Construction Safety & Health Committee 2019 Spring Leadership

2019 Construction Safety & Health Committee

Spring Leadership Meeting Marriott Wardman Park Hotel – Washington, DC CONSTRUCTION SAFETY & HEALTH COMMITTEE 2019 Spring Leadership Meeting – Washington, DC

TABLE OF CONTENTS

• Agenda: Construction Safety & Health Committee ...... 1

• Agenda: Construction Safety Education, Training, and Research Subcommittee ...... 2

• 2019-2020 Construction Safety and Health Committee Roster ...... 3

• Committee Report: 2019 International Builders’ Show Meeting (Las Vegas, NV) ...... 5

• Subcommittee Report: 2019 International Builders’ Show Meeting (Las Vegas, NV) ...... 10

Construction Safety and Health Committee Thursday, June 6, 2019 | 10:30 AM – 1:00 PM | Marriott Wardman Park Hotel | Roosevelt 5, Exhibition Level

• Agenda Brief – Guest Speakers: Regulatory Reform Update – U.S. Small Business Administration Office of Advocacy ...... 14

o Office of Advocacy Brochure ...... 16

• Agenda Brief – Regulatory and Litigation Update ...... 18

• Agenda Brief – NAHB Opioids Workgroup Update and Suicide Prevention in Construction ...... 20

o Construction Industry Alliance for Suicide Prevention FAQs ...... 22

• Agenda Brief – OSHA Alliance – “Vertical Framing Plan” ...... 24

o NAHB Signed Alliance Agreement 3/5/2019 ...... 25

Construction Safety Education, Training, and Research Subcommittee Friday, June 7, 2019 | 3:00 PM – 5:00 PM | Marriott Wardman Park Hotel | Washington 2, Exhibition Level

• Agenda Brief – 2020 IBS Education – Safety ...... 29

• Agenda Brief – Safety 365 Campaign ...... 30

• Agenda Brief – 2019 Susan Harwood Training Grant Program ...... 31

• Agenda Brief – Education Material: Duty of Care for Safety on Multi-Employer Jobsites ...... 32

o OSHA Multi-Employer Citation Policy DIRECTIVE NUMBER: CPL 2-00.124, 12/10/1999 ...... 33

• Agenda Brief – NHE/NAHB/Job-Site Safety Institute Video Toolbox Talks ...... 48 CONSTRUCTION SAFETY AND HEALTH COMMITTEE 2019 Spring Leadership Meeting Washington, DC Friday, June 7, 2019 10:30 AM – 1:00 PM Marriott Wardman Park Hotel | Roosevelt 5, Exhibition Level

Chair: Bob Hanbury, Lakewood Ranch, FL Staff: Rob Matuga, ext. 8507 Vice Chair: Juli Bacon, Woodinville, WA Staff: Felicia Watson, ext. 8229

AGENDA

I. Call to Order – Bob Hanbury, Chair 10:30 AM

Welcome and Introductions Approval of 2019 International Builders’ Show Report Consideration of Board Resolutions Report: Construction Safety Education, Training, and Research Subcommittee

II. Guest Speakers: Regulatory Reform Update – U.S. Small Business 10:45 AM Administration Office of Advocacy • Bruce Lundegren, Assistant Chief Counsel for Safety, Transportation, and Security • Janis Reyes, Assistant Chief Counsel for Labor and Immigration • Prianka Sharma, Assistant Chief Counsel for Natural Resources, Agriculture, and Energy

III. Regulatory and Litigation Update 11:30 AM • Brad Hammock, Littler Mendelson P.C. • Felicia Watson, NAHB Legal Affairs • Rob Matuga, NAHB Labor, Safety & Health

IV. NAHB Opioids Workgroup Update and Suicide Prevention in Construction 12:15 AM • David Jaffe, NAHB Legal Affairs • Rob Matuga, NAHB Labor, Safety & Health

V. OSHA Alliance – “Vertical Framing Plan” 12:30 AM • Rob Matuga, NAHB Labor, Safety & Health

VI. Open Forum and New Business 12:45 PM

VII. Adjournment 1:00 PM

CONSTRUCTION SAFETY, EDUCATION, TRAINING AND RESEARCH SUBCOMMITTEE 2019 Spring Leadership Meeting Washington, DC Thursday, June 6, 2019 3:00 PM – 5:00 PM Marriott Wardman Park Hotel | Washington 2, Exhibition Level

Chair: Bob Hanbury, Lakewood Ranch, FL Staff: Rob Matuga, ext. 8507 Vice Chair: Juli Bacon, Woodinville, WA Staff: Felicia Watson, ext. 8229

AGENDA

I. Call to Order – Juli Bacon, Vice Chair 3:00 PM Welcome and Introductions Approval of 2019 International Builders’ Show Subcommittee Report

II. 2020 IBS Education – Safety 3:15 PM • Rob Matuga, NAHB

III. Update: Safety 365 Campaign 3:30 PM • Rob Matuga, NAHB

IV. 2019 Susan Harwood Training Grant Program 3:45 PM • Rob Matuga, NAHB

V. Education Material Development: Duty of Care for Safety on Multi-Employer 4:00 PM Jobsites • Rob Matuga, NAHB • Brad Hammock, Littler Mendelson P.C.

VI. Update: NHE/NAHB/Job-Site Safety Institute Video Toolbox Talks 4:30 PM • Rob Matuga, NAHB

VII. Open Forum and New Business 4:45 PM

VIII. Adjournment 5:00 PM

2 2019-2020 Construction, Safety & Health Committee National Association of Home Builders

Committee Members Bob Hanbury, Chair Juli Bacon, Vice Chair Construction Solutions Consultant LLC Bacon Maintenance Services LLC 13342 Sorrento Way PO Box 1284 Lakewood Ranch, FL 34211 Woodinville, WA 98072 Email: [email protected] Email: [email protected] Phone: (860) 983-6045 Phone: (206) 300-9326 Fax: (941) 896-6156 Fax: (800) 317-1378 Barbara Byrd Carl Chretien B. Byrd Builders Chretien Construction 1263 S 120TH ST 35 Berry Rd Omaha, NE 68144-1609 Saco, ME 04072 Email: [email protected] Email:[email protected] Phone: (402) 968-8574 Phone: (207) 284-5843 Fax: (402) 334-1180 Fax: (207) 284-5843

Kenny Click Ted Clifton Click Builders Inc. Custom Homes & Remodeling Zero-Energy Plans LLC 7813 Covington Pkwy 107 S Main St STE G201 Amarillo, TX 79121-1935 Coupeville, WA 98239 Email: [email protected] Email: [email protected] Phone: (806) 355-7318 Phone: (360) 969-2363 Fax: (806) 359-6110 Fax: (360) 682-2005 Treacy Duerfeldt Jim Dunlap NWC Alliance Dunlap Builders 4412 Pacific Ave SE 335 W Harvard Ave Lacey, WA 98503-1119 Anchorage, AK 99501 Email: [email protected] Email: [email protected] Phone: (360) 489-8257 Phone: (907) 562-4512 Fax: (907) 563-2553

Michael Fenton J. Gary Hill Century Communities - Colorado Springs Division J. Gary Hill, LLC 10546 Pictured Rocks Drive 139 Rannoch CT Peyton, CO 80831 Winston Salem, NC 27107 Email: [email protected] Email: [email protected] Phone: (719) 645-8970 Phone: (336) 420-5893 Fax: (719) 266-1941 Fax: (336) 545-8299 Justin Johnson Tom Markovich Hoppe Homes LP Markovich Homes 5631 S 48TH ST 309 Rochester Hwy Lincoln, NE 68516 Seneca SC 29672-2406 Email: [email protected] Email: [email protected] Phone: (402) 580-7888 Phone: (864) 886-0360 Fax: (864) 886-0361

David Miller Geep Moore McDougal Construction Moore-Built Construction & Restoration 5001 W Loop 289 523 Oil Field Rd Lubbock, TX 794141614 Elm Grove, LA 71051-7914 Email: [email protected] Email: [email protected] Phone: (806) 797-3162 Phone: (318) 742-9474 Fax: (318) 742-7841 3 2019-2020 Construction, Safety & Health Committee National Association of Home Builders Robert Privott Bill Schaffner Robert Privott Construction Co Builders Mutual PO Box 4354 PO Box 150005 Sanford, NC 27331 Raleigh, NC 27624-0005 Email: [email protected] Email: [email protected] Phone: (919) 770-7536 Phone: (919) 227-0214 Fax: (919) 499-9721 Fax: (919) 227-0497 Tom Slater Sean Sullivan Timberland Lumber Company Living Stone Construction, Inc. PO Box 193 706 NC Highway 9 Brazil, IN 47834 Black Mountain, NC 28711 Email: [email protected] Email: [email protected] Phone: (812) 446-2397 Phone: (855) 720-2435 Fax: (812) 448-1236 Fax: (828) 359-5557

James Swanner Thomas Tomaszewski AmFed Companies LLC The Annex Group 576 Highland Colony, Pkwy Ste 300 19350 S Harlem Ave Suite 201 Ridgeland, MS 39157 Frankfort, IL 60423 Email: [email protected] Email: [email protected] Phone: (601) 427-3870 Phone: (708) 960-0356

Norton Wheeler Lynne Edwards, EOC Liaison Mystic River Building Co LLC Tallahassee Builders Association 67 New London Turnpike 3231 Capital Medical Blvd Mystic, CT 06355 Tallahassee, FL 32308 Email: [email protected] [email protected] Phone: (860) 536-0102 Phone: (850) 385-1414 Fax: (860) 536-9621

NAHB Staff Susan Asmus Felicia Watson Senior Vice President Senior Counsel Housing Finance & Regulatory Affairs Office of the General Counsel (202) 266-8538 (202) 266-8229 (202) 266-8056 FAX [email protected] [email protected] Robert Matuga Alexis Moch Assistant Vice President Federal Legislative Director Labor, Safety & Health Policy Government Affairs (202) 266-8507 (202) 266-8407 (202) 266-8056 FAX [email protected] [email protected] Vacant Mailing Address Program Manager, Safety National Association of Home Builders Labor, Safety & Health Policy 1201 15th Street, NW (202) 266-8590 Washington, DC 20005-2800 (202) 266-8104 FAX

May 2019

This directory is provided exclusively for NAHB members. Please do not copy or distribute this information without the consent of NAHB. Thank you!

Committee, Council, and Task Force Report

Not For Publication Report No.

