Solving the Puzzle

There’s a special feeling that comes with solving an intricate puzzle. That flash of insight when you spot a solution can be very satisfying. It’s even more satisfying if everyone else missed it.

Re-roofing applications can pose some of the toughest puzzles around. Everything has to fit together perfectly. These real-life puzzles have more than one solution, and sometimes an experienced contractor can come up with an answer that no one else envisioned. When that solution is more durable, easier to install, and less expensive than the other alternatives, that’s a true win-win-win scenario.

I talked to two contractors for this issue who recently hit that trifecta: Bill Devine of Coatings Application & Waterproofing Co. and Doug Claxton of The Solar Revolution.

When the standing seam metal roof on the Ritz-Carlton Coconut Grove in Miami had to be replaced, proposals for replacing the metal roof required large construction cranes to be mounted near the entrance of the property for months, causing disruptions for hotel guests.

Devine, area manager for Coatings Application & Waterproofing Co., proposed installing a PVC system that looked like a standing seam metal roof instead. He asserted it would be more cost-effective and last longer than metal in the harsh oceanside environment. Construction would also be less intrusive for hotel guests because it would not require a crane — Devine knew he could bring everything up and down using the service elevator.

Claxton, principal and founder of The Solar Revolution, had been contacted by the Boulder Jewish Community Center to explore rooftop photovoltaics when the facility was built, but unfortunately, the budget didn’t allow it at the time. Claxton notified board members when the city and county made grants available to help nonprofit organizations add solar power.

When the first phase of the solar project was put out for bid, all the other contractors focused on sections of flat roofing for the PV system. Claxton had a better idea. He suggested installing the array on the standing seam metal roof of the gymnasium. Thanks to an innovative attachment system, mounting solar modules on the curved metal roof would be easier and less expensive than other alternatives. And, unlike the solar array on the flat roof, it would also be highly visible, helping the Jewish Community Center use solar power as an educational tool. Like a giant billboard, the solar array also helps spread the word about the grant process.

You don’t hit home runs like this in business every day. When you do, you should savor them.

A Field Guide to Fall Protection Harness D-Rings

Modern fall protection harnesses often come with many attachment points for lanyards of different varieties. Understanding their proper use is critical. Photos: Malta Dynamics

Modern full-body harnesses for fall protection often come with many attachment points for lanyards of different varieties, and it can be tempting to think that any available D-ring is as good as the next for fall-arrest tie-off. Unfortunately, this is not the case, and using the wrong D-ring can have life-threatening consequences in the event of a fall.

Getting to know the various D-rings on your harness can help you avoid putting yourself and others in danger when working at heights.

Dorsal D-Ring

D-rings get their name because they are shaped like a capital “D.” The dorsal D-ring — the attachment point on the back of the harness — is the main connection point for fall protection and fall arrest lanyards. Its position high on the back ensures that, in the event of a fall, the worker is oriented in an upright position and the force of arresting the fall is safely distributed evenly throughout the body. Once a fall is arrested, the dorsal D-ring allows the suspended worker to remain upright with their weight centered while awaiting rescue.

When a worker wears the harness, the dorsal D-ring should sit between the shoulder blades in the center of the back. An improperly fitting harness can present a serious hazard because the position of the dorsal D-ring when the harness is in use is key to its effectiveness. If it’s too high, it could strike the back of the worker’s head during a fall; if it sits too low, a fallen worker can end up suspended face-down rather than falling in an upright position, increasing the risk of suspension trauma and secondary injury.

Always ensure your harness fits properly, with the dorsal D-ring falling in the center of your back between your shoulder blades and the harness fitting snugly enough to allow you to put your fingers — but not a fist — between your body and the straps.

Side D-Rings

Many harnesses have D-rings on the sides, located at the hips. Side D-rings are mainly used for work positioning. Work positioning systems allow a worker to be held in suspension, enabling them to work with both hands free. This has common applications in tower work and rebar construction, for example. Positioning devices such as a belly chain or a rebar chain assembly can connect to the harness’s side D-rings for hands-free work positioning.

Note that these positioning systems do not replace the need for fall protection, which should be attached from a suitable anchor point to the harness’s dorsal D-ring at the same time.

Side D-rings are not suitable for fall-arrest attachments; attaching a fall arrest system to a side D-ring is extremely dangerous. With a fall protection system attached to a side D-ring, in the event of a fall, the worker won’t descend in an upright position, and the force of the sudden stop when the fall arrest system engages would not be distributed evenly throughout the body, likely causing serious injury.

Side D-rings are, however, ideal options for attaching tool lanyards. Elastic tool lanyards, sometimes called tool tethers or bungees, prevent dropped tools from falling onto workers below. Simply attach one end of a tool lanyard to the tool and the other onto a side D-ring on your harness. This configuration keeps the tool tethered to your harness in case you lose your grip on it, while keeping the length of the lanyard conveniently off to the side when you’re working with the tool.

Sternal D-Ring

The sternal D-ring, located in the center of the chest, is primarily used for fixed-ladder climbing fall protection systems.

Probably the most noticeable D-ring to the harness wearer is the one on the center of the chest. Called the sternal D-ring, this attachment point is primarily used for fixed-ladder climbing fall protection systems. New OSHA regulations that began to phase into effect in November 2018 require a ladder safety or personal fall protection system on all new fixed ladders of 24 feet or taller. Starting in 2020, all new fixed ladders and replacement ladder/ladder sections must have a ladder safety or personal fall protection system and all existing ladders must be equipped with a cage, well, ladder safety system, or personal fall arrest system on fixed ladders that do not have any fall protection, according to OSHA.

