During the past several years, there has been an increasing number of regulations imposed on the construction industry. And for construction, excessive regulations translate into higher costs, some of which must be passed on to the consumer. Ultimately, these costs impact the industry’s recovery and businesses’ ability to expand and hire more workers.
Because the regulatory landscape shifts so frequently, it is especially important for contractors to stay aware of the progress of rules that will impact them. Here are a few regulations from OSHA construction business owners should be aware of.
Electronic recordkeeping proposal
OSHA has proposed a rule that would require employers to electronically submit detailed injury and illness data that would be made available to the public through an online database.
Employer groups, including ABC, have alerted OSHA to concerns about the proposal, pointing out the proposed rule exceeds the authority delegated to the agency by Congress and does nothing to achieve its stated goal of reducing injuries and illnesses. Instead, the proposal will force employers to disclose sensitive information to the public that can easily be manipulated, mischaracterized and misused for reasons wholly unrelated to safety, as well as subject employers to illegitimate attacks and employees to violations of their privacy.
The Coalition for Workplace Safety (CWS) also expressed serious concerns both in writing and at an OSHA public meeting in January. CWS argued OSHA’s proposal could diminish workplace safety by effectively eliminating the long-standing “no fault” policy for injury and illness reporting. CWS cautioned such a move would emphasize minimum compliance and lead to an unwanted chilling effect on recordkeeping. The coalition called on OSHA to withdraw the proposed rulemaking.
Crystalline silica proposal
OSHA has issued a proposed rule that would drastically lower the permissible exposure limit of crystalline silica for the construction industry. The proposal also would require contractors to implement engineering controls and follow several “ancillary” provisions, such as exposure monitoring, medical surveillance and the establishment of regulated areas. The proposal likely will impact 1.5 million more construction workers than OSHA estimated and will cost at least four times as much to implement.
According to ABC and the Construction Industry Safety Coalition, this proposal is problematic because the agency has not met its burden of demonstrating the proposal is technologically and economically feasible. Many of the provisions in the rulemaking simply will not work in the “real world” of construction. The groups requested OSHA withdraw the burdensome proposal until it can demonstrate a rule of this kind is necessary and workable.
Policy allows union access to merit shop jobsites
In February 2013, OSHA issued a letter of interpretation (LOI) that allowed union agents and community organizers for the first time to accompany safety inspectors into nonunion facilities, as long as an unspecified (nonmajority) number of employees in the nonunion workplace designate one.
As part of a U.S. House of Representatives Subcommittee on Workforce Protections hearing, ABC General Counsel Maury Baskin testified on behalf of both ABC and the National Association of Manufacturers the rule not only does nothing to promote workplace safety but has a substantial negative impact on the rights of employers and their employees.
In addition, by allowing outside union agents and community organizers access to nonunion employers’ private property, OSHA is injecting itself into labor management disputes and casting doubt on its status as a neutral enforcer of the law.
Baskin also testified the LOI contradicts the plain language of the Occupational Safety and Health Act and the National Labor Relations Act, along with OSHA’s Field Operations Manual and its predecessor the Field Inspection Reference Manual and, because they failed to go through the required notice and comment procedure, OSHA violated the Administrative Procedure Act.
Ultimately, Baskin called on Congress to take appropriate action to require OSHA to withdraw the LOI and for OSHA to voluntarily withdraw it regardless of congressional action.
These are just a few of the regulations from a variety of agencies that could have a significant impact on construction contractors. The only real solution to stemming the flood of rules and proposals from government agencies is to reform the regulatory process, including implementing across-the-board requirements to evaluate the risks, weigh the costs and assess the benefits of regulatory proposals. In the meantime, construction business owners should pay close attention to the shifts in the regulatory landscape.
Dan Brodbeck is the founder, president and CEO of Compass Partners LLC, Brentwood, Tenn.
For more information on ABC, visit www.abc.org or call (202) 595-1505.