FOR THE INFORMATION OF THE NAHB SENIOR OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS

Chairman: J. Gary Hill

Vice-Chairman: Bob Hanbury

Report of the: Construction, Safety, and Health Committee

Group: Advocacy

Staff Contact Rob Matuga

Meeting Held Monday, February 18, 2019 | 10:30 AM – 1:00 PM | Las Vegas Convention Center – Level Two, North 252

I. Call To Order

Chair, J. Gary Hill, called the meeting to order and reviewed the committee meeting agenda.

II. Committee Chair Remarks

Chair Hill welcomed the committee and asked for all members and guests to introduce themselves and sign the attendance sheet. Vice-Chair Hanbury and 2nd Vice Chair Juli Bacon concluded opening remarks by thanking everyone in attendance for their support and participation.

III. Meeting Minutes:

The report for the 2018 Midyear Meeting, held in Portland, Oregon for the Construction Safety and Health Committee was approved.

IV. Reports:

A. OSHA Update: Guest Speaker, Scott Ketcham, OSHA Acting Director of Construction

Scott Ketcham, the Acting OSHA Director of Construction, gave an “OSHA Construction Update” which provided an overview of OSHA’s regulatory initiatives, education, enforcement, and the annual OSHA fall prevention campaign.

Mr. Ketcham began the presentation with providing statistics highlighting the number and rate of fatal work injuries in the construction industry in 2017: which were 971 deaths and a

rate of 9.5 per 100,000 workers. He emphasized that falls to a lower level were the leading cause of fatal accidents in construction and most were from heights between 6 and 15 feet. He also provided data on OSHA inspections, where 51% of OSHA compliance inspections are conducted in construction (three-year average, FY16-18) and highlighted OSHA’s top 10 most frequently cited construction violations for FY 2018, with fall protection again at the top of the list.

Mr. Ketcham briefly touched on regulatory projects including the Railroad Cranes- Writing Proposed Rule, Tech Amendments to OSHA standards, Amendments to the Crane rule, and Communication Tower small business review. He also provided a review of the new Crane Operator Qualification rule, which requires crane employers to evaluate an operator to ensure they have the skills, knowledge, and ability to recognize and avert risk, necessary to operate the equipment safely.

Mr. Ketcham also discussed OSHA’s priority goal of Reducing Trenching and Excavation. Due to the increase in trenching accidents and fatalities, including in residential construction, OSHA has established the National Emphasis Program (NEP) on Trenching which is aimed at identifying and reducing trenching and excavation hazards through enforcement, outreach, and compliance assistance to employers. He also provided an overview of enforcement of the OSHA silica rule. OSHA began enforcing the construction standard on September 23, 2017 and the agency had provided several compliance assistance materials, including the Small Entity Compliance Guide, FAQs, Fact sheets, and Videos. He noted the top silica violations to date, which were for: not following Table 1; failure to perform an Exposure Assessment; not having a Written Exposure Control Plan; to not proving Hazard Communication Information & Training.

Mr. Ketcham wrapped up his presentation with a discussion on the 2019 OSHA Fall Prevention Campaign, noting the dates would be May 6 – 10, 2019. Mr. Ketchum noted that this campaign has been a huge success with thousands of companies – large and small – participating across the US and internationally. He encouraged NAHB and its members to participate in this event.

B. Construction Safety, Education, and Research Subcommittee Report

2nd Vice Chair Juli Bacon briefed the Committee on the Subcommittee’s discussion and recommendations from the previous day. (See: Construction Safety, Education, and Research Subcommittee meeting minutes, which are included in a separate document).

C. NAHB Safety Sponsorship Presentations

NAHB safety sponsors, the Official Safety Sponsor of NAHB – Builders Mutual Insurance Company, and Diamond Safety Sponsor – James Hardie providing presentations on their efforts to promote safety in the housing industry. Builders Mutual invited members to visit the inaugural IBS Jobsite Safety Zone on the Las Vegas Convention Center show floor, which will showcase exhibitors who specialize in providing cutting edge construction safety products. James Hardie announced the new free resource available on nahb.org, the Siding Contractor Safety Program that contains materials to effortlessly set up a successful, company-wide safety program for siding installers.

D. Litigation Update: NAHB Legal Challenges to OSHA’s Rules and Recent Significant Court Decisions

NAHB staff and outside counsel, Brad Hammock of Littler Mendelsohn, provided an update on NAHB’s legal challenges of several OSHA final rules including the electronic recordkeeping/reporting and recent court decisions affecting the construction industry.

Electronic Recordkeeping/Reporting In January 2017, NAHB, along with the U.S. Chamber of Commerce, the Oklahoma State Home Builders Association, the State Chamber of Oklahoma and three poultry associations also filed a lawsuit challenging the legal authority of OSHA to issue the electronic reporting rule. The lawsuit challenging the electronic recordkeeping/reporting rule was stayed in July 2017 pending further consideration and proposed rulemaking by OSHA.

With this new rulemaking, OSHA issued a revised final rule on January 25, 2019, which eliminates a requirement that establishments with 250 or more employees electronically submit information from certain OSHA forms. Companies will no longer be required to electronically submit information on OSHA’s Log of Work-Related Injuries and Illnesses form (Form 300) and Injury and Illness Incident Report form (Form 301). However, the final rule also leaves in place the prohibition of employers from discouraging workers from reporting an injury or illness and requires employers to inform employees of their right to report work-related injuries and illnesses, provide reasonable procedures for reporting that does not deter or discourage workers from reporting work-related injuries and illnesses, and may not retaliate against employees for reporting work-related injuries and illnesses.

Because NAHB believes that OSHA did not go far enough in the current rulemaking to address significant issues associated with the previous 2016 rulemaking, it is anticipated that NAHB’s 2017 legal challenge will begin moving forward, and we hope to see a positive outcome for NAHB members.

Secretary of Labor v. Hensel Phelps (Multi-employer Citations) In November 2018, the Fifth Circuit Court of Appeals ruled that the Department of Labor can cite general contractors for workplace safety violations that put subcontractors’ workers in danger, upholding OSHA’s multi-employer citation policy. NAHB has been challenging the multi-employer worksite doctrine for years and filed an amicus brief in this case in support of Hensel Phelps, along with the Texas Association of Builders and other construction groups.

This case involved an OSHA citation against Hensel Phelps, a general contractor, for a violation of OSHA’s excavation standard, based on alleged violations of a subcontractor (only employees exposed to the alleged hazards were employees of the subcontractor) on a Hensel- controlled worksite. OSHA applied its multi-employer citation policy to issue the citation to Hensel and initially proposed it as “Willful” with a $70,000 proposed penalty.

The three-judge panel for the Fifth Circuit (covering Louisiana, Mississippi and Texas) concluded that “the Secretary of Labor has the authority under the Occupational Safety and Health Act to issue citations to controlling employers at multi-employer worksites for violations of the act’s standards.”

The trend of the courts has been in favor of the Department of Labor’s position on the policy, with seven other circuits previously upholding OSHA’s multi-employer citation policy. The Fifth Circuit had been an outlier, holding, since 1981, that OSHA regulations protect only an employers’ own employees. OSHA’s Multi-Employer Worksite Doctrine is now fully enforceable in the Fifth Circuit and elsewhere across the country. This decision means that general contractors should take reasonable steps to ensure work conducted on their jobsites is done safely by their own employees, as well as subcontractors, and in compliance with OSHA/safety regulations.

Secretary of Labor v. Kiewit Power Constructors Co. (Emergency Eyewash) In September 2018, the Occupational Safety and Health Review Commission (OSHRC) ruled that OSHA’s standard requiring emergency eye-flushing and body-washing facilities on construction sites is invalid. The construction company, Kiewit, was cited for allegedly violating the eyewash and shower standard (29 C.F.R. § 1926.50(g)) because the emergency eyewash stations were not located near construction workers. Kiewit contested the citation. They argued it provided adequate eyewash stations, but the company also made a procedural argument that OSHA did not properly promulgate the standard.

The OSHRC agreed with Kiewit’s procedural argument and concluded “section 6(a) [of the OSH Act] did not authorize the Secretary to apply the quick-drenching standard to construction employers without notice-and-comment-rulemaking.”. This decision means that, currently, OSHA cannot issue citations to construction employers for failing to have emergency eyewash stations or showers. However, the case is being appealed and could change. At this time, construction employers should, as a best practice, continue to provide employees with eyewash stations when corrosive materials are being used, as OSHA could issue citations under the general duty clause (Section 5(a)(1) of the OSH Act).

E. Update: OSHA State Plan State Issues

NAHB staff provided an update on discussions regarding OSHA allowing increased flexibility to state-plan states to implement enforcement and regulatory programs. NAHB participated in two meetings, one in January 2019 with the Occupational Safety & Health State Plan Association (OSHPA) Board to discuss ways that state-plan states might successfully work with Federal OSHA to allow alternative regulatory approaches that would be effective and another in October 2018 with Loren Sweatt, Deputy Assistant Secretary of Labor for Occupational Safety and Health, to discuss potential options to provide state-plan states greater flexibility to develop and enforce standards in a way that considers the unique characteristics of each state.

One of the main conclusions from these meetings was a need for NAHB members in OSHA state-plan states (22 states or territories have OSHA-approved State Plans) to become more involved with the rulemaking process in those states.

V. Other Issues

An update was provided announcing that NAHB's Opioid Resources Are Now Available on nahb.org. NAHB’s new campaign, Opioids in the Home Building Industry – “Making it Your Business”, is a multifaceted educational and engagement campaign that features webinars, fact

sheets, tool kits and other critical resources for NAHB member. It was noted that these materials were developed with the assistance of the Job-Site Safety Institute (JSI) who provided a $50,000 grant to NAHB.

VI. Actions To Be Taken

1. Promote the 2019 OSHA Fall Prevention Campaign and encourage NAHB members to participate.

2. Continue NAHB legal challenge to OSHA’s electronic recordkeeping/reporting rule.

3. Continue development of education and outreach materials addressing the opioid crisis.

VII. Attendance

COMMITTEE MEMBERS: J. Gary Hill, Kenny Click Bill Schaffner Chair Don Druse Tom Slater Robert Hanbury, Jim Dunlap Terry Duszynski Vice Chair Michael Fenton Juli Bacon, Willie Martin 2nd Vice Chair Justin Johnson Barbie Byrd Willie Martin Ken Callahan David Miller Carl Chretien Robert Privott

GUESTS: Felipe Devora Steve Albert John Stoke Joshua Moore Matt Bailey Ross Jones Matt Piper Ed Hyde George Middleton Robert Wood Allen Wilson Jim Green Dan Johnson Jerry Passman Jim Carr Jodi Vedelli Rusty Golden Brad Hammock Mike Gerber Mike Arnett Katie Mariani Sean Sullivan Norman Jones

STAFF:

Rob Matuga Felicia Watson Susan Asmus Peter Deery

Committee, Council, and Task Force Report

Not For Publication Report No.