Headlining the changes in OSHA’s latest update is a purposeful shift away from ladder cages in favor of ladder safety or personal fall protection systems. These ladder-based fall protection systems typically attach to the sternal D-ring, allowing the workers to comfortably scale the ladder while remaining protected from a fall.

Like the dorsal D-ring, the sternal D-ring should fall squarely in the center of the chest, at the sternum or breastbone. This positioning ensures the harness is able to distribute the worker’s weight evenly and safely in the event of a fall. Wearing an ill-fitting harness that sits too high or too low can lead to secondary injuries if the fall-arrest system is engaged.

Shoulder D-Rings

Many harnesses have shoulder D-rings at the top of the harness. These may be webbed or metal D-rings and can be used as attachment points for confined-space rescue, entry, and retrieval or for work positioning when used as a pair.

The dorsal D-ring is the main connection point for fall protection and fall arrest lanyards.

Because of their location off-center to the worker’s body, shoulder D-rings are not suitable as fall arrest connection points. Furthermore, these D-rings are not rated for fall arrest and are not designed to withstand the tremendous, sudden force at play when a fall arrest system is engaged. Instead, these D-rings are meant to allow workers to descend or ascend a confined space in a steady, controlled motion.

Although each type of D-ring may look superficially alike, their intended uses should not be confused. Most importantly, it is critical not to rely on the wrong D-rings as attachment points for your fall protection system. As a rule of thumb, fall protection attachment points should be high up in the center of your body. Always check with the manufacturer of your fall protection equipment for their recommendations if you’re unsure which D-rings can be used as fall protection attachment points.

About the author: David Ivey oversees the product development of fall protection and safety equipment at Malta Dynamics. He also sits on the ANSI Z359 board and participates in many subcommittee meetings for safety products. For more information or with questions about how to properly use your safety harness D-rings, contact divey@maltadynamics.com.

Making Sense of EPDs: Harnessing Data for Better Product Selection

Photo: PIMA

Global interest in the relationship between climate change and the built environment has incentivized design professionals to give a closer examination to the environmental impacts associated with the manufacture of building materials. Building owners, developers, architects, designers, and builders are increasingly including carbon footprint and other specification criteria as major considerations in deciding between alternative products and construction methods. Access to verified information about different materials makes it possible for stakeholders to base decisions on measurable data and metrics.

In the same way that food labels provide consumers with consistent information on nutrition facts for different products, Environmental Product Declarations (EPDs) are independently verified documents that present transparent information about the life cycle impacts of building products. EPDs provide stakeholders with uniformly developed information on building materials that are classified under the same product category. As an internationally recognized and standardized tool, the EPD has become a trusted source of vital information for building project decision makers. EPDs are now being used by all major green building rating systems globally and in North America, including LEED, BREEAM, and the Living Building Challenge.

As part of its advocacy for manufacturers and industry suppliers of rigid polyiso products in the United States and Canada, the Polyisocyanurate Insulation Manufacturers Association (PIMA) publishes EPDs for polyiso products on its website: www.polyiso.org. These third-party verified and ISO-compliant declarations are regularly updated and describe the cradle-to-grave impacts resulting from the supply and transport of raw materials as well as the manufacture, transport, installation, replacement, and end-of-life disposal for polyiso products. Recent updates to the polyiso roof and wall insulation EPDs are now available for review along with an entirely new industry-wide EPD for high density (HD) polyiso cover boards.

The EPD report for polyiso roof insulation offers substantiated information about the energy savings benefits of using polyiso insulation throughout an assumed 75-year building service life, including accounting for the typical roof replacement project. The EPDs help to tell polyiso’s story of superior performance and highlight the product’s contributions to building energy efficiency. The polyiso EPDs also include documentation that confirms the low global warming potential (GWP) of the raw materials used to manufacture polyiso products, which makes polyiso insulation an ideal solution for projects specifying low-GWP products.

The positive environmental attributes of polyiso products include:

· High Return on Embodied Energy—the energy savings potential of polyiso roof and wall insulation over their typical life span is many times greater than the impacts associated with the initial energy required to produce, transport, install, maintain, and eventually remove and dispose of the products.

· Outstanding Thermal Efficiency—requires less total thickness and weight to deliver a specified R-value, reducing overall construction and installation costs, increasing usable building space and lowering loads on roof systems.

· Zero ODP, Low GWP—manufacturing members of PIMA use pentane, a zero-ozone depletion potential and low-global warming potential substance, as the blowing agent for polyiso products.

· Recycled Content—polyiso products are manufactured with raw materials that utilize recycled content (percentage of recycled content varies by product).

· Opportunity for Reuse—polyiso roof products can be reused throughout a building’s roof service life; to increase the transparency of the reports and to align with industry practice, the EPDs for polyiso roof insulation and HD cover boards assume the products will be replaced once during a building’s 75-year service life. .

