Regulatory review

NRCA advocates for the roofing industry during the Trump administration's review of OSHA regulations

As the Trump administration reviews many of the Occupational Safety and Health Administration (OSHA) regulations issued under the Obama administration, NRCA continues working to address roofing industry employers' concerns. Significant progress is being made to modify or clarify OSHA standards and reduce burdens on employers without compromising employee safety.

Workplace injuries and illnesses

In its Spring 2018 Regulatory Agenda, OSHA indicated it was considering revisions to its "Improve Tracking of Workplace Injuries and Illnesses" regulation. Issued in May 2016, the regulation requires employers to electronically submit workplace injury and illness records to OSHA. Companies that have 250 or more employees in high-hazard industries (including roofing) must electronically submit OSHA Forms 300, 300A and 301 annually; companies that have between 20 and 249 employees only are required to submit OSHA Form 300A annually. The regulation also requires employers to inform employees of their right to report workplace injuries and illnesses and prohibits discrimination against employees who do so.

NRCA and its members have had serious concerns with the regulation since it was first proposed in 2014. These concerns include the possible misuse of private employee information contained in submitted forms by third parties that potentially could gain access to them; new costs associated with the submittal requirements for employers without any discernible improvement in workplace safety; and significant ambiguity in the anti-discrimination provisions that could cause uncertainty and problems for employers and employees. NRCA outlined these concerns in comments filed with OSHA before the regulation was issued, and NRCA testified before the House of Representatives' Subcommittee on Workforce Protections, which has oversight authority over OSHA, to make Congress aware of NRCA members' views. Despite NRCA's efforts, OSHA issued the final regulation in 2016.

OSHA now is reviewing the workplace injuries and illnesses regulation, and in August issued a Notice of Proposed Rulemaking (NPRM) containing modifications. Specifically, the proposed rule amends the original regulation to require all companies that have 250 or more employees to electronically submit information only from Form 300A to OSHA, eliminating the current requirement for such companies to also submit Forms 300 and 301. OSHA is reducing the filing requirements to help protect employees' identifiable information and reduce the risk employees' information could be requested and provided under the Freedom of Information Act. The NPRM doesn't make any changes to the current requirement for companies in hazardous industries that have between 20 and 249 employees to annually submit Form 300A electronically. The NPRM does add a requirement for all companies to include their Employer Identification Numbers with their workplace injuries and illnesses submissions.

In response to the NPRM, NRCA filed comments with OSHA supporting the agency's proposed elimination of the requirement for companies that have 250 or more employees to submit Forms 300 and 301 electronically. However, by leaving the requirement for covered employers to submit Form 300A in place, OSHA is still putting employers and employees at risk for improper disclosure of sensitive information. Consequently, NRCA urges OSHA to revise its proposal to also eliminate the required filing of Form 300A or take necessary steps to ensure such information is not accessible to the public. Additionally, NRCA believes OSHA should address the ambiguity of the regulation's anti-discrimination provisions to clarify how such provisions will improve employee safety. OSHA will review public comments received about the NPRM and issue a final rule in the coming months.

Respirable crystalline silica

NRCA also continues working with OSHA to explore possible modifications to the agency's "Occupational Exposure to Respirable Crystalline Silica" regulation governing exposure to respirable crystalline silica (RCS) in the workplace.

Issued in March 2016 and effective for construction industry employers in September 2017, the regulation was opposed by NRCA in numerous comments and hearing testimony during the standard's development. Although NRCA recognizes the need to take reasonable measures to protect workers who are exposed to RCS, the standard's compliance requirements for meeting drastically reduced RCS exposure levels create new, dangerous fall and trip hazards for roofing workers. Although OSHA addressed some of NRCA's concerns before issuing the final regulation, NRCA believes more work needs to be done to properly balance the potential for RCS exposure with other serious risks roofing workers face on the job.

Following implementation of the silica regulation, NRCA developed an array of tools for contractors to use to ensure their compliance with the new regulation, including typical job-site silica exposure testing; additional testing is planned to supplement NRCA's database, which can be viewed by clicking here along with other silica regulation resources.

In conjunction with other industry associations in the Construction Industry Safety Coalition, NRCA also continues working with OSHA officials to address aspects of the regulation that are problematic for construction contractors.

In August, OSHA released 53 frequently asked questions for the construction industry designed to provide guidance to employers and employees in their efforts to comply with the regulation. NRCA provided input to OSHA regarding the formulation of the questions, which are extensive and organized by topic. A short introductory paragraph is included for each group of questions and answers to provide background information about the underlying regulatory requirements. The development of the questions stemmed from industry litigation efforts challenging the legality of OSHA's regulation, which ultimately was upheld by the courts in December 2017. OSHA's frequently asked questions are available on NRCA's silica regulation resources page.

OSHA is expected eventually to issue a formal Request for Information soliciting public comments regarding employers' operating experiences after the regulation's implementation. The agency then will consider regulation modifications based on public comments. NRCA will continue working with OSHA officials to address the roofing industry's remaining concerns regarding the silica regulation.

A positive outlook

NRCA appreciates the opportunity to work with the Trump administration to review OSHA regulatory issues. During NRCA's Fall Meetings and Legislative Conference in October 2017, Acting Assistant Secretary of Labor for OSHA Loren Sweatt addressed NRCA members regarding OSHA policy. Such an encounter exemplifies how NRCA maintains an open dialogue with OSHA to address matters of importance to the roofing industry.

NRCA also is looking forward to the Senate's confirmation of Scott Mugno, former vice president of safety, sustainability and vehicle maintenance at FedEx and President Trump's nominee for OSHA assistant secretary of labor. NRCA strongly supports Mugno's nomination after working with him regarding OSHA policy matters on the U.S. Chamber of Commerce's Labor Relations Committee in recent years. At OSHA, Mugno is expected to focus on promoting greater levels of education and compliance assistance with a goal to reduce regulatory burdens on employers without compromising safety. NRCA believes Mugno's leadership at OSHA could broaden opportunities to improve OSHA regulatory policy in the future.

In the meantime, NRCA will continue working with OSHA in many capacities to achieve workplace safety policies based on sound risk management principles that will benefit industry employers and employees.

Duane L. Musser is NRCA's vice president of government relations.

This column is part of Rules + Regs. Click here to read additional stories from this section.


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