FOR THE INFORMATION OF THE NAHB SENIOR OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS Chairman: J. Gary Hill

Vice-Chairman: Bob Hanbury

Report of the: Construction Safety, Education, and Research Sub-Committee

Group: Advocacy

Staff Contact Rob Matuga

Meeting Held Sunday, February 17, 2019 | 3:00 PM – 5:00 PM | Las Vegas Convention Center – Level Two, North 256

I. Call To Order Committee 2nd Vice Chairwoman Juli Bacon called the meeting to order and reviewed the committee meeting agenda.

II. Chairman and Vice-chairman Remarks Juli Bacon welcomed the committee and asked for all members and guests to introduce themselves and sign the attendance sheet. Ms. Bacon concluded opening remarks by thanking everyone in attendance for their support and participation.

III. Meeting Minutes:

The report for the 2018 Midyear Meeting, held in Portland, Oregon for the Construction Safety, Education, and Research Sub-Committee was approved.

IV. Reports

A. 2019 IBS Jobsite Safety Zone

NAHB staff provided an update the new IBS Jobsite Safety Zone. The safety zone, which is 2,000-feet of space located in the North Hall of the Las Vegas Convention Center | LVCC North Hall - N663, will showcase exhibitors who specialize in providing cutting edge construction safety products and educate residential construction professionals on the latest in workplace safety solutions. All the safety zone space was sold and there was a total of 10 safety- specific exhibitors. In addition, the Job-site Safety Institute (JSI), a non-profit organization with the mission to conduct safety research and offer education opportunities that will eliminate jobsite accidents, provided education opportunities in the safety zone with “Tips for Improving

Jobsite Safety” and “Ask the Safety Professional”. The goal is to enhance the IBS Jobsite Safety Zone in 2020 by expanding the size of the safety zone and adding additional exhibitors.

B. NAHB/Job-Site Safety Institute OSHA Harwood Training Grant

NAHB staff provided an update on the OSHA Harwood Training Grant. NAHB and the Job-site Safety Institute (JSI) partnered in obtaining a OSHA Susan Harwood Training Grant. These grants are for providing training and education for workers and employers on workplace safety and health hazards, with the target audiences including underserved, low-literacy, and high-hazard industry workers and employers. JSI and NAHB proposed to train approximately 750 workers, in person at no cost, in recognizing and avoiding falls from walking/working surfaces, roofs, ladders, and scaffolds in two separate four (4) hour training programs – in English and Spanish – delivered at NAHB-affiliated state and local associations (HBAs).

In September 2017, JSI and NAHB were awarded a $150,700 grant to develop the Fall Prevention in Residential Construction training program. NAHB/JSI conducted 39 training sessions with a total of 721 participants between April 1 to December 31, 2018. Because of the demand for this training and successful delivery, the subcommittee recommended seeking grant funding to conduct additional fall prevention training in 2019/2020.

C. NHE/NAHB/Job-Site Safety Institute Video Toolbox Talks

NAHB staff provided an update on the Video Toolbox Talks being created, which are short videos that present relevant and timely information on the recognition and prevention of safety hazards in the residential construction industry. These videos were developed in conjunction with the Job-Site Safety Institute and National Housing Endowment. As of January 31, 2019, NAHB has completed 24 of 36 videos (English/Spanish), which includes the following:

• Ladder Safety • Personal • Safe Driving • Chemical • Nail Gun Safety Protective • Silica Safety/Hazard • Housekeeping and Equipment • Scaffold Safety Communication Fire Safety • Heat Stress • Confined Space • Fall Protection • Safe Lifting/Material Handling In 2019, NAHB will develop the following videos:

• Guardrails • Struck-by/Caught-in between • Trenching and Excavation • Saw Safety • Electrical Safety • Trade Specific topic – Roofing Safety

The videos can be found on NAHB’s YouTube page under the safety playlists in both English and Spanish. NAHB continues to promote all videos through the NAHBNow Blog and the #safety365 campaign with good results. The subcommittee agreed that the continued development of the NAHB Video Toolbox Talks as a priority.

D. OSHA Alliance Program

NAHB staff provided an update on OSHA’s Alliance Program, where the agency works with groups committed to worker safety and health to prevent workplace fatalities, injuries, and illnesses. Between 2003 to 2014, NAHB had a productive alliance with OSHA. In 2018, NAHB was invited to join an OSHA alliance aimed at protecting framing/carpentry workers, including Spanish-speaking, from construction health and safety hazards. The specific aim of the new alliance is developing a guidance document that addresses fall protection feasibility during all phases of wood frame construction—which has been a significant area of concern for the homebuilding industry since 1994 that is still unresolved. NAHB agreed to join this Alliance with the following organizations are expected to join this alliance:

• National Framers Council (NFC) • California Framing Contractors Association (CFCA) • International Staple, Nail and Tool Association (ISANTA) • Residential Contractors Association (REA) • Structural Building Components Association (SBCA)

The following members volunteered to assist staff with the Alliance implementation, as needed: Ken Callahan; Dan Johnson, and Gary Hill.

E. 2019 NAHB Safety 365 Campaign

NAHB staff provided an update on the Safety 365 Campaign, which is a yearlong member and public awareness campaign to provide information and resources to help keep construction workers safe and eliminate preventable accidents, injuries. In 2019, NAHB plans to continue the Safety 365 campaign which will highlight a different aspect of construction workplace safety each month, as well as promote safety off-the job, with the focus on supporting construction safety every day--365 days a year. The campaign aligns with NAHB’s Construction Safety and Health Committee’s efforts, as well as NAHB’s educational resources, safety training materials, and news updates that are intended to help members comply with OSHA regulations and make jobsites safer.

The subcommittee members discussed the why residential general contractors need to pay attention to workplace safety issues with trade contractors and it was noted that OSHA’s multi- employer citation policy applies. This policy permits OSHA to cite more than one employer (including the general contractor) on multi-employer worksites for a hazardous condition that violates an OSHA standard. The subcommittee recommended that NAHB develop educational materials for general contractors that outlines what reasonable care must be exercised to ensure safety on their jobsite(s).

VI. Other Issues

NAHB staff provided an update on the NAHB/Builders Mutual Insurance Company Safety Award for Excellence (SAFE), where the 13 winners of the annual awards program were announced. The SAFE award recognizes member companies, workers and other individuals for

outstanding safety programs that make them leaders in the residential construction industry and winners are listed on nahb.org/SAFE.

VII. Actions To Be Taken

1. Develop streamlined educational material for general contractors that outlines their duties under OSHA’s multi-employer citation policy to exercise “reasonable care” to prevent and detect violations on the worksite and promote this job site safety information to NAHB’s members.

2. Seek additional OSHA Harwood grant funding to conduct additional fall prevention training at state/local HBAs.

3. Continue development of the NAHB Video Toolbox Talks.

VIII. Attendance

COMMITTEE MEMBERS: J. Gary Hill, David Miller Chair Bill Schaffner Juli Bacon, 2nd Vice Chair Ken Callahan Jim Dunlap Willie Martin

GUESTS: Felipe Devora Matt Piper Jerry Passman Allen Beam Steve Albert Treacy Duerfeldt Jim Green Jack Milarch Josh Moore Marcus Kuizenga Dan Johnson

STAFF:

Rob Matuga Peter Deery Felicia Watson0

13 Construction Safety and Health Committee 2019 Spring Leadership Meeting

Agenda Brief: Guest Speakers: Regulatory Reform Update – U.S. Small Business Administration Office of Advocacy

Agenda Objective: Provide an overview about the role the Small Business Administration’s Office of Advocacy plays within the larger federal government as an advocate for the interests of small businesses and their involvement in Regulatory Reform efforts underway because of two recent regulatory Executive Orders.

Points for review:

SBA OFFICE OF ADVOCACY

• 1976 – Congress created the Office of Advocacy of the U.S. Small Business Administration (SBA) to promote policies to support the development, growth, and health of small business and it the independent voice for small business within the federal government.

• The Office of Advocacy gives small firm owners and their representatives opportunities to make their voices heard about rules that affect their interests.

• Annually, the Office of Advocacy helps small businesses save billions in regulatory costs.

• Advocacy attorneys work within the government, educating regulators about their obligation to consider how small entities will be affected by federal regulatory proposals.

• 1980 – Congress passed the Regulatory Flexibility Act (RFA) which strengthened Advocacy’s role as the small business voice in the regulatory process.

o The RFA requires federal agencies to determine the impact of their rules on small entities, consider alternatives that minimize small entity impacts, and make their analyses available for public comment.

• 1993 and 2002 – Executive Order 12866 and Executive Order 13272 require federal agencies to determine the impact of their rules on small entities.

o The Office of Advocacy gives small firm owners and their representatives opportunities to make their voices heard about rules that affect their interests.

REGULATORY AFFAIRS

• Advocacy's Office of Interagency Affairs also monitors federal agencies' compliance with the RFA, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA).

o The RFA requires federal agencies to analyze the impact of proposed regulations on small firms, and the Office of Advocacy reports on agencies' compliance to Congress each year.

o Under SBREFA, covered agencies (the Environmental Protection Agency (EPA), the Occupational Safety and Health Administration (OSHA), and the Consumer Financial

14 Protection Bureau (CFPB) must conduct a Small Business Advocacy Review (SBAR) panel before publishing a proposed rule with an Initial Regulatory Flexibility Analysis.

o NAHB members have participated in the SBREFA panel process on environmental and safety issues, such as OSHA’s silica, confined spaces, and cranes & derricks in construction rules and EPA’s Lead-based Paint Certification and Training rule.

• The Office of Advocacy provides regulatory comment letters concerning the Federal Government's compliance with the RFA and SBREFA and testimony before House and Senate committees and subcommittees on important small business issues.

• Part of Advocacy’s mission is to also conduct, sponsor, and promote economic research that provides an environment for small business growth.

REGULATORY REFORM

• Advocacy is involved in Regulatory Reform efforts underway because of two recent—2017— regulatory Executive Orders:

o Executive Order 13771 - Reducing Regulation and Controlling Regulatory Costs and Executive Order 13777 - Enforcing the Regulatory Reform Agenda

• Advocacy is also hosting small business roundtables to hear firsthand from small businesses facing regulatory burdens. The purpose of Advocacy’s Regional Regulatory Roundtables is to:

o Identify regional small business regulatory issues to assist agencies with regulatory reform and reduction in compliance with Executive Orders 13771 & 13777;

o Compile crucial information for Advocacy’s new report on existing small business regulatory burdens across the nation, identifying specific recommendations for regulatory changes based upon first-hand accounts from small businesses across the country; and

o Inform and educate the small business public as to how Advocacy and SBA can assist them with their small business.