The U.S. Department of Energy estimates that the built environment accounts for 41 percent of our national energy consumption and nearly as much of our greenhouse gas emissions. With an eye toward conserving resources and mitigating the effects of climate change, the building industry has a responsibility to lead on the achievement of economy-wide sustainability goals by undertaking projects that reduce the environmental footprint of today’s buildings. Since every decision is only as good as the information it is based upon, EPDs play a critical role in reaching environmental goals and sustainability targets.

The polyiso industry has long been recognized as a leader in the development of innovative product solutions and an advocate for sustainable and energy-efficient construction. The publication of the recently completed EPD reports for polyiso roof and wall insulation as well as HD cover boards is only the latest chapter. The polyiso industry together with the roofing industry is uniquely positioned to bring about positive change through the replacement and upgrade of energy-efficient roof systems. Together with the performance advantages of selecting polyiso wall products as the continuous insulation solution for new construction projects, polyiso products deliver performance to any project – not matter its scope or the size of its sustainability aspirations.

PIMA’s latest EPDs can be found at https://www.polyiso.org/page/EPDs.

About PIMA

For more than 30 years, the Polyisocyanurate Insulation Manufacturers Association (PIMA) has served as the voice of the rigid polyiso industry, proactively advocating for safe, cost-effective, sustainable, and energy-efficient construction. Organized in 1987, PIMA is an association of polyiso manufacturers and industry suppliers. Polyiso is one of North America’s most widely-used and cost-effective insulation products. To learn more, visit www.polyiso.org.

About the author: Marcin Pazera, Ph.D., is the Technical Director for Polyisocyanurate Insulation Manufacturers Association (PIMA). Dr. Pazera coordinates all technical-related activities at PIMA and serves as the primary technical liaison to organizations involved in the development of building standards. He holds a doctoral degree in mechanical engineering from Syracuse University and, over the course of his career, has worked in building science with a focus on evaluating energy and moisture performance of building materials and building enclosure systems.

EPDM System’s Long-Term Performance Reveals Important Lessons

The Firestone RubberGard EPDM roof system on the headquarters of Albo Manufacturing in West Bend, Wisconsin was installed in October of 1980. Photos: Firestone Building Products

For most of us, turning 40 is something of a milestone. Maybe a time for a party, some soul-searching and usually a lot of brave talk about how 40 is the new 30. Regardless, we have crossed into undeniable middle age.

When a roof turns 40, still healthy and well-functioning, that’s an accomplishment of a different sort, putting that roof out front in a league of its own. In October, 1980 — yes, 40 years ago — in West Bend, Wisconsin, a team of installers put the finishing touches on the first Firestone RubberGard EPDM roof. That 45-millimeter, 7,900 square feet of membrane is still protecting the headquarters of Albo Manufacturing today, and has continuously done so for the last 40 years. Kurt Mueller, now the president of Albo, was 22 when his dad decided to try out the new type of roofing membrane.

Why would someone agree to be the first in line to try out a new product, especially one that represented a major investment for a small independent job shop? “He was good buddies with the contractor,” Mueller says as he explains his dad’s decision. The contractor “gave my father his word that the roof would perform, and that, I believe, is what swayed my father.” For the contractor and his employees, the lure of installing the roof without having to use hot asphalt was also a plus.

The roof at the Albo job shop is a testament to the durability of EPDM. While results may vary, this 40-year old has withstood the extremes of the harsh Northern Wisconsin: tornadoes, thunderstorms with winds up to 60 miles per hour, almost two feet of snow, and temperatures that plunged to 20 degrees below zero in the winter and rose to a scorching 100 degrees plus in the summer.

The roof at the Albo Manufacturing headquarters is still going strong four decades later, serving as a testament to the durability of EPDM.

Other than congratulating the owner for his savvy decision-making, why should we be talking about this durable roof? Is it a “one-off” or a sample of what might be expected from an EPDM membrane? Here’s why the 40-year performance of an EPDM roof is increasingly relevant today: we are facing new challenges now as we look for ways to protect our buildings from extreme weather events. While there may be debate about the cause, indisputable global statistics confirm the increasing frequency of more extreme weather: intense tornado outbreaks, record-setting heat, catastrophic wildfires, heavy downpours, longer droughts, and more frequent and more powerful hurricanes. This roof teaches us important lessons from its 40-year performance, and helps to inform decision-making moving forward.

In a highly competitive marketplace, the manufacturers of EPDM — Firestone Building Products as well as Carlisle SynTec Systems, and Johns Manville — have joined to create the EPDM Roofing Association (ERA), and invest in the science that delivers the data behind record-setting roofs like the facility in West Bend. This effort, in turn, has led to a generation of improvements that deliver a product based on 21st century science.

For instance, while ERA has numerous examples of the durability of EPDM from case studies, it was important to the association to investigate the science behind the longevity of their product. To that end, in a landmark aging study, ERA examined five roof systems with 28 to 32 years of in-field service, and concluded that all of the systems examined were still performing as intended. In fact, the study found that all of the samples were essentially performing “like new” with physical characteristic properties above or just below the minimum characteristics of newly manufactured 45-millimeter EPDM membrane. The roofs were first inspected in the field to get a good sense of their condition, and then samples were sent to a testing facility for the roofing industry. The laboratory testing examined five critical performance characteristics of the EPDM membrane.

