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OSHA Again Delays Full Enforcement Of New Residential Roofing Directive
By Bruce Rolfsen as reported in the BNA Construction Labor Report on 2/23/12 Full enforcement of the 2010 compliance directive for residential roofing once again will be delayed, the Labor Department's Occupational Safety and Health Administration announced Feb. 15. The new start date is Sept. 15, a six-month extension of the current March 15 deadline. The latest delay marks the third time OSHA has held off full implementation of the compliance directive, originally slated to take effect June 16, 2011. The directive explains how OSHA will enforce the standard for fall protection, Duty to Have Fall Protection (29 C.F.R. § 1926.501(b)(13)), and replaces an “interim” directive in use since 1995, the Interim Fall Protection Compliance Guidelines for Residential Construction (STD 03-00-001). Just two months ago, OSHA officials touted what they claimed was roofing contractors' growing acceptance of the directive, even though industry officials continued to raise objections (57 CLR 1330, 12/15/11). Tom Shanahan, associate executive director of the National Roofing Contractors Association, sees the change as an indication OSHA is taking seriously the industry's concerns about the directive. “We think it is a very good thing in the sense that OSHA is listening,” Shanahan told Bloomberg BNA Feb. 15. “It is a very helpful step in addressing issues.” Roofing association leaders anticipate meeting with OSHA officials in the near future, he added. ‘Temporary’ Measures In the meantime, OSHA expects field offices to use “temporary” enforcement measures, in place since Sept. 22, 2011, that potentially reduce fines for contractors alleged to have violated the directive (57 CLR 972, 9/29/11). In an OSHA guidance memo dated Sept. 22, David Michaels, assistant labor secretary for occupational safety and health, said during the grace period, a contractor accused of violating the directive but complying with the old directive would be eligible for up to a 45 percent ”good faith effort” penalty cut, if approved by an OSHA regional administrator. In addition, OSHA's Field Operations Manual for determining penalties advises that an employer with 25 or fewer workers could qualify for up to another 60 percent reduction under OSHA's small business provision. Together, the good faith and small business reductions would leave the employer owing no money to OSHA. The extension through Sept. 15 also calls for OSHA field offices to make consultation and education about the new directive a priority. Directive Mandates The new directive requires that contractors working atop single-family houses and townhouses use fall prevention equipment such as harnesses tethered to a roof and scaffolds. Contractors are prohibited from using slide guards—vertical wooden boards attached to roofs—and other measures OSHA deemed “unconventional” unless the builder can show that OSHA's prescribed methods would create a greater hazard than unconventional methods. The old directive allowed slide guards. Contractors believe the directive fails to consider the realities of renovation and reroofing work where setting up a tether system could be more dangerous than the reroofing itself, and homeowners object to their yards being trampled and damaged by cranes and scaffolds. Contractors also argue that residential roofing rules should continue to apply to projects on commercial buildings, if the building originally was intended as a residence. Citations Continue Despite the delays, OSHA continues to inspect residential construction sites and issue citations for fall prevention violations. During fiscal 2011, OSHA issued roofing, siding, and sheet metal contractors 3,747 citations with proposed penalties of $13.3 million for violations of the duty to have fall prevention standard, 29 C.F.R. § 1926.501. Another 317 citations with proposed fines of $959,537 were handed to residential general contractors. Figures for how many of the violations were for the portion of the standard specifically cited in the directive, 29 C.F.R. § 1926.501 (b)(13), were not available from OSHA. Bureau of Labor Statistics data show falls claimed the lives of 82 workers employed by residential roofing, sheet metal, and siding contractors from 2006 through 2010. The injury and illness rate for residential and commercial roofing contractors for 2010 was 5.9 workers out of every 100 full-time employees. Figures for 2011 are not yet available.
February 28, 2012

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