• NAHB’s members have participated in several of the Regional Regulatory Roundtables and have raised issues surrounding the impact of regulations on the final price of a new home, including Federal environmental and workplace safety requirements, health care, building codes and standards, and employment issues.

• December 2018 – Office of Advocacy issues a report: What Small Businesses Are Saying and What Advocacy Is Doing About It: Progress Report on the Office of Advocacy’s Regional Regulatory Reform Roundtables, available here.

Points for discussion:

• Are there any specific federal regulatory burdens facing your businesses that you would like to share with the U.S. Small Business Administration Office of Advocacy?

• Are members interested in participating in the additional SBA Regional Regulatory Roundtables (dates and locations to be determined)?

15 Your Issues are Advocacy’s Issues There are many ways to stay current with the Office of Advocacy’s news releases, monthly newsletter, small business research, statistics, and regulatory news at www.sba.gov/updates

Access Advocacy’s blog, “The Small Business Watchdog” at: advocacysba.sites.usa.gov

Advocacy is on Facebook at facebook.com/AdvocacySBA

Visit our website at: www.sba.gov/advocacy

www.sba.gov/advocacy

409 3rd Street, SW / MC 3114 / Washington, DC 20416 ph 202-205-6533 / fax 202-205-6928 16 The Office of Advocacy is the ME VT independent voice for small business WA ND MT MN within the federal government. OR WI NY ID SD MI WY PA

NE IA OH Advocacy accomplishes this goal by NV IL IN UT WV VA guaranteeing that small business views are heard CO KS MO KY CA NC in the regulatory process and by providing TN policymakers and small business stakeholders OK SC AZ NM AR with the knowledge they need to advance the MS AL GA small business economy. In order to carry out TX LA this mission, Advocacy focuses on regulations, AK FL research, and outreach. Advocacy attorneys educate federal regulators about their obligation HI to consider the impact of regulations on small entities and work with them to consider possible alternatives. Advocacy economists research the REGION OTHER REGION 9 SITES OTHER REGION 2 SITES issues that matter most to small business, and the Regional Advocates keep an open line of - Guam - Puerto Rico communication to businesses all across the - American Samoa - Virgin Islands country. - Trust Territories - Commonwealth of the Northern Mariana COLOR Islands ABOUT ADVOCACY

In 1976, Congress created the Office of Advocacy The Office of Advocacy continues to promote Moreover, to better communicate with small to promote policies to support the development, policies for small business success and to ensure that businesses at the local level, Advocacy employs a growth, and health of small business. Today, the small businesses have a voice in the regulatory team of 10 Regional Advocates to bring their voice original statute only serves as the basic legislative process. Every year Advocacy reports to Congress to the table in Washington, D.C. And, each and framework for the office. In 1980, Congress passed and the Administration on agency compliance with every year, as technology improves, the office the Regulatory Flexibility Act which strengthened the Regulatory Flexibility Act; this includes the works to expand our online presence and design Advocacy’s role as the small business voice in the regulations the office has worked on and the more user-friendly approaches to our research and regulatory process, and Executive Orders during first-year regulatory cost savings for small business. other publications. Forty years later, Advocacy subsequent Administrations have underscored this Advocacy releases more than 20 research remains as the strong voice for small business. intent. publications annually, and our economists present these findings throughout the country. 17 Construction Safety and Health Committee 2019 Spring Leadership Meeting

Agenda Brief: Regulatory and Litigation Update

Agenda Objective: Provide update on recent OSHA regulatory activity and NAHB’s lawsuit on OSHA’s final recordkeeping/electronic reporting final rule.

Points for review:

POWERED INDUSTRIAL TRUCKS

• March 2019 – OSHA issued a Request for Information (RFI) seeking comment on issues related to the requirements in the standard for Powered Industrial Trucks (i.e., forklifts).

• The forklift regulation, issued in 1971 and last updated in 1998, is intended to protect forklift operators and those working near this equipment.

• OSHA is considering whether to initiate rulemaking to revise its forklift standard for construction with the aim of determining if the current rule is effective in protecting workers.

• OSHA’s current standard for forklifts requires the equipment to be designed, constructed, maintained and operated in accordance with the American National Standards Institute B56.1–1969, Safety Standards for Powered Industrial Trucks

• The standard also requires that operators be competent to operate a forklift safely, as demonstrated by the successful completion of the specified training and evaluation.

• OSHA is considering changes due to 1,357 fatalities resulting from the use of forklifts between 2011 and 2016, with a total of 94 in construction during that 5-year period, with the likely cause of accidents are workers being struck-by the forklift or materials being lifted by the equipment.

• NAHB’s main concern is that all-terrain forklifts used in construction are different than other forklifts used in a warehouse setting, therefore, if OSHA is intent on revising this rule, the agency needs to consider the distinct differences of the construction industry.

• June 10, 2019 – NAHB will be submitting comments in response to OSHA’s proposed forklift rule.

STANDRDS IMPROVEMENT PROJECT (SIPS)

• October 2016 – OSHA proposed revisions to eighteen (18) existing standards in its recordkeeping, general industry, and construction standards, with most of the revisions to its construction standards.

• OSHA proposed Standards Improvement Project-Phase IV (SIP-IV) goal reduce regulatory burden while maintaining or enhancing employees' safety and health.

• OSHA’s SIP focuses on removing or revising outdated, duplicative, or unnecessary requirements in OSHA's safety and health standards that will allow better compliance and reduce costs and paperwork burdens without reducing employee protections.

• January 2017 – NAHB, along with the Construction Industry Safety Coalition (CISC), submits comments supporting OSHA’s proposed exclusion for posting safe load limits of floors in single-family residences and also raising concerns that the SIPs rulemaking represents substantive changes to several standards (i.e., PPE fit and changes to the excavation standard) would impose significant new costs and burdens on employers and thus are not appropriate as part of the SIP rulemaking process.

• May 14, 2019 – OSHA issues the final rule on its Standards Improvement Process, which the Agency is touting this as part of their deregulation effort.

• NAHB and the construction industry had a small success, as OSHA decided against including several changes we opposed:

o requiring that personal protective equipment (PPE) used in construction fit each affected worker; o removing the phrase “that could pose a hazard” from requirements to protect construction workers from excavated loose rock and soil. o NOTE: OSHA removed the load limit posting requirement for single family dwellings and wood-framed multi-family structures in 29 CFR 1926.250, which NAHB supported.

ELECTRONIC RECORDKEEPING/REPORTING

• May 12, 2016 – OSHA issued a new final rule to improve the tracking of workplace injuries and illnesses through electronic means.

• OSHA final electronic recordkeeping/reporting rule requires certain employers to electronically submit injury and illness data that they are already required to keep under existing recordkeeping regulations, Part 1904.

• January 4, 2017 – NAHB, along with the U.S. Chamber of Commerce, the Oklahoma State Home Builders Association, the State Chamber of Oklahoma and three poultry associations also filed a lawsuit challenging the legal authority of OSHA to issue the electronic reporting rule.

• July 11, 2017 – NAHB lawsuit challenging the electronic recordkeeping/reporting rule is stayed pending further consideration and proposed rulemaking by OSHA.

• July 31, 2018 – OSHA issues a proposed rule to rescind the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301.

• January 25, 2019 – OSHA issues a revised final rule to improve the tracking of workplace injuries and illnesses through electronic means.

• May 2019 – NAHB’s 2017 legal challenge resumes.

Points for discussion:

• Are there other concerns or issues with the use of forklifts on construction sites?

19 Construction Safety and Health Committee 2019 Spring Leadership Meeting

Agenda Brief: NAHB Opioids Workgroup Update and Suicide Prevention in Construction

Agenda Objective: Provide update on the efforts of NAHB’s Opioids Workgroup and NAHB’s invitation to join the Construction Industry Alliance for Suicide Prevention.

Points for review:

OPIOIDS

• Opioids are a class of drugs used to reduce pain that include the illegal drug heroin, synthetic opioids such as fentanyl, and pain relievers available legally by prescription, such as oxycodone (OxyContin®), hydrocodone (Vicodin®), codeine, morphine, and many others.

• In October 2017, President Trump declared the opioid crisis a Nationwide Public Health Emergency.

• For NAHB and the members, the opioid abuse epidemic is both a construction industry issue and a housing issue.

• The problem disproportionately affects workers in the construction industry. An estimated 15.1% of construction workers have engaged in illicit drug use, according to a report by commercial insurance underwriter CNA. This is second only to the food service industry.

• Opioid abuse is linked to problems with workplace productivity and safety.

o Work injuries and illnesses are often the reason opioids are prescribed in the first place. If workers are under the influence of opioids while they are at work, they are likely to be at increased risk for injury. The use of prescription opioids may also impact the ability of a person to return to work. And injured employees who abuse opioids can lead to increased injuries to others.

• The NAHB Construction Liability, Risk Management, and Building Materials Committee has teamed up with the Construction Safety & Health Committee to form an Opioid Working Group.

• October 2018 – NAHB received a $50,000 grant from the Job-Site Safety Institute (JSI) to supplement NAHB funding of the opioid project. Those funds are being used to develop the “Making it Your Business” Campaign, which will focus on the impacts of opioid misuse and abuse in the home building and remodeling industry.

• 2019 IBS – NAHB rolled out the first of its resources, focusing on the risks of opioid use, and a state resource guide, which are available on a dedicated opioid section of nahb.org. The full roll-out will take place in conjunction with the

• 2019 Spring Leadership Meeting – The full roll-out will take place and specific content includes:

o Supervisor training and toolkits focused on prevention of opioid misuse and tactics for intervening when problems are found.

o Resources for workers on how to deal with chronic pain, including a pain management alternatives fact sheet and guidelines for talking to doctors.

o Supervisor resources for helping workers to return to work after an injury and after treatment.

o Podcasts that coach supervisors on how to have difficult conversations with workers they suspect may be misusing opioids.

SUICIDE IN CONSTRUCTION

• Construction is the number one industry for number of suicides and suicide rates.

o According to the Centers for Disease Control, construction/extraction industry reports 53.3 suicide deaths per 100,000 employees in 2015 (1,248 total workers).

o For comparison, the Bureau of Labor Statistics show a total of 971 construction workers killed in CY 2017 from all other workplace safety hazards (i.e., falls, struck by, electrocutions, auto accidents, etc.).

• Construction workers are statistically at a higher risk for mental health issues than virtually every other profession and substance abuse has been linked to the increase in the number of suicides in the industry.