The Elongation Test Results showed that four of the five roof samples exceeded the minimum characteristics for aged EPDM, and one exceeded the minimum for new EPDM. For Tensile Strength, all five samples exceeded the minimum standard. For Thickness XD (Cross Direction), three samples exceeded the manufacturer minimum, while the other two missed by one-thousandth of an inch. For Thickness MD (Machine Direction), three achieved or exceeded the minimum, while one missed by one one-thousandth of an inch and another by four one-thousandths of an inch. For Factory Seam Strength, it was only possible to test two of the samples, but both easily surpassed manufacturers’ minimums.

Overall, ERA has conducted four studies on EPDM that validate the long-term performance of the EPDM membrane. “The first field studies of EPDM were done in the late 1980s, and we are finding a pattern,” says Thomas W. Hutchinson AIA, FRCI, RRC and Principal, Hutchinson Design Group, Ltd., Barrington, Illinois. “The pattern is that these roofs can really last a long time. By using today’s advanced design techniques and proper roof maintenance, it is reasonable to expect that an EPDM roof will approach or exceed 40 years of service.”

Given the recent challenges of increasingly cataclysmic weather events, this durability and longevity is one important aspect of the contribution that EPDM can make to a resilient roofing system. Additionally, EPDM has excellent hail resistance, remaining flexible and pliable so that it can absorb the impact from hail without fracturing. The membrane is also very dimensionally stable when exposed to significant changes in temperature and EPDM is the only commercially available membrane that performs in an unreinforced state, making it very forgiving to large amounts of movement without damage and potentially more cycles before fatiguing. Seaming technology has constantly improved over the last 40 years, and has brought about innovations such as double-sided tape and factory applied tape. Sixty millimeter and 90-millimeter membrane has been introduced, offering enhanced puncture resistance.

These improvements to EPDM over the last four decades add up to increasingly sustainable and resilient construction. During a time when resilient structures are essential to a recovering economy, the value of updated EPDM is more evident than ever to the building owner. Kurt Mueller up in West Bend is grateful that his father’s roof continues to provide shelter for his small business. For anyone making a decision about a roofing membrane today, it’s important to know that the 21st century product, with increased strength and multiple improvements, is not your father’s EPDM.

For more information about EPDM as part of a resilient roofing system, consult ERA’s 2020 Resilience Report (http://epdmtheresilientroof.org.)

About the author: Louisa Hart is the director of communications for the Washington-based EPDM Roofing Association (ERA). For more information, visit www.epdmroofs.org.

Single-Component Solution Engineered to Deliver High Adhesive Output, Fast Setup Time

ICP Building Solutions Group offers Polyset PVC Spray Contact Adhesive, designed as a portable, self-containing, single-component solution with speed and simplicity in mind. Engineered to adhere most PVC membranes to most vertical walls and substrates for commercial low-slope roofing applications, Polyset PVC Spray Contact Adhesive delivers high adhesive output with a fast setup time, helping commercial roofing professionals reduce labor time and complete jobs faster.

“We are always working to develop new solutions that help our customers work faster and smarter,” said David Spaulding, Director of Sales, Low Slope Roofing Products at ICP Building Solutions Group. “With the new Polyset PVC Spray Contact Adhesive, we’re confident we’ve done just that, with a quick setup process and a simplified application that helps professionals complete quality jobs more efficiently.”

Additional benefits include:

  • Can be applied in temperatures as low as 25°F (-4°C) and higher.
  • No power required, allowing for easy transportation.
  • Zero VOC spray contact adhesive.
  • Reusable spray gun and hose (sold separately).
  • Excellent resistanceagainstweather, water, fuel, oil, and many other plasticizers.
  • Low cost per applied square foot of application.
  • Up to 1,000 square feet total bonded adhesive coverage.

Like all Polyset products, the new PVC Spray Contact Adhesive is backed by The Polyset Promise to always deliver best-in-class training and field support. Customers can take advantage of training opportunities either in a classroom or on the roof, led by highly experienced instructors, or Masterworks applicator training for hands-on training to help ensure projects meet code compliance. 

LEARN MORE

Visit: www.icpgroup.com

Call: (978) 623-9980

Email: info@icpgroup.com

A Contractor’s Guide for OSHA Compliance in the Coronavirus Era

As COVID-19, or the “coronavirus,” continues to dramatically impact the United States, employers across various industries continue to face new state-mandated rules and regulations aimed at protecting both employees and the general public. In addition, employers are facing increased scrutiny by the Occupational Safety and Health Administration (OSHA) for failing to strictly provide employees with coronavirus-related protections.

OSHA inspections are generally prompted for various reasons, including, but not limited to, fatalities or “catastrophes”; referrals of hazards from other government agencies, individuals, organizations, or the media; employee complaints; or for routine inspection. Since the start of the coronavirus pandemic through November 26, 2020, OSHA has received more than 12,750 complaints and referrals, and has opened nearly 1,400 coronavirus-related workplace inspections. In that same time frame, state agencies have received nearly 42,000 complaints and referrals, and have opened approximately 4,200 coronavirus-related inspections. In response to those complaints, referrals, and inspections, OSHA has cited nearly 250 businesses for violations relating to the coronavirus, resulting in proposed penalties of at least $3,403,139.

Specifically, OSHA inspections have resulted in coronavirus-related citations to employers for failing to:

· Implement a written respiratory protection program.

· Provide a medical evaluation, respirator fit test, training on the proper use of a respirator and other personal protective equipment (PPE).

· Report an injury, illness, or fatality.

· Record an injury or illness on OSHA recordkeeping forms.

