OSHA Issues

In the fall of 2003, the Occupational Safety and Health Administration (OSHA) issued a draft proposed standard on crystalline silica exposure for construction, general industry and maritime. The draft standard - some 50 pages - is overly broad, complex and vague and proposes a whole new set of stringent rules not unlike those for asbestos and lead. Moreover, the standard, by MCAA's estimation, is both technically and economically infeasible.

The standard would require employers to ensure that workers are protected from silica exposure through a variety of means, including monitoring and testing, respirators, shrouds, HEPA vacuums and filters and other more sophisticated engineering controls, and protective clothing. Employers would also be required to pay for pre-employment health screening, periodic health screening and possibly post-termination health screening, all of which is very costly and time consuming.

At the job site, regulated areas would have to be established to ensure minimal exposure to other contractor employees - a requirement which is likely to pose serious liability questions. OSHA would also require companies to have a "competent person" at each work site to ensure that engineering controls are working properly and be able to respond to unforeseen silica exposure problems. This "competent person" would more than likely have to be a certified industrial hygienist - someone with knowledge and experience in silica exposure. These are but a few highlights of the draft standard.

Suffice it to say, MCAA expressed its strenuous opposition to it and will continue to press OSHA and the Department of Labor to undertake greater efforts to enforce the existing exposure standard through outreach, research, education and compliance assistance. MCAA members go to great lengths to protect the health and safety of their workers. But the new standard OSHA is proposing would not only decimate the construction industry, it would likely result in less compliance among companies, not more.

The construction industry is one of the few sectors of the economy that has had consistent growth over the last six months and is projected for more in the future. To adopt a policy as over-reaching as the one OSHA is proposing on silica exposure would be shortsighted and economically devastating.

When the Bush Administration took office, they, not unlike the Clinton Administration before it, had certain ideas about how to address the issue of ergonomics injuries in the workplace. The Clinton Administration had taken a more stringent stance and pushed forward a standard which was terribly flawed, overly vague and tremendously costly and the standard was ultimately overturned by an Act of Congress. Officials within Bush's Department of Labor decided that instead of attempting to rewrite a new standard, they would target industries with high rates of incidents and recommend "guidelines" to deal with repetitive stress injuries on the job.

The first industry targeted was the nursing home industry, but these so-called "guidelines" have been rigorously enforced under the General Duty Clause and numerous citations issued to nursing homes for failure to adopt an ergonomics policy to prevent or reduce injuries. The poultry processors and retail grocery chains were the next focus of OSHA and guidelines for those industries are in the process of being finalized. After that, the "guidelines" begin hitting a little closer to home in the construction industry - the shipbuilders have asked OSHA to work with them to formulate guidelines for their workers.

MCAA will be watching developments there very carefully. In Washington State recently, it would appear that the ergonomics tide is turning. Voters there voted overwhelmingly to overturn the State's rules and regulations on ergonomics in the workplace, noting that they were the same overly broad, costly, one size fits all approach adopted by the Clinton Administration. We at MCAA certainly support efforts to reduce workplace injuries; we'd simply prefer that it be done in a technological and economically feasible manner. This is an issue that we are sure won't go away any time soon, so MCAA will continue to monitor other ergonomics initiatives at both the federal and state levels.

OSHA is still in negotiated rulemaking for a new standard for various types of hoisting equipment used at construction sites, primarily cranes and derricks. There have been several meetings on this proposal, and the working group has made a lot of progress. The major sticking point seems to be over operator certification. OSHA would prefer that contractors and equipment suppliers obtain operator certification from outside sources. The trade associations representing various construction contractors around the country have argued that their safety personnel should be allowed to get certification and then train their own employees.

Obviously these are dangerous pieces of equipment to operate and those who do should be knowledgeable. The requirement for outside certification will, however, result in increased costs for the contractor, whether they lease or own, and more time off work for the employees to get trained and tested. It will be interesting to see which approach finally prevails.

OSHA standards generally require that protective equipment (including PPE) be provided and used when necessary to protect employees from hazards that can cause injury, illness or physical harm. OSHA is reopening the record to get input on issues related to PPE considered to be a "tool of the trade."

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