• NAHB has been asked to join the Construction Industry Alliance for Suicide Prevention (www.preventconstructionsuicide.com) , which is a 501(c)(3) nonprofit organization, with the goal of providing and disseminating information and resources for suicide prevention and mental health promotion in construction.

o The Alliance was formed by the Construction Financial Management Association (CFMA).

o Membership in the Alliance provides organizations and associations with the opportunity to continue to help shape the construction industry through promoting the safety and well-being of companies’ most important assets, workers.

o Alliance members assist with the dissemination of resources and information to their membership through quarterly e-mail communications, newsletters, website promotion, webinars, and/or other means at their disposal.

Points for discussion:

• What kind of public affairs and strategic initiatives should NAHB undertake on the opioids and suicide issues?

Alliance Members: Frequently Asked Questions www.cfma.org/suicideprevention About the Alliance Established by the Construction Financial Management Association (CFMA) in 2016, the Construction Industry Alliance for Suicide Prevention (the Alliance) is a group of key industry organizations who have recognized and are committed to promoting the safety and well-being of construction’s most important asset – its human capital.

What compelled CFMA to begin this effort? A July 2016 report by the Centers for Disease Control and Prevention reported that construction is one of the most at-risk industries for suicide. The study, which examined suicide risk by profession, found that of about 12,300 suicides in the 17 states studied, 1,324 people worked in construction and extraction (10.8%) and 1,049 (8.5%) worked in management, a category that includes top executives as well as others in management positions. Construction industry risk factors include a competitive, high-pressure environment, a relatively higher prevalence of alcohol and substance abuse, furloughs, end-of-season layoffs, and separation from family are just some of the actors that can challenge mental stability.

The devastating truth is that all too often, people who experience mental health conditions – which can lead to suicidal despair – suffer in silence. Despite dramatic advances in awareness, prevention, intervention, and treatment, mental health conditions and suicide prevention are still taboo topics of conversation.

As such, it is an industry imperative to shatter the mental health stigma and provide resources to assist construction companies so that they may address this issue which has long been ignored. There is a need for more proactive prevention-based strategies, solutions, and services to help the construction industry address mental health and suicide prevention.

What is the Alliance’s mission? The Alliance’s mission is simple, but profound: To provide and disseminate information and resources for suicide prevention and mental health promotion in construction with the goal of creating a zero-suicide industry. The current Alliance partners are available on the web page.

What efforts have taken place in the fight against suicide in construction? CFMA’s journey to promote awareness of mental health and suicide prevention has covered much ground since CFMA’s 2015 Annual Conference, thanks to the tireless efforts of Cal Beyer and Sally Spencer-Thomas. They have published nearly a dozen articles, the first of which appeared in the Nov/Dec 2015 issue of CFMA Building Profits, and spearheaded just as many presentations throughout the construction industry. April 2016 saw CFMA’s Valley of the Sun Chapter hosting the first regional Suicide Prevention Summit on the topic, spurring on other CFMA Chapters to undertake similar initiatives. Additional Summits have been presented across the country since that time, with more currently being planned.

To help focus these efforts, CFMA has established the Construction Industry Alliance for Suicide Prevention, with the goal of providing and disseminating information and resources for suicide prevention and mental health promotion in construction.

What are the expectations of Alliance members? Members of the Alliance agree to assist with the dissemination of suicide prevention resources to their membership/constituencies on at least a quarterly basis. The goal is to break the wall of silence around mental health and suicide and educate the construction industry on how to promote mental health as part of their companies’ overall wellness initiatives.

Page 1 of 2

22 The information and resources can be shared through a variety of means at the partner’s disposal including, but not limited to: • Publishing PSA-type ads on their websites or in publications (magazines, e-newsletters, etc.). • Distributing articles, videos, and other resources to their membership via email, blogs, discussion boards, etc. • Hosting webinars or education summits featuring mental health and suicide prevention information. • Publishing new articles, or reprinting existing content, in Association digital and print publications. • Directing their members to the host of resources available on the Alliance’s webpage. • Promoting their membership in the Alliance.

CFMA plans to produce a regular communication to Alliance member organizations to keep you up to date with the latest resources, activities, and information available to you and your members in the fight against suicide.

What resources are available for Alliance members? CFMA has compiled various resources to help Alliance members in the construction industry create awareness of the problem, cultivate a culture of caring, and start the conversation in the workplace.

See the Alliance’s website for a full list of resources ranging from published articles, “blueprints” for companies, posters in English and Spanish for display in the workplace, to information and tips on how to plan an education session or suicide prevention summit, and much more.

What is the best way to get started in our own organization? We have created four chronological sample e-mails for your use in communicating the information with your members. A copy of the sample e-mails is attached. Feel free to edit these messages in a way that you think will “speak” to your members. We also encourage you to appoint an internal “point person” for inquiries from your members, and include this in your communications.

How can our organization get involved with local suicide prevention summits already being planned? Can we plan our own? The CIASP task force has a subgroup assigned to assist with local suicide prevention summits and other events. There is a “how-to” toolkit for summit preparation and other information readily available.

As we provide you with the updated lists of local suicide prevention summits and other events planned, we hope that you will share these with your local chapters/members and encourage them to actively participate in these local endeavors.

What is the role of the CIASP Task Force? In alignment with CFMA’s Strategic Plan and Mission, the Task Force will provide input, advice, guidance, and review in successfully positioning the Alliance as the resource for suicide prevention and mental health promotion in construction.

Who do I contact with questions about the Alliance? Alliance Membership Stuart Binstock [email protected] 609-945-2429 Task Force Activities Kristy Domboski [email protected] 609-945-2427 Education Brian Summers [email protected] 609-945-2408 Press/Marketing Fern Oram [email protected] 609-945-2494 Publications/Resources Kristy Domboski [email protected] 609-945-2427 Suicide Prevention Summits Kristy Domboski [email protected] 609-945-2427

Page 2 of 2 23 Construction Safety and Health Committee 2019 Spring Leadership Meeting

Agenda Brief: OSHA Alliance – “Vertical Framing Plan”

Agenda Objective: Discuss NAHB’s participation in OSHA’s Alliance cooperative program.

Points for review:

• Through the Alliance Program, OSHA works with groups committed to worker safety and health to prevent workplace fatalities, injuries, and illnesses.

• 2003 to 2014 – NAHB had a productive alliance with OSHA. The original NAHB-OSHA Alliance Agreement was signed May 8, 2003, and renewed in October 2005, June 2007, April 2010.

• March 2019 – NAHB joins the OSHA alliance aimed at protecting framing/carpentry workers, including Spanish-speaking, from construction health and safety hazards.

o The specific aim of the new alliance is developing a guidance document that addresses fall protection feasibility during all phases of wood frame construction—which has been a significant area of concern for the homebuilding industry since 1994 that is still unresolved.

o The goal is to also publish and promote the Vertical Framing Plan nationwide through training and outreach.

o The following organizations have joined this alliance:

- Occupational Safety and Health Administration (OSHA) - National Framers Council (NFC) - California Framing Contractors Association (CFCA) - International Staple, Nail and Tool Association (ISANTA) - Residential Contractors Association (REA) - Structural Building Components Association (SBCA)

• July 2019 – Alliance kickoff meeting planned.

Points for discussion:

• How can the home building industry benefit from the Vertical Framing Plan?

24 AGREEMENT ESTABLISHING AN ALLIANCE BETWEEN THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION U.S. DEPARTMENT OF LABOR AND NATIONAL FRAMERS COUNCIL, NATIONAL ASSOCIATION OF HOMEBUILDERS, CALIFORNIA FRAMING CONTRACTORS ASSOCIATION, INTERNATIONAL STAPLE, NAIL AND TOOL ASSOCIATION RESIDENTIAL CONTRACTORS ASSOCIATION, AND STRUCTURAL BUILDING COMPONENTS ASSOCIATION

The Occupational Safety and Health Administration (OSHA), the National Framers Council (NFC), the National Association of Homebuilders (NAHB), the California Framing Contractors Association (CFCA), the International Staple, Nail and Tool Association (ISANTA), the Residential Contractors Association (REA), and the Structural Building Components Association (SBCA) recognize the value of establishing a collaborative relationship to foster safer and more healthful American workplaces.

OSHA and the above-mentioned parties hereby form an Alliance to provide the Alliance Program Partner members and participants, as well as other government and non-government organizations, with information, guidance and access to training resources. These resources will help the Alliance protect employees, including Spanish-speaking, and other high-risk or vulnerable "hard-to-reach" workers, from construction health and safety hazards and promote a better understanding of worker rights and the responsibilities of employers under the Occupational safety and Health Act (OSH Act).

The Alliance will particularly focus on falls, struck-by and other hazards related to wood frame construction. In developing this Alliance, OSHA and the above-mentioned parties recognize that OSHA's State Plan and Consultation Project partners are an integral part of the OSHA national effort, and that information about the products and activities of the Alliance may be shared with these partners for the advancement of common goals.

This agreement provides a framework and objectives for the Alliance's activities. Alliance participants will summarize specific activities and timeframes for completion in a written work plan.

Training and Education

The Participants will work together to achieve the following training and education objectives:

. Develop and implement a “Vertical Framing Plan” which will be a guidance document with a step-by- step plan to address fall protection feasibility at all phases of wood frame construction. . Publish and promote the Vertical Framing Plan nationwide through training and outreach.

Raising Awareness of OSHA's Rulemaking and Enforcement Initiatives

The Participants will work together to achieve the following raising awareness of OSHA's rulemaking and enforcement objectives:

. Share information on OSHA's National Emphasis Programs, Regulatory Agenda, and opportunities to participate in the rulemaking process. . Disseminate information on occupational safety and health laws and standards, including the rights and responsibilities of workers and employers.

Outreach and Communication

The Participants will work together to achieve the following outreach and communication objectives:

. Develop information such as toolbox talks and best practices documents on the recognition and prevention of workplace hazards, and to develop ways of communicating such information (e.g., print

26 and electronic media, electronic assistance tools, and Alliance members' websites) to employers and workers in the industry. . Speak, exhibit, or appear at Alliance members’ conferences, local meetings, or other events. . Share information among OSHA personnel and construction industry safety and health professionals regarding new technologies in construction and effective best practices for conducting work safely through training programs, workshops, seminars, and lectures (or any other applicable forum) developed by the participants.

OSHA's Alliances provide parties an opportunity to participate in a voluntary cooperative relationship with OSHA for purposes such as raising awareness of OSHA's rulemaking and enforcement initiatives, training and education, and outreach and communication. These Alliances have proved to be valuable tools for both OSHA and its Alliance participants. By entering into an Alliance with a party, OSHA is not endorsing or promoting, nor does it intend to endorse or promote, any of that party's products or services.

