Rules + Regs

OSHA Emergency Temporary Standard does not apply to construction industry

On June 10, the Occupational Safety and Health Administration issued an Emergency Temporary Standard designed to better protect employees from exposure to COVID-19 within the health care industry. OSHA also issued new guidance to employers in other industries to further protect employees from COVID-19 with a special emphasis on industries noted for prolonged close contact, such as meat processing, manufacturing, grocery and high-volume retail. The guidance is intended to help employers identify COVID-19 exposure risks to workers who are unvaccinated or otherwise at risk and take appropriate steps to help prevent exposure and infection.

In recent months, NRCA provided input to OSHA on several occasions outlining why a COVID-19 Emergency Temporary Standard is unnecessary and even counterproductive for the construction industry. NRCA is pleased with OSHA’s decision to not include the construction industry in the Emergency Temporary Standard and commends agency officials for listening to its concerns. NRCA looks forward to continuing to work with the Biden administration regarding workplace safety and other policies of importance to the roofing industry.

OSHA changes vaccine-recording requirements

On May 21, the Occupational Safety and Health Administration shifted its policy and said employers do not need to record adverse reactions from COVID-19 vaccines on their OSHA 300 logs.

The new guidance is in effect at least until May 2022 and applies regardless of whether an employer requires, recommends or incentivizes employees to receive COVID-19 vaccinations. It rescinds previous guidance that said employers that require their employees to be vaccinated as a condition of employment must record any adverse reactions to the vaccine if the reaction is work-related (if getting the vaccine is a condition of employment, it is work-related); a new case; or meets one or more of the general recording criteria specified in 29 CFR 1904.7.

In its updated guidance, OSHA said it is working to encourage COVID-19 vaccinations and “does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccinations.” The agency also wants to avoid disincentivizing employers’ vaccination efforts.

Attorney Phillip Russell with Ogletree, Deakins, Nash, Smoak & Stewart, Greenville, S.C., says the policy change means construction employers will not have to worry about potential negative effects from an increase in recorded illnesses and injuries, such as higher workers’ compensation costs, fewer bidding opportunities and the number of future OSHA inspections.

Pittsburgh mayor signs order to combat construction fraud

Pittsburgh Mayor William Peduto has signed an executive order to combat construction fraud, promote worker safety and protect city tax revenue, according to constructiondive.com. Peduto acted in response to recent incidents involving unreported cash payments by subcontractors working on construction projects.

The Construction Fraud Executive Order cracks down on construction companies that commit tax, insurance and workers’ compensation fraud. It also aims to stop the practice of paying workers in cash to avoid taxes. According to a news release from Peduto’s office, such moves allow corrupt firms to outbid honest ones and fuel a cycle of lost wages, decreased tax revenue and unsafe work sites.

The order stems from the findings of the city’s Joint Task Force on Construction Industry Fraud, which was founded in December 2018 and forwarded its final recommendations in April. Documented cases of fraud and labor violations were gathered by trained construction industry professionals after visiting multiple job sites and conducting on-site worker interviews.

Peduto’s order directs Pittsburgh’s Department of Permits, Licenses and Inspections and Finance Department to form a committee with several local building trade groups to examine city code and craft language to define the term “construction contractor” and create more accountable and transparent construction development processes. It also mandates contractors or developers receiving a city of Pittsburgh public subsidy must report all workers on the project site.

In addition, the Department of Permits, Licenses and Inspections will list the names of all construction contractors on the city’s BuildingEye website to enhance transparency and accountability; discourage the dishonest use of subcontractors to avoid paying taxes and committing fraud; and raise awareness regarding companies involved in Pittsburgh construction projects.

DOL withdraws independent contractor rule

On May 6, the Department of Labor withdrew the Independent Contractor Status Under the Fair Labor Standards Act final rule, which was issued by the previous administration in January, to maintain workers’ rights to minimum wage and overtime compensation protections of the Fair Labor Standards Act, according to dol.gov.

DOL listed the following reasons for withdrawing the rule:

  • The independent contractor rule was in tension with FLSA’s text and purpose, as well as relevant judicial precedent.
  • The rule’s prioritization of two “core factors” for determining employee status under the FLSA would have undermined the longstanding balancing approach of the economic realities test and court decisions requiring a review of the totality of the circumstances related to the employment relationship.
  • The rule would have narrowed the facts and considerations involved when analyzing whether a worker is an employee or an independent contractor, resulting in workers losing FLSA protections.

The FLSA includes provisions that require covered employers to pay employees at least the federal minimum wage for every hour they work and overtime compensation at not less than 1 1/2 times their regular rate of pay for every hour they work over 40 hours in a workweek. FLSA protections do not apply to independent contractors.

Additionally, the department anticipates the independent contractor rule’s withdrawal will avoid a reduction in workers’ access to benefits such as health insurance, retirement plans, unemployment insurance and workers’ compensation coverage.

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