· Comply with the General Duty Clause of the Occupational Safety and Health Act of 1970.

In addition to those more specific OSHA violations above, the General Duty Clause can generally serve as a basis for any citation. The General Duty Clause requires employers to furnish “a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees, and to comply with all standards, rules, regulations, and orders promulgated under the Occupational Safety and Health Act of 1970. Accordingly, an employer could be in violation of the General Duty Clause when the hazard is COVID-19. Although the most common violations are linked to the PPE standards, recording requirements, and the General Duty Clause, employers should be aware that OSHA has the power to issue citations for any violation observed during an inspection, even if those violations are unrelated to COVID-19.

Violations for workplace safety could result in costly penalties. Specifically, as of January 15, 2020, the agency’s maximum per-violation monetary penalties are $134,937 for willful or repeated violations, $13,494 for serious, other-than-serious, or posting requirements violations, and $13,494 for failure to abate existing violations. These are maximum fines, so the actual fine levied by OSHA could be, and in most coronavirus-related cases has been, less.

Avoiding Coronavirus-Related OSHA Violations

Notably, the highest number of complaints have originated from the healthcare, retail, restaurant, and construction industries, in that order. As of the date of this article, however, there are no OSHA regulations or standards specific to the coronavirus.

So, how can contractors avoid coronavirus-related OSHA violations?

In an effort to assist employers, OSHA points to its general standards and directives that may be most applicable to reduce worker exposure to the coronavirus. In addition to those general standards and directives, on April 22, 2020, OSHA issued safety guidance aimed at reducing construction workers’ risk of exposure to the coronavirus. The substance of the guidance presents no new regulations but provides contractors with a clear and concise list of practical advice regarding areas such as enhanced workplace cleaning, social distancing in the workplace or at the construction site, and face coverings and other protective equipment.

More specifically, when working in the construction industry, OSHA recommends that the following actions be taken to reduce the risk of exposure to the coronavirus:

· Encourage workers to stay home if they are sick.

· Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.

· Continue to use other normal control measures, including PPE, necessary to protect workers from other job hazards associated with construction activities.

· Advise workers to avoid physical contact with others and direct employees/contractors/visitors to increase personal space to at least six feet where possible. Where work trailers are used, all workers should maintain social distancing while in the trailers;

· Train workers how to properly put on, use/wear, and take off protective clothing and equipment.

· Encourage respiratory etiquette, including covering coughs and sneezes.

· Promote personal hygiene. If workers do not have immediate access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol;

· Use Environmental Protection Agency-approved cleaning chemicals from List N (www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2) or that have label claims against the coronavirus.

· To the extent tools or equipment must be shared, provide and instruct workers to use alcohol-based wipes to clean tools before and after use. When cleaning tools and equipment, workers should consult manufacturer recommendations for proper cleaning techniques and restrictions.

· Keep in-person meetings (including toolbox talks and safety meetings) as short as possible, limit the number of workers in attendance, and use social distancing practices.

· Clean and disinfect portable jobsite toilets regularly. Hand sanitizer dispensers should be filled regularly. Frequently-touched items (i.e., door pulls and toilet seats) should be disinfected.

· Encourage workers to report and safety and health concerns.

While many of these recommendations are standard operating guidelines with respect to jobsites, it is increasingly important to ensure that these guidelines are closely followed to prevent any unanticipated effects of the coronavirus, complaints or referrals, and to be better prepared in the event of an OSHA inspection.

Steps to Follow After a Citation

My company has been cited by OSHA. Now what?

Should OSHA determine that a contractor is in violation of OSHA standards warranting a citation and notification of penalty, there are several steps that contractors should take.

First, contractors must keep track of the 15 business days in which to contest the citation and penalties and the few exceptions which apply to that time frame. Occasionally, contractors lose track of the deadline during informal settlement negotiations in hopes of reaching an agreement. However, if that settlement cannot be finalized within those first 15 business days, then the contractor must file a formal contest even if its only reason for doing so is to preserve its rights.

During those first 15 business days, contractors should also determine whether they are seeking a complete reversal of the citation and fine, a reclassification of the citation to a lesser penalty or a change in the description of the offense, or if they are better suited to simply pay the fine. Contractors are encouraged to consult with an attorney when making these determinations, particularly in the event of a death or serious injury, whether coronavirus-related or otherwise.

A contractor has three grounds for contesting an OSHA citation: the citation itself, the proposed penalty, and/or the abatement date. Once a contractor has filed a notice of intent to contest, the citations, including the proposed penalties and abatement dates, are put on hold pending a final resolution, either through settlement or trial. In most cases, the dispute will end in settlement. However, barring a settlement, the area office forwards the notice of contest to the OSHA Review Commission, which assigns the case to an administrative law judge, who schedules a hearing. During the review, contractors are given an opportunity to serve discovery, conduct depositions and cross examination of witnesses, and may also appeal the decision of the administrative law judge for a review by the full commission.

Because the contractor will be defending itself in a court-like setting, it is important that the contractor maintain detailed records about the company’s safety procedures, including how the company has addressed and corrected any issues identified by the initial inspection and, if the contractor does decide to contest a citation, contractors are strongly encouraged to consult an attorney.