An implementation team made up of representatives of each organization will meet to develop a work plan, determine working procedures, and identify the roles and responsibilities of the participants. In addition, they will meet at least two times per year to track and share information on activities and results in achieving the goals of the Alliance. OSHA team members will include representatives of the Directorate of Cooperative and State Programs and any other offices as appropriate. OSHA will encourage State Plan States' and OSHA On-site Consultation Projects' participation on the team.

27 This agreement will remarn in effect fortwo years. Any signatory may terminate it for any reason at any time, provided they give 30-days written notice. The agreement may be modified at any time with the written concurrence of all signatories.

Signed on ______,,2019.

.· I? /zo/; Ken Nishiyama Atha '() Date Ken Shiffle �/0 Regional Administrator Past President & Safety Com Occupational Safety and Health Administration National Framers Council ,/�� __03/05/19 c_(��:�� . .-·-·-·· / :..,____-:--__[dj·11, l I 19. Greg Ugalde Date Jodi Blom I oJte Chairman of the Board Executive Director National Association of Home Builders CaliforniaFraming Contractors Association

,/4/4mn _,,, � Je He1l?'Y � ��-::r=r=is=====-_::__ ��---Executive Director Boa rd President InternationalStaple, Nail & Tool Association Residential Contractors Association (ISANTA)

Kirk Grundahl Date Executive Director Structural Building Components Association (SBCA)

28 Construction Safety Education, Training, and Research Subcommittee 2019 Spring Leadership Meeting

Agenda Brief: 2020 IBS Education – Safety

Agenda Objective: Update the committee members on the safety education programs being considered for to 2020 IBS.

Points for review:

The International Builders’ Show offers the most up-to-date and innovative education the industry has to offer. It features sessions in eight tracks, taught by renowned building industry experts from across the country. With topics ranging from sales and marketing to construction and codes, there is literally something for everyone. There were three (3) 60-minute sessions submitted for IBS 2020 for the OSHA, Construction Safety & Health, Workers Compensation track:

• Expect the Unexpected: How to Survive an OSHA Inspection and Come Out Citation Free! Description: OSHA enforcement and regulatory activity are at historic highs and OSHA continues to focus resources on the home building industry. Residential construction is a prime target for OSHA and builders and the various trades need to expect and prepare for a visit from OSHA. This 60-minute, interactive session will provide builders the information they need to "expect the unexpected" during an OSHA inspection and come out of it with no citations. It will also focus on the unique nature of residential construction environments with general contractors and multiple subcontractors and how general contractors can best insulate themselves from multi-employer worksite liability.

• FALL PERFECTION: Minimum requirements for a Comprehensive Managed Fall Protection Plan Description: Creating and Implementing a Comprehensive Fall Protection Program: When it comes to fall protection we want to create a work environment with zero risk. This begins with a thorough Fall Hazard Risk Assessment. In this presentation, we will discuss how to identify, categorize and address various types of fall hazards forming the foundation of a fall protection program. Following the creation of a program, rigorous employee education and training are required so we will discuss how to implement this phase, followed by thorough and continuous, inspection and maintenance of fall protection equipment.

• A Jobsite Danger You Can’t See: Preventing Damage to Buried Utilities during Excavation Description: More than 1,200 times a day nationwide a buried utility line is damaged by excavation, putting workers at risk of injury or death, causing costly construction delays and attracting negative news coverage. This session will offer recommendations for the developers, planners, designers and engineers who work in partnership with excavators to prevent these potentially dangerous incidents from happening at their jobsites. Attendees will see specific examples of utility damage incidents at building sites and how they occurred, receive recommendations for specific excavation safety mandates for excavating subcontractors and leave with the knowledge they need to secure a jobsite in the event of an incident involving natural gas.

Points for discussion:

• What topics proposed this year are the most compelling and appropriate for what is going on in the industry regarding safety? 29 Construction Safety Education, Training, and Research Subcommittee 2019 Spring Leadership Meeting

Agenda Brief: Update: Safety 365 Campaign

Agenda Objective: Provide an update to the committee on the 2019 NAHB Safety 365 Campaign.

Points for review:

• In 2019, NAHB is continuing the Safety 365 campaign that will highlight a different aspect of construction workplace safety each month, as well as promote safety off-the job, with the focus on supporting construction safety every day--365 days a year: #safety365.

• The campaign with align with NAHB’s current educational resources, safety training materials, and news updates that are intended to help educate employers and workers on the various safety and health hazards the industry faces on the jobsite, and to better understand and comply with Occupational Safety and Health Administration (OSHA) requirements.

• The NAHB safety sponsorships were created as part of an effort to promote safety in the housing industry and the Safety 365 campaign is supported by NAHB’s safety sponsors:

o Official Safety Sponsor – Builders Mutual Insurance Company o Diamond Safety Sponsor – James Hardie

• 2019 NAHB Safety 365 editorial calendar:

o January – NAHB/Builders Mutual Safety Awards For Excellence (SAFE) o February – IBS Jobsite Safety Zone o March – Ladder Safety and Chemical Safety, in conjunction with the American Ladder Institute Ladder Safety Month and National Poison Prevention Week (March 17-23) o April – Safe Operation of Mobile Equipment & Safe Driving, in conjunction with Distracted Driving Month and National Work Zone Awareness Week (April 8-12) o May – Fall Prevention, in conjunction with OSHA National Stand-down to Prevent Falls (May 6-10) o June – Trenching Safety, in conjunction with National Utility Contractors Association Trenching Safety Stand-down (June 17-21) o July – Overexertion & Heat Stress o August – Scaffold Safety o September – Disaster Preparedness, in conjunction with Department of Homeland Security National Preparedness Month o October – Fire safety, in conjunction with National Fire Protection Association National Fire Prevention Week (October 7-11) o November – Dangers of Fatigue, in conjunction with the National Sleep Foundation Drowsy Driving Prevention Week o December – Winter Safety

Points for discussion:

• Are there other construction safety issues/topics that should be added to the Safety 365 Campaign in 2019?

• How can NAHB increase member awareness of the Safety 365 Campaign?

30 Construction Safety Education, Training, and Research Subcommittee 2019 Spring Leadership Meeting

Agenda Brief: 2019 Susan Harwood Training Grant Program

Agenda Objective: Provide an update to the committee on the OSHA Susan Harwood Training Grant.

Points for review:

• May 3, 2019 – OSHA announces the availability of $10.5 million in Susan Harwood Training Grants for nonprofit organizations. Grants are available in three areas:

o Targeted Topic Training grants support educational programs that address identifying and preventing workplace hazards. These grants require applicants to conduct training on OSHA-designated workplace safety and health hazards.

o Training and Educational Materials Development grants support the development of quality classroom-ready training and educational materials that focus on identifying and preventing workplace hazards.

o Capacity Building grants support organizations in developing new capacity for conducting workplace safety and health training programs and must provide training and education based on identified needs of a specific audience or a set of related topics.

• The Harwood Training Grant program supports in-person, hands-on training for workers and employers in small businesses; industries with high injury, illness and fatality rates; and vulnerable workers, who are underserved, have limited English proficiency or are temporary workers.

• NAHB and the Job-site Safety Institute (JSI), a non-profit organization, intend on applying for a Targeted Topic Training grant.

o The proposal is to continue conducting the Fall Prevention in Residential Construction, which is a 4-hour training program focused on helping employees and employers identify and avoid fall hazards on the jobsite, with the training delivered, in English or Spanish, at NAHB-affiliated state and local associations at no cost to members.

o This training will be an extension of the previous $150,700 Harwood grant JSI and NAHB received in 2017, where we conducted 39 training sessions and a total of 721 workers participated.

• July 2, 2019 – Harwood grant applications due.

Points for discussion:

• How can we generate additional interest in the Fall Prevention in Residential Construction training?

31 Construction Safety Education, Training, and Research Subcommittee 2019 Spring Leadership Meeting

Agenda Brief: Education Material Development: Duty of Care for Safety on Multi-Employer Jobsites

Agenda Objective: Discuss what education materials could be useful for NAHB members as it relates to the duty of care for safety for general contractors on multi-employer jobsites.

Points for review:

• February 2019 – At the International Builders’ Show, NAHB members discussed why residential general contractors need to pay attention to workplace safety issues with trade contractors and it was noted that OSHA’s multi-employer citation policy applies.

o OSHA’s Multi-Employer Citation Policy (DIRECTIVE NUMBER: CPL 2-00.124, Dec. 10, 1999) permits OSHA to cite more than one employer (including the general contractor) on multi-employer worksites for a hazardous condition that violates an OSHA standard.

o OSHA engages in a two-step process to determine whether an employer should be cited. 1st, OSHA determines whether the employer in question was a creating, exposing, correcting or controlling employer. 2nd, if the employer falls into one of these categories, OSHA next considers whether the employer met its safety obligations. The extent of the actions required of employers to meet their obligations varies based on which category applies.

- Creating employer is the employer that created the hazardous condition that violates an OSHA standard.

- Exposing employer includes those employers on-site whose employees are exposed to the hazard, which may have been created by another employer.

- Correcting employer is an employer responsible for correcting a hazard on- site.

- Controlling employer is an employer that has general supervisory authority over the worksite, including the power to correct safety and health violations or require others to correct them.

• 2nd Quarter 2019 – NAHB will begin developing streamlined educational material for general contractors, typically as the controlling employer, that outlines their duties under OSHA’s multi-employer citation policy to exercise “reasonable care” to prevent and detect violations on the worksite and promote this job site safety information to NAHB’s members.

Points for discussion:

• What education materials could be useful for NAHB members as it relates to the duty of care for safety for general contractors on multi-employer jobsites (i.e., 1-page fact sheets, webinar, podcast, video, etc.)?

32 DIRECTIVE NUMBER: CPL 2-00.124 EFFECTIVE DATE: December 10,1999 SUBJECT: Multi-Employer Citation Policy

ABSTRACT

Purpose: To Clarify the Agency’s multi-employer citation policy.

Scope: OSHA-Wide

References: OSHA Instruction CPL 2.103 ( the FIRM)

Suspensions: Chapter III, Paragraph C. 6. of the FIRM is suspended and replaced by this Directive.

State Impact: This Instruction describes a Federal Program Change. Notification of State intent is required, but adoption is not.

