.
MR. STAFFORD: Don, thank you very much for being here, and your offer. I'm sure we'll take you up for that.
Scott, you're not on the list, but -- hurry up.
MR. SCHNEIDER: Scott Schneider with the Laborers' Health & Safety Fund of North America.
I would have liked to go to the health hazards workgroup yesterday, but because it was concurrent, I went to the temporary workers group, but I would like to be involved somehow in planning the next one, cause I think there's a lot of issues that --
MR. STAFFORD: In terms of health hazards?
MR. SCHNEIDER: Yes, because the health hazards workgroup -- I think there's two things that are going on.
One of them is OSHA put out this request for information about how do they handle -- how should we handle chemical hazards in the workplace, including construction, and you know, we're working on comments, obviously, that's due in April.
But then, secondly, we just finished up the ANSI Standard A10.49, which is all on how to handle, how to address chemical hazards in construction, and I think it's very innovative, and I think it could engender a lot of discussion about health hazards and chemical hazards, in particular, and so, I would like to get that on the agenda or maybe be part of the planning discussion.
And I don't know if that's feasible or possible, I don't know, given the FACA requirements or whatever, whether outsiders that are not members of ACCSH are allowed on those conference calls, but I would like to offer my availability to do that and help out with that workgroup.
MR. STAFFORD: Okay. I appreciate that. I don't see that that's a problem, but I'm looking at Lisa again to make sure that it's okay. You're in, Scott.
DR. BRANCHE: Christine Branche, NIOSH.
I understand one of the things that Mr. McKenzie explained yesterday was that one of the reasons why people who participate in the workgroup meetings sign in is so that if there is so that if there is a call or a meeting in between, that those individuals can be contacted to participate, and I expected that that would happen for this, and I think that Mr. Schneider is simply letting us know that he would like to be involved in that, as well, and I think that's -- given that I offered to help start this under DOC's direction, I think that's great to include Mr. Schneider.
MR. STAFFORD: Okay. Sounds good.
MS. DAVIS: I just want to follow up on the temp worker issue of collaboration with the NACOSH temp worker group, and if we can participate by phone in the temp worker workgroup call next week -- I mean, they were invited to participate in our meeting, and I think it should be reciprocal.
MR. McKENZIE: I don't know why you couldn't.
MR. KAMPERT: Eric Kampert with OSHA.
I was told by Michelle that -- Michelle Walker -- that you can participate in that, but in a listen-only mode, because it's -- I'm going to get that information to your workgroup, but it's going to be in a listen-only mode.
MR. STAFFORD: So, you'll be sending call-in information to our workgroup?
MR. KAMPERT: Correct.
MR. STAFFORD: Okay. And you can be seen but not heard, Tish.
Thank you, Eric.
Okay. I think this wraps things up.
Just as a point of order for our next meeting -- I've had a couple of members say this to me. You know, this is the first meeting that we've had since I've been chair that we have done the workgroups concurrently and not consecutively, and I've had some comments.
And this is just for OSHA staff to think about, at the next meeting, which I think Dean is telling me is probably going to be in April, our first meeting in 2015, whether, since we are now doing this, whether it makes sense to actually -- instead of doing them all in two hours -- whether it makes sense -- I'm not sure of the right number -- to say that the workgroups would be meeting since we're doing them all at once -- over a three-hour period or a four-hour period?
I'm not sure what the right number is, but I think -- and this is a decision, obviously, that we don't have to make here today, but I'm just throwing it out to the staff that, at the next meeting, since we're doing them -- assuming that we're going to continue to do them this way, that they're all at the same time, whether or not we think about doing a three-hour workgroup as opposed to a two-hour workgroup, since the committee is here anyway.
I mean, for those of us that participated before, when we were doing them concurrently, we were going, you know, from four different -- so, we were here for eight hours that day during the workgroups, hitting all the meetings, and now we were just here for two hours.
MR. PRATT: Don Pratt.
Mr. Chairman, I concur that it would be very helpful if we could go to some of the other committee meetings. I think it gives us a more rounded opinion of what's going on.
And then the other thing I'd like to say is that if we are going to have a meeting that is not going to start until 1:00 o'clock, if we know about that ahead of time, then that gives us the opportunity, at least some of us, to come in that morning, rather than spending an extra night here.
So, it would be very helpful, and I usually book air flights within -- probably two months ahead of time. I get better rates. It just works out better.
If we know that we're going to be able to come in and we're not going to start until 1:00 o'clock, I won't come in until that morning.
So, we save -- I save the government money. What a concept.
MR. STAFFORD: I appreciate. Well, it's something to think about. I mean, I don't know what the rest of the group things.
Any other questions or comments, closing remarks? Appreciate everyone for being here.
Cindy, it's nice to have you aboard, and Palmer, I wish all of you happy holidays, and we'll adjourn.
(Whereupon, at 3:16 p.m., the meeting was concluded.)
The transcript has been amended to add the following statement previously left out of the original transcript:
DR. BRANCHE: How is that different from what I did?
MR. STAFFORD: Okay. So, we have a motion -- I see your hand up, Mr. Sapper, but we're not going to be able to take your comments right now.
- Michelle Yenchochic
- Director, Business Operations
- Diversified Reporting Services, Inc.
*Accessibility Assistance: Contact OSHA's Directorate of Construction at (202) 693-2020 for assistance accessing PDF materials.
All other documents, that are not PDF materials or formatted for the web, are available as Microsoft Office® formats and videos and are noted accordingly. If additional assistance is needed with reading, reviewing or accessing these documents or any figures and illustrations, please also contact OSHA's Directorate of Construction at (202) 693-2020.
**eBooks - EPUB is the most common format for e-Books. If you use a Sony Reader, a Nook, or an iPad you can download the EPUB file format. If you use a Kindle, you can download the MOBI file format.Back to Top