About the author: Keith A. Boyette is an attorney with Anderson Jones, PLLC in Raleigh, North Carolina, a law firm with attorneys licensed in North Carolina, South Carolina, and Georgia. For more information or questions about this article, please email him at kboyette@andersonandjones.com.

Author’s note: This article is intended only for informational purposes and should not be construed as legal advice.

Updating Your Employee Manual for 2021

Most everyone can agree that 2020 has been challenging. However, the year has also been an opportunity, a time for roofing contractors and other businesses to take a step back, study what works and what does not, and implement necessary revisions to standard operating procedures.

As you get ready for the new year, take a moment to evaluate your company. See what has changed and consider what new demands you expect for 2021. Then update your employee handbook to reflect those changes.

I-9 Requirements

Your human resources office is likely well-versed in having workers complete I-9 forms when they onboard. During the COVID-19 pandemic, the U.S. Immigration and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) relaxed the I-9 requirements for remote workers, but that flexibility expired on December 31. Also, as President-elect Biden takes office, immigration regulations may change. Ensure your employee handbook adequately explains the current requirements, and be ready to make changes throughout 2021 as needed. Additionally, as states continue to pass new laws regarding e-verification of employees, make sure that your employee handbook is properly updated to address any e-verify changes that affect your company.

Minimum Wage and Overtime

In November, Florida voted to raise the state minimum wage to $15 per hour, to incrementally take effect by 2026. Seven other states had already agreed to the increase, and with the new administration, increased minimum wage rates may become a national trend. Take a look at your hourly employees and determine if you need to start raising their pay to meet your state’s standards. Also, be sure that your handbook clearly explains rules around working overtime and receiving overtime pay.

Discrimination and Harassment Prevention

In recent years, courts and lawmakers have issued rulings and legislation to prohibit discrimination and harassment in the workplace. For instance, in 2020, the United States Supreme Court ruled that federal law prohibiting discrimination on the basis of an employee or job applicant’s sex also extended to sexual orientation and gender identification, so that it is illegal for covered employers to discriminate on the basis of an employee or job applicant’s sexual orientation or gender identity. It is important to update your manual to reflect those directives and to ensure your human resources and management team understand the newly-clarified scope of federal anti-discrimination laws.

Safety Guidance

Over the last several months, everyone has become accustomed to wearing masks, social distancing, and regular handwashing. The promise of a COVID-19 vaccine looms. However, it may be several months before the vaccine is available to the entire population, and then it will still be sometime before the country sees the collective effects of the vaccine. Everyone may be growing tired of the pandemic precautions, but it is important to keep the necessary safety guidelines in place and clearly explain them in the employee manual. Further, as COVID-19 safety guidance continues to evolve on a weekly basis, it is important to remain vigilant and up-to-date on the evolving safety standards.

Drug Use and Testing

In the recent election, many states voted on laws related to personal drug use. In Arizona, Montana, New Jersey, and South Dakota, voters cast their ballots to decriminalize recreational marijuana, making it legal in 15 states. Oregon made it legal to possess small amounts of cocaine, heroin, and methamphetamines (but selling the drugs is still illegal) and also voted to create a program for distributors of psilocybin, the active ingredient in psychedelic mushrooms. Washington, D.C., also decriminalized psilocybin. Meanwhile, Mississippi and South Dakota voted to legalize medical marijuana, joining 33 other states that had already done so.

Review the laws in your region and make sure your handbook explains (or related drug policy adequately addresses) the possession and use of controlled substances in light of these changing laws. Bear in mind that while you cannot dictate what employees do on their own time, you are generally still able to implement certain drug-free policies as it relates to your workplace. If drug testing is among your company’s policies, review your policies to ensure they comply with your state laws regarding medical marijuana use and other controlled substances.

Employee Training

In addition to updating your manual, consider updating your employee training. As the new year approaches, everyone could likely benefit from a refresher on discrimination and harassment prevention, safety, and compliance.

Also, your company may want to offer additional training for managers so they can identify signs of impairment. If workers have any drugs in their system, they can be a danger to themselves, their coworkers, and/or your customers and the community, and this is especially true in the roofing and construction environment. Any lack of focus can result in accidents, injuries, and lost time, which puts your people and your projects in jeopardy.

As you prepare for 2021, do not shy away from challenging issues. Instead, determine how they will affect your company and create the proper policies. It is up to you to set expectations for your workers and keep communications current and accurate.

About the author: Benjamin Briggs is a Partner at Cotney Construction Law who practices Labor & Employment Law. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for NRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Authors’ note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Manpower Issues and Using Temporary Labor Have Potential Legal Implications

2020 has been a year like no other for the United States. COVID-19 and its resulting recession have touched nearly every aspect of the economy. While the construction industry has been deemed an “essential” business in many states and jurisdictions, COVID-19 has still impacted the industry. According to a September 2, 2020 report by the Associated General Contractors of America (AGC), COVID-19 has contributed to construction project delays, disruptions, and even layoffs and furloughs, with 60 percent of respondents to a recent AGC survey reporting cancellations or delays. AGC partnered with Autodesk to conduct the survey in August; it polled respondents about the preceding twelve months.