Action Offices: National, Regional and Area Offices

Originating Office: Directorate of Construction

Contact: Carl Sall (202) 693 2345 Directorate of Construction N3468 FPB 200 Constitution Ave., NW Washington DC 20210

By and Under the Authority of R. Davis Layne Deputy Assistant Secretary, OSHA

Cover Sheet

33 TABLE OF CONTENTS

I. Purpose...... 1

II. Scope...... 1

III. Suspension...... 1

IV. References...... 1

V. Action Information...... 1

VI. Federal Program Change...... 1

VII. Force and Effect of Revised Policy...... 1

VIII. Changes in Web Version of FIRM...... 1

IX. Background...... 1

A. Continuation of Basic Policy...... 1 B. No Changes in Employer Duties...... 2

X. Multi-employer Worksite Policy...... 2

A. Multi-employer Worksites...... 2 B. The Creating Employer ...... 2 C. The Exposing Employer...... 3 D. The Correcting Employer...... 5 E. The Controlling Employer...... 5 F. Multiple Roles...... 12

34 I. Purpose. This Directive clarifies the Agency’s multi-employer citation policy and suspends Chapter III. C. 6. of OSHA’s Field Inspection Reference Manual (FIRM).

II. Scope. OSHA-Wide

III. Suspension. Chapter III. Paragraph C. 6. of the FIRM (CPL 2.103) is suspended and replaced by this Directive.

IV. References. OSHA Instructions:

• CPL 02-00.103; OSHA Field Inspection Reference Manual (FIRM), September 26, 1994. • ADM 08-0.1C, OSHA Electronic Directive System, December 19,1997.

V. Action Information.

A. Responsible Office. Directorate of Construction.

B. Action Offices. National, Regional and Area Offices

C. Information Offices. State Plan Offices, Consultation Project Offices

VI. Federal Program Change. This Directive describes a Federal Program Change for which State adoption is not required. However, the States shall respond via the two-way memorandum to the Regional Office as soon as the State's intent regarding the multi-employer citation policy is known, but no later than 60 calendar days after the date of transmittal from the Directorate of Federal-State Operations.

VII. Force and Effect of Revised Policy. The revised policy provided in this Directive is in full force and effect from the date of its issuance. It is an official Agency policy to be implemented OSHA-wide.

VIII. Changes in Web Version of FIRM. A note will be included at appropriate places in the FIRM as it appears on the Web indicating the suspension of Chapter III paragraph 6. C. and its replacement by this Directive, and a hypertext link will be provided connecting viewers with this Directive.

IX. Background. OSHA’s Field Inspection Reference Manual (FIRM) of September 26, 1994 (CPL 2.103), states at Chapter III, paragraph 6. C., the Agency’s citation policy for multi- employer worksites. The Agency has determined that this policy needs clarification. This directive describes the revised policy.

A. Continuation of Basic Policy. This revision continues OSHA's existing policy for

35 issuing citations on multi-employer worksites. However, it gives clearer and

36 more detailed guidance than did the earlier description of the policy in the FIRM, including new examples explaining when citations should and should not be issued to exposing, creating, correcting, and controlling employers. These examples, which address common situations and provide general policy guidance, are not intended to be exclusive. In all cases, the decision on whether to issue citations should be based on all of the relevant facts revealed by the inspection or investigation.

B. No Changes in Employer Duties. This revision neither imposes new duties on employers nor detracts from their existing duties under the OSH Act. Those duties continue to arise from the employers' statutory duty to comply with OSHA standards and their duty to exercise reasonable diligence to determine whether violations of those standards exist.

X. Multi-employer Worksite Policy. The following is the multi-employer citation policy:

A. Multi-employer Worksites. On multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard. A two-step process must be followed in determining whether more than one employer is to be cited.

1. Step One. The first step is to determine whether the employer is a creating, exposing, correcting, or controlling employer. The definitions in paragraphs (B) - (E) below explain and give examples of each. Remember that an employer may have multiple roles (see paragraph H). Once you determine the role of the employer, go to Step Two to determine if a citation is appropriate (NOTE: only exposing employers can be cited for General Duty Clause violations).

2. Step Two. If the employer falls into one of these categories, it has obligations with respect to OSHA requirements. Step Two is to determine if the employer’s actions were sufficient to meet those obligations. The extent of the actions required of employers varies based on which category applies. Note that the extent of the measures that a controlling employer must take to satisfy its duty to exercise reasonable care to prevent and detect violations is less than what is required of an employer with respect to protecting its own employees.

B. The Creating Employer

1. Step 1: Definition: The employer that caused a hazardous condition that violates an OSHA standard.

37 2. Step 2: Actions Taken: Employers must not create violative conditions. An employer that does so is citable even if the only employees exposed are those of other employers at the site.

a. Example 1: Employer Host operates a factory. It contracts with Company S to service machinery. Host fails to cover drums of a chemical despite S’s repeated requests that it do so. This results in airborne levels of the chemical that exceed the Permissible Exposure Limit.

Analysis: Step 1: Host is a creating employer because it caused employees of S to be exposed to the air contaminant above the PEL. Step 2: Host failed to implement measures to prevent the accumulation of the air contaminant. It could have met its OSHA obligation by implementing the simple engineering control of covering the drums. Having failed to implement a feasible engineering control to meet the PEL, Host is citable for the hazard.

b. Example 2: Employer M hoists materials onto Floor 8, damaging perimeter guardrails. Neither its own employees nor employees of other employers are exposed to the hazard. It takes effective steps to keep all employees, including those of other employers, away from the unprotected edge and informs the controlling employer of the problem. Employer M lacks authority to fix the guardrails itself.

Analysis: Step 1: Employer M is a creating employer because it caused a hazardous condition by damaging the guardrails. Step 2: While it lacked the authority to fix the guardrails, it took immediate and effective steps to keep all employees away from the hazard and notified the controlling employer of the hazard. Employer M is not citable since it took effective measures to prevent employee exposure to the fall hazard.

C. The Exposing Employer.

1. Step 1: Definition: An employer whose own employees are exposed to the hazard. See Chapter III, section (C)(1)(b) for a discussion of what constitutes exposure.

2. Step 2: Actions taken: If the exposing employer created the violation, it is citable for the violation as a creating employer. If the violation was created by another employer, the exposing employer is citable if it (1)

38 knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, and (2) failed to take steps consistent with its authority to protect is employees. If the exposing employer has authority to correct the hazard, it must do so. If the exposing employer lacks the authority to correct the hazard, it is citable if it fails to do each of the following: (1) ask the creating and/or controlling employer to correct the hazard; (2) inform its employees of the hazard; and (3) take reasonable alternative protective measures. In extreme circumstances (e.g., imminent danger situations), the exposing employer is citable for failing to remove its employees from the job to avoid the hazard. a. Example 3: Employer Sub S is responsible for inspecting and cleaning a work area in Plant P around a large, permanent hole at the end of each day. An OSHA standard requires guardrails. There are no guardrails around the hole and Sub S employees do not use personal fall protection, although it would be feasible to do so. Sub S has no authority to install guardrails. However, it did ask Employer P, which operates the plant, to install them. P refused to install guardrails.

Analysis: Step 1: Sub S is an exposing employer because its employees are exposed to the fall hazard. Step 2: While Sub S has no authority to install guardrails, it is required to comply with OSHA requirements to the extent feasible. It must take steps to protect its employees and ask the employer that controls the hazard – Employer P – to correct it. Although Sub S asked for guardrails, since the hazard was not corrected, Sub S was responsible for taking reasonable alternative protective steps, such as providing personal fall protection. Because that was not done, Sub S is citable for the violation. b. Example 4: Unprotected rebar on either side of an access ramp presents an impalement hazard. Sub E, an electrical subcontractor, does not have the authority to cover the rebar. However, several times Sub E asked the general contractor, Employer GC, to cover the rebar. In the meantime, Sub E instructed its employees to use a different access route that avoided most of the uncovered rebar and required them to keep as far from the rebar as possible.

Analysis: Step 1: Since Sub E employees were still exposed to some unprotected rebar, Sub E is an exposing employer. Step 2: Sub E made a good faith effort to get the general contractor to correct the hazard and took feasible measures within its control to protect its employees. Sub E is not citable for the rebar hazard.

39 D. The Correcting Employer.

1. Step 1: Definition: An employer who is engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard. This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices.

2. Step 2: Actions taken: The correcting employer must exercise reasonable care in preventing and discovering violations and meet its obligations of correcting the hazard.

a. Example 5: Employer C, a carpentry contractor, is hired to erect and maintain guardrails throughout a large, 15-story project. Work is proceeding on all floors. C inspects all floors in the morning and again in the afternoon each day. It also inspects areas where material is delivered to the perimeter once the material vendor is finished delivering material to that area. Other subcontractors are required to report damaged/missing guardrails to the general contractor, who forwards those reports to C. C repairs damaged guardrails immediately after finding them and immediately after they are reported. On this project few instances of damaged guardrails have occurred other than where material has been delivered. Shortly after the afternoon inspection of Floor 6, workers moving equipment accidentally damage a guardrail in one area. No one tells C of the damage and C has not seen it. An OSHA inspection occurs at the beginning of the next day, prior to the morning inspection of Floor 6. None of C’s own employees are exposed to the hazard, but other employees are exposed.

Analysis: Step 1: C is a correcting employer since it is responsible for erecting and maintaining fall protection equipment. Step 2: The steps C implemented to discover and correct damaged guardrails were reasonable in light of the amount of activity and size of the project. It exercised reasonable care in preventing and discovering violations; it is not citable for the damaged guardrail since it could not reasonably have known of the violation.

E. The Controlling Employer.

1. Step 1: Definition: An employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. Control can be

40 established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice. Descriptions and examples of different kinds of controlling employers are given below.

2. Step 2: Actions Taken: A controlling employer must exercise reasonable care to prevent and detect violations on the site. The extent of the measures that a controlling employer must implement to satisfy this duty of reasonable care is less than what is required of an employer with respect to protecting its own employees. This means that the controlling employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired.

3. Factors Relating to Reasonable Care Standard. Factors that affect how frequently and closely a controlling employer must inspect to meet its standard of reasonable care include:

a. The scale of the project;

b. The nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses;

c. How much the controlling employer knows both about the safety history and safety practices of the employer it controls and about that employer’s level of expertise.

d. More frequent inspections are normally needed if the controlling employer knows that the other employer has a history of non- compliance. Greater inspection frequency may also be needed, especially at the beginning of the project, if the controlling employer had never before worked with this other employer and does not know its compliance history.

e. Less frequent inspections may be appropriate where the controlling employer sees strong indications that the other employer has implemented effective safety and health efforts. The most important indicator of an effective safety and health effort by the other employer is a consistently high level of compliance. Other indicators include the use of an effective, graduated system of enforcement for non-compliance with safety and health requirements coupled with regular jobsite safety meetings and safety training.

41 4. Evaluating Reasonable Care. In evaluating whether a controlling employer has exercised reasonable care in preventing and discovering violations, consider questions such as whether the controlling employer:

a. Conducted periodic inspections of appropriate frequency (frequency should be based on the factors listed in G.3.);

b. Implemented an effective system for promptly correcting hazards;

c. Enforces the other employer’s compliance with safety and health requirements with an effective, graduated system of enforcement and follow-up inspections.

5. Types of Controlling Employers.

a. Control Established by Contract. In this case, the Employer Has a Specific Contract Right to Control Safety: To be a controlling employer, the employer must itself be able to prevent or correct a violation or to require another employer to prevent or correct the violation. One source of this ability is explicit contract authority. This can take the form of a specific contract right to require another employer to adhere to safety and health requirements and to correct violations the controlling employer discovers.

(1) Example 6: Employer GH contracts with Employer S to do sandblasting at GH’s plant. Some of the work is regularly scheduled maintenance and so is general industry work; other parts of the project involve new work and are considered construction. Respiratory protection is required. Further, the contract explicitly requires S to comply with safety and health requirements. Under the contract GH has the right to take various actions against S for failing to meet contract requirements, including the right to have non-compliance corrected by using other workers and back-charging for that work. S is one of two employers under contract with GH at the work site, where a total of five employees work. All work is done within an existing building. The number and types of hazards involved in S’s work do not significantly change as the work progresses. Further, GH has worked with S over the course of several years. S provides periodic and other safety and health training and uses a graduated system of enforcement of safety and health rules. S has consistently had a high level of compliance at its previous jobs and at this site. GH monitors S by a combination of weekly inspections, telephone discussions and a

42 weekly review of S’s own inspection reports. GH has a system of graduated enforcement that it has applied to S for the few safety and health violations that had been committed by S in the past few years. Further, due to respirator equipment problems S violates respiratory protection requirements two days before GH’s next scheduled inspection of S. The next day there is an OSHA inspection. There is no notation of the equipment problems in S’s inspection reports to GH and S made no mention of it in its telephone discussions.

Analysis: Step 1: GH is a controlling employer because it has general supervisory authority over the worksite, including contractual authority to correct safety and health violations. Step 2: GH has taken reasonable steps to try to make sure that S meets safety and health requirements. Its inspection frequency is appropriate in light of the low number of workers at the site, lack of significant changes in the nature of the work and types of hazards involved, GH’s knowledge of S’s history of compliance and its effective safety and health efforts on this job. GH has exercised reasonable care and is not citable for this condition.

(2) Example 7: Employer GC contracts with Employer P to do painting work. GC has the same contract authority over P as Employer GH had in Example 6. GC has never before worked with P. GC conducts inspections that are sufficiently frequent in light of the factors listed above in (G)(3). Further, during a number of its inspections, GC finds that P has violated fall protection requirements. It points the violations out to P during each inspection but takes no further actions.

Analysis: Step 1: GC is a controlling employer since it has general supervisory authority over the site, including a contractual right of control over P. Step 2: GC took adequate steps to meet its obligation to discover violations. However, it failed to take reasonable steps to require P to correct hazards since it lacked a graduated system of enforcement. A citation to GC for the fall protection violations is appropriate.

(3) Example 8: Employer GC contracts with Sub E, an electrical subcontractor. GC has full contract authority over Sub E, as in Example 6. Sub E installs an electric panel box exposed to the weather and implements an assured equipment grounding conductor program, as required under the contract. It fails to

43 connect a grounding wire inside the box to one of the outlets. This incomplete ground is not apparent from a visual inspection. Further, GC inspects the site with a frequency appropriate for the site in light of the factors discussed above in (G)(3). It saw the panel box but did not test the outlets to determine if they were all grounded because Sub E represents that it is doing all of the required tests on all receptacles. GC knows that Sub E has implemented an effective safety and health program. From previous experience it also knows Sub E is familiar with the applicable safety requirements and is technically competent. GC had asked Sub E if the electrical equipment is OK for use and was assured that it is.

Analysis: Step 1: GC is a controlling employer since it has general supervisory authority over the site, including a contractual right of control over Sub E. Step 2: GC exercised reasonable care. It had determined that Sub E had technical expertise, safety knowledge and had implemented safe work practices. It conducted inspections with appropriate frequency. It also made some basic inquiries into the safety of the electrical equipment. Under these circumstances GC was not obligated to test the outlets itself to determine if they were all grounded. It is not citable for the grounding violation. b. Control Established by a Combination of Other Contract Rights: Where there is no explicit contract provision granting the right to control safety, or where the contract says the employer does not have such a right, an employer may still be a controlling employer. The ability of an employer to control safety in this circumstance can result from a combination of contractual rights that, together, give it broad responsibility at the site involving almost all aspects of the job. Its responsibility is broad enough so that its contractual authority necessarily involves safety. The authority to resolve disputes between subcontractors, set schedules and determine construction sequencing are particularly significant because they are likely to affect safety. (NOTE: citations should only be issued in this type of case after consulting with the Regional Solicitor’s office).

(1) Example 9: Construction manager M is contractually obligated to: set schedules and construction sequencing, require subcontractors to meet contract specifications, negotiate with trades, resolve disputes between subcontractors, direct work and make purchasing decisions, which affect safety. However, the

44 contract states that M does not have a right to require compliance with safety and health requirements. Further, Subcontractor S asks M to alter the schedule so that S would not have to start work until Subcontractor G has completed installing guardrails. M is contractually responsible for deciding whether to approve S’s request.

Analysis: Step 1: Even though its contract states that M does not have authority over safety, the combination of rights actually given in the contract provides broad responsibility over the site and results in the ability of M to direct actions that necessarily affect safety. For example, M’s contractual obligation to determine whether to approve S’s request to alter the schedule has direct safety implications. M’s decision relates directly to whether S’s employees will be protected from a fall hazard. M is a controlling employer. Step 2: In this example, if M refused to alter the schedule, it would be citable for the fall hazard violation.

(2) Example 10: Employer ML’s contractual authority is limited to reporting on subcontractors’ contract compliance to owner/developer O and making contract payments. Although it reports on the extent to which the subcontractors are complying with safety and health infractions to O, ML does not exercise any control over safety at the site.

Analysis: Step 1: ML is not a controlling employer because these contractual rights are insufficient to confer control over the subcontractors and ML did not exercise control over safety. Reporting safety and health infractions to another entity does not, by itself (or in combination with these very limited contract rights), constitute an exercise of control over safety. Step 2: Since it is not a controlling employer it had no duty under the OSH Act to exercise reasonable care with respect to enforcing the subcontractors’ compliance with safety; there is therefore no need to go to Step 2. c. Architects and Engineers: Architects, engineers, and other entities are controlling employers only if the breadth of their involvement in a construction project is sufficient to bring them within the parameters discussed above.

(1) Example 11: Architect A contracts with owner O to prepare contract drawings and specifications, inspect the work,

45 report to O on contract compliance, and to certify completion of work. A has no authority or means to enforce compliance, no authority to approve/reject work and does not exercise any other authority at the site, although it does call the general contractor’s attention to observed hazards noted during its inspections.

Analysis: Step 1: A’s responsibilities are very limited in light of the numerous other administrative responsibilities necessary to complete the project. It is little more than a supplier of architectural services and conduit of information to O. Its responsibilities are insufficient to confer control over the subcontractors and it did not exercise control over safety. The responsibilities it does have are insufficient to make it a controlling employer. Merely pointing out safety violations did not make it a controlling employer. NOTE: In a circumstance such as this it is likely that broad control over the project rests with another entity. Step 2: Since A is not a controlling employer it had no duty under the OSH Act to exercise reasonable care with respect to enforcing the subcontractors’ compliance with safety; there is therefore no need to go to Step 2.

(2) Example 12: Engineering firm E has the same contract authority and functions as in Example 9.

Analysis: Step 1: Under the facts in Example 9, E would be considered a controlling employer. Step 2: The same type of analysis described in Example 9 for Step 2 would apply here to determine if E should be cited. d. Control Without Explicit Contractual Authority . Even where an employer has no explicit contract rights with respect to safety, an employer can still be a controlling employer if, in actual practice, it exercises broad control over subcontractors at the site (see Example 9). NOTE: Citations should only be issued in this type of case after consulting with the Regional Solicitor’s office.

(1) Example 13: Construction manager MM does not have explicit contractual authority to require subcontractors to comply with safety requirements, nor does it explicitly have broad contractual authority at the site. However, it exercises control over most aspects of the subcontractors’ work anyway, including aspects that relate to safety.

46 Analysis: Step 1: MM would be considered a controlling employer since it exercises control over most aspects of the subcontractor’s work, including safety aspects. Step 2: The same type of analysis on reasonable care described in the examples in (G)(5)(a) would apply to determine if a citation should be issued to this type of controlling employer.

F. Multiple Roles.

1. A creating, correcting or controlling employer will often also be an exposing employer. Consider whether the employer is an exposing employer before evaluating its status with respect to these other roles.

2. Exposing, creating and controlling employers can also be correcting employers if they are authorized to correct the hazard.

47 Construction Safety Education, Training, and Research Subcommittee 2019 Spring Leadership Meeting

Agenda Brief: Update: NHE/NAHB/Job-Site Safety Institute Video Toolbox Talks Agenda Objective: Provide an update to the committee on the status of the development of video toolbox talks.

Points for Review: • As part of its online video library, NAHB has been working alongside the Job-Site Safety Institute and the National Housing Endowment to develop a series of video safety toolbox talks to provide workers in the residential construction industry relevant information on hazard recognition and injury prevention across a wide variety of safety topics.

• These videos are delivered in both English and Spanish versions and are supplemented with a summarized written toolbox talk of each topic also available online in the library.

• January 31, 2019 – NAHB has completed 24 of 36 videos (English/Spanish) with an overall budget of $100,000 for 2 years:

1. Ladder Safety 7. Safe Driving 2. Nail Gun Safety 8. Silica 3. Housekeeping and Fire Safety 9. Scaffold Safety 4. Personal Protective Equipment 10. Chemical Safety/Hazard Communication 5. Heat Stress 11. Confined Space 6. Fall Protection 12. Safe Lifting/Material Handling

• April 2019 – NAHB has begun development of the following video toolbox talks, with delivery date of June 30, 2019:

13. Guardrails 14. Saw Safety 15. Electrical Safety

• September 2019 – The following video toolbox talks will be completed:

16. Struck-by/Caught-in between 17. Trenching and Excavation 18. Trade Specific topic – Roofing Safety

• The videos can be found on the NAHB TV YouTube page under the safety playlists in both English and Spanish. NAHB continues to promote all videos through the NAHBNow Blog and the #safety365 campaign.

Points for Discussion:

• Are the topics for the final video toolbox talks appropriate? If not, what safety topic(s) should be covered?

• How can NAHB reach a wider audience with the video toolbox talks?