The finding that COVID-19 has prompted delays and cancellations likely won’t surprise many in the construction industry. But also significant is that whatever impact the industry has felt, it hasn’t been enough to counteract the industry’s shortage of skilled craft labor. The labor shortage existed before the recession; on March 16, 2020, the trade group Associated Builders and Contractors (ABC) reported that the construction industry needed to hire an additional 550,000 workers compared with 2019 (up from a 440,000 increase from 2018 to 2019). The September AGC report indicates that, as recently as August, firms in the United States were still struggling to fill skilled labor positions; about 52 percent (down from 80 percent in 2019) reported difficulty filling hourly craft positions and 28 percent (down from 47 percent) reported difficulty filling salaried positions. The survey results revealed some employers cited COVID-related issues, like workers’ health risks and childcare concerns, as contributing to the struggle.

The labor shortage impacts many aspects of the industry; however, this article will attempt to identify potential legal implications and issues for firms to consider as they contract in these unique economic conditions.

Manpower Issues and “Default” Notices

Labor shortages might impact the number and scope of projects contractors choose to take, but unexpected shortages on pending projects present unique legal issues. Most standard agreements entitle owners and general contractors to fast recourse if a contractor or subcontractor fails to perform its obligations due to inadequate manpower. For example, the American Institute of Architects (AIA) A201-2017 General Conditions of the Contract for Construction, in § 2.5, entitles the owner to recourse if the contractor fails to “commence and continue correction” of its failure to “carry out the Work.” A201-2017 § 2.5 affords the contractor ten days to do so following the owner’s notice of default. The AIA’s corresponding subcontract provision (A401-2017 § 3.5) establishes a five-day notice to cure period for subcontractors. Many contractors and subcontractors know, however, that shorter notice periods — commonly, 48 hours — are increasingly routine on commercial projects, with some contracts requiring that defaults be cured or corrected within this period in order to avoid assessment of back charges for supplemental labor. Upon the contractor or subcontractor’s failure to commence or correct the default in question, the owner or upper-tier contractor typically is entitled to proceed with self-correction measures including hiring its own workers or subcontractors to make corrections, or to supplement the labor force of the party in default. The default might also entitle the owner or contractor to terminate the party in default.

In addition to contractual rights to cure defaults, contractors in some states also enjoy a statutory right to an opportunity to cure. Contractors in the many states that have no such statutes may wonder to what extent contractual notice-to-cure provisions are enforceable. Generally, parties on commercial projects are entitled to contract for such provisions, and they are enforceable in court. Courts’ strict enforcement of such provisions can set a high standard of compliance for both the defaulting party and the owner or upper-tier contract. For instance, in a New York case, the upper-tier contractor’s notice to its subcontractor that it “may declare [subcontractor] in default” if the subcontractor failed to correct deficiencies within 48 hours did not necessarily constitute a sufficient notice to later support termination for cause because it only implied that it might default the subcontractor. [See RKI Construction, LLC v. WFF, Inc., No. 14-CV-1803 (E.D.N.Y, Nov. 6, 2020).] In a delay-related case, the Ninth Circuit Court of Appeals has also found that, because the default (a severe delay) could not be cured within 48 hours, a general contractor was entitled to terminate its subcontractor without providing 48 hours to cure per the subcontract terms. [See L.K. Comstock & Co. v. United Engineers & Constructors, Inc., 880 F.2d 219 (1989).] Contractors facing a short default notice window likely should assume that the contract terms will be strictly enforced; if the contract requires them to “commence” a cure within a specific time period, they might take the position that they need not completely cure within 48 hours but merely present a plan to do so.

If owners and general contractors successfully enforce contractual default provisions, what damages can they legally recover? AIA A401-2017 entitles a general contractor to withhold the “reasonable cost” of remedying the subcontractor’s default or neglect. The “reasonable” language is consistent with the common-law duty to mitigate damages that is incumbent upon most litigants in breach of contract actions. This means that the non-breaching party is responsible for taking reasonable measures — such as shopping around to find a competitive price for replacement labor — to minimize its damages arising from the breach. Parties may agree by contract that additional damages, such as liquidated damages where delay is an issue, are recoverable.

Temporary Labor and Related Liability Considerations

Contractors and subcontractors struggling to adequately staff jobs, or perhaps facing a default notice, might have to look to temporary labor to fulfill contractual obligations. Staffing firms can be a lifesaver for contractors in this position, although working with temporary labor poses potentially complex legal issues. Leading up to 2020, federal courts were split on the issue of  whether and when contractors could be considered joint employers of temporary laborers, or even a subcontractor’s employees. Effective March 16, 2020, the U.S. Department of Labor (DOL) has published a final rule in an effort to provide clarity on this issue. Under the rule, a contractor will be found to be a joint employer of a worker when the worker performs work that simultaneously benefits another person who is “acting directly or indirectly in the interest of the employer in relation to the employee.” (See 29 C.F.R. § 791.2.) The DOL rule provides that a worker is acting in the contractor’s interest such that employer becomes a joint employer when the contractor:

· Hires or fires the employee;

· Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;

· Determines the employee’s rate and method of payment; and

· Maintains the employee’s employment records.

Being considered a “joint employer” can obligate a contractor to comply with wage and hour laws, workers’ compensation rules, and other employment laws. It is therefore crucial for any contractor considering using temporary labor to consult with an attorney to consider the legal implications of doing so. A written contract establishing terms such as who is entitled to fire, who sets the terms of the employment, and who maintains personnel records is likely important, as well as making clear who is responsible for maintaining workers compensation insurance on the workers in question. 

About the author: Caroline Trautman is an attorney with Oak City Law, LLP, based in Durham, North Carolina. Questions about this article can be directed to her at caroline@oakcitylaw.com.

Author’s note: This article does not constitute, and should not be construed as, legal advice on any particular scenario. For specific advice, consult with an attorney licensed in your state.

The Incomparable Dan Burke

Our hearts are broken. One of our own, our salesperson extraordinaire, Dan Burke, passed away unexpectedly in early December. Those of you who read retrofit and Roofing may not have had the pleasure of knowing Dan, so I’d like to take a moment to reminisce about this one-of-a-kind man.

Dan joined our team in 2007. We weren’t the retrofit and Roofing teams then; we were the eco-structure and metalmag team, magazines created by our publisher, John Riester, in the early 2000s. Dan’s easygoing personality quickly established him within our small group and he became a valuable — and valued — member. Eventually, we all briefly went our separate ways until the entire band got back together. And that’s when the real fun started.

Dan was a New Jersey native with a charming personality, a dapper style and a booming laugh. He had a big heart. Dan loved fiercely and shared his feelings openly. He also was a good listener and would remember things you told him years later. He adored music and played trumpet in a band for years. He was a New York Giants fan, and Monday morning conference calls in the fall typically began with a rundown of the Giants performance over the weekend. Dan enjoyed a good vodka at the end of a hard day and relaxing in front of a dramatic television series.

Nobody could work a trade show like Dan. Sometimes we’d crisscross the show as a team; other times we’d split up. When we’d regroup at the end of the day, my mind would be blown by the stack of cards Dan would have from people whose hands he’d shaken that day. Dan loved to bring in new business and was what John calls “a phone banger,” making tons of phone calls (and sending umpteen emails) each day, seeking the ad dollars we need to keep the magazinesthriving. Dan’s work ethic was an integral part of our success. And with Dan’s successes came certain catchphrases that will stick with me forever: “Oh, no way! Get out!” and “Thank you, sweet baby Jesus!” were often exclaimed in his Jersey accent along with his boisterous laugh.

Dan had a fear of cats. I have cats and it tickled my funny bone that a big man like Dan could be fearful of such sweet little creatures. Dan once stayed in my condo in Chicago during a trade show. Before he closed the guestroom door at the end of the night, he had to make sure I had both my cats. He was convinced a cat would smother him in his sleep!

One of my favorite Dan stories happened during A’18 in New York City. Dan and retrofit’s publisher John shared a hotel room and Dan woke up in the middle of the night roaring like a bear because of a wild dream. John, who is 6-foot, 4-inches tall, flew out of bed in fear and slammed into the wall of the tiny room. Dan and John had me crying with laughter when they shared the story the next morning.

Dan experienced a lot of challenges and tragedies. A lesser person would’ve folded, but not Dan. He always had a smile on his face. He always was eager to contribute to our team. He always wanted to make sure those around him were OK. His beautiful spirit helped him triumph over adversity.

Our retrofit and Roofing teams are small. I always have felt extremely fortunate to not only do a job I love, but to work with people who have become members of my family. However, that makes this loss particularly difficult. Our team will reminisce about Dan, especially when we are together, and there will be tears. But there also will be tons of laughter because Dan brought so much joy to us over the years. One of these days, when we can travel again — doing what Dan loved — there will be a vodka at the end of the day at the seat where Dan should be.

We love you, brother!

About the author: Christina Koch is editorial director of retrofit and the former editor of Roofing.

Pulling Together

As we were wrapping up this issue, the country was going through a tumultuous election in the midst of a pandemic. Our November-December issue typically focuses on government and municipal projects, and as we compiled these stories spotlighting successful public projects it was hard not to reflect on the nation’s highly polarized political environment.

According to roof consultant John A. D’Annunzio, public projects are typically a solid and dependable sector of the roofing market, and he outlines tips for successfully bidding and executing public projects in this issue.

Want to make sure you get paid at the end of the job? Working for a government entity can mean that it’s impossible to file a lien or sue in civil court, so check out the article by David Keel and Richard Anderson of Cotney Construction Law, who detail ways contractors can protect themselves and make sure they are compensated when the work is done.

This issue profiles government and municipal projects of many different types, including low-slope and steep-slope work, both retrofit and new construction. Several of them involved complex roof replacements in facilities that were open throughout the duration of the project. In Baton Rouge, Louisiana, the roof on the 300,000-square-foot United States Post Office General Mail Facility was replaced with a modified bitumen system while mail processing at the facility continued 24-7. In Owatonna, Minnesota, restoring the city’s historic administration building included installing 29,000 square feet of synthetic slate — and a detailed safety plan to protect workers and members of the public.

In Sevierville, Tennessee, a community center’s roof was replaced with metal-over-metal retrofit, which cut costs and minimized safety concerns. During a new construction project nearby, a butterfly standing seam metal roof and metal wall panels were installed on Sevier County Utility District’s new multipurpose facility.

D’Annunzio, who has been a roof consultant for more than 30 years, begins every pre-construction meeting by saying, “Nobody wins unless everybody wins.” His point is that the fate of the general contractor, roofing contractor, architect, engineer and consultant are all intertwined. All of them will benefit if they work together and the project is successful. They will all suffer if the project fails and ends up in litigation.

“Nobody wins unless everybody wins.” Not a bad motto for running a roofing project. Not a bad motto for running a government, either.