U.S. Department of Labor Approves New Respirator Fit Testing Protocols to Protect Workers from Airborne Contaminants

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a final rule that provides employers with two new fit testing protocols for ensuring that employees’ respirators fit properly.

The new protocols are the modified ambient aerosol condensation nuclei counter (CNC) quantitative fit testing protocol for full-facepiece and half-mask elastomeric respirators, and the modified ambient aerosol CNC quantitative fit testing protocol for filtering facepiece respirators.  Both protocols are variations of the original OSHA-approved ambient aerosol CNC protocol, but have fewer test exercises, shorter exercise duration, and a more streamlined sampling sequence.

These two quantitative methods add to the four existing in Appendix A of OSHA’s Respiratory Protection Standard, which contains mandatory respirator fit-testing protocols that employers must choose from to protect employees from hazardous airborne contaminants. The rule does not require employers in general industries, shipyard employment, and construction to update or replace their current fit testing methods, and does not impose additional costs.

The rule becomes effective September 26, 2019.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.

For more information, visit www.osha.gov.

U.S. Department of Labor Implements New Weighting System for Workplace Safety and Health Inspections

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced that it has recently implemented the OSHA Weighting System (OWS) for fiscal year (FY) 2020. OWS will encourage the appropriate allocation of resources to support OSHA’s balanced approach of promoting safe and healthy workplaces, and continue to develop and support a management system that focuses enforcement activities on critical and strategic areas where the agency’s efforts can have the most impact.

Under the current enforcement weighting system, OSHA weights certain inspections based on the time taken to complete the inspection or, in some cases, the impact of the inspection on workplace safety and health. OWS recognizes that time is not the only factor to assess when considering the potential impact of an inspection. Other factors – such as types of hazards inspected and abated, and effective targeting – also influence the impact on workplace safety and health. The new system adds enforcement initiatives such as the Site-Specific Targeting to the weighting system.

The OWS replaces the current enforcement weighting system initiated in FY 2015. The new system is based on an evaluation of the existing criteria and a working group’s recommendations regarding improvements to the existing weighting system. OSHA has been running the new weighting system currently to confirm data integrity. 

The system will continue to weight inspections, but will do so based on other factors, including agency priorities and the impact of inspections, rather than simply on a time-weighted basis. The new OWS approach reinforces OSHA’s balanced approach to occupational safety and health (i.e., strong and fair enforcement, compliance assistance and recognition) and will incorporate the three major work elements performed by the field: enforcement activity, essential enforcement support functions (e.g., severe injury reporting and complaint resolution), and compliance assistance efforts.

OWS will become effective October 1, 2019.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.

For more information, visit www.osha.gov.

OSHA Education and Training Requirements For Contractors

Many licensed contractors have been getting “on-the-job” training for years — some, since they were working on jobsites as young laborers. But what formal education and training are required for contractors? The short answer is that it differs slightly from state to state, but no one can escape OSHA.

Perhaps the best-known training requirements for contractors are those set forth in the federal Occupational Safety and Health Act of 1970 (OSHA) and the regulations OSHA enables.

OSHA permits individual states to develop and enforce their own occupational safety and health plans, statutes, and enforcing agencies as long as the states meet federal requirements (29 U.S.C. § 667), so many contractors may be more familiar with their state’s occupational safety and health act than the federal. According to the U.S. Department of Labor, jurisdictions with their own federally-approved plans governing both public and private employers are Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. (Connecticut, Illinois, Maine, New York, New Jersey, and the Virgin Islands have plans that apply only to public employees.) State laws must be “at least as effective” and stringent as OSHA.

In most of these states, and in states that simply follow the federal OSHA requirements, construction-industry employee training is required to comply with the federal requirements set forth in 29 CFR 1926. California, Michigan, Oregon, and Washington have more stringent requirements than the federal rules.

What Training Does OSHA Require?

The Department of Labor’s regulations contained in 29 CFR 1910 and 29 CFR 1926 give employers numerous “accident prevention responsibilities.” These responsibilities specifically include the duty to train each “affected employee” in the manner the standards require. The regulations specifically require training for employees on topics including scaffolding, fall protection, steel erection, stairways and ladders, and cranes. Both federal and state courts interpret OSHA training requirements; state courts interpret them in states with their own laws but look to federal decisions for guidance.

Court decisions indicate that training requirements are interpreted broadly. For example, in 2002, the U.S. Court of Appeals for the First Circuit evaluated 29 CFR § 1926.21(b)(2)’s requirement for employers to instruct each employee in the “recognition and avoidance of unsafe conditions.” The case, Modern Continental Const. Co., Inc. v. Occupational Safety and Health Review Commission, involved vertical rigging in a tight working space during an underground project involving submerging a section of highway. The operation resulted in a fatality. The court found that the employers’ duty “is not limited to training for hazards expressly identified by OSHA regulation” and that employers are obligated to instruct their employees in the recognition and avoidance of “those hazards of which a reasonably prudent employer would have been aware.” The court recognized that while the training does not have to eliminate hazards, the training must focus on avoiding and controlling dangerous conditions.

Furthermore, merely holding or sponsoring training courses may not be enough to comply with OSHA; the regulations require employers not only to ensure training but also to ensure that each affected employee has received and understood the training. The District of Columbia Circuit emphasized this requirement in Millard Refrigerated Services, Inc. v. Secretary of Labor. The Court upheld a citation against an Alabama company operating a refrigerated storage facility after an anhydrous ammonia leak even though the employer claimed it didn’t know that its employee didn’t understand the training and therefore wasn’t wearing a respirator.

Decisions like this make it incumbent upon employers to recognize and anticipate hazards and ensure that employees have the proper education and quality training to handle them.

Penalties for Training Violations

Employers’ duty to train is worded as a duty to its individual employees: “The employer must train each affected employee in the manner required by the standard, and each failure to train an employee may be considered a separate violation” [29 CFR 1926.20(f)(2)]. The statute and regulations do not explicitly state the penalty for failure to give required training; penalties will depend on the facts of each case. OSHA violations generally fall into one of four categories: willful, serious, repeated, or other-than-serious. According to the Department of Labor, the current maximum penalty is $13,260 per serious violation and $132,598 per willful or repeated violation.

Courts have upheld steep penalties for certain training violations, particularly for repeated failure to train employees. For example, in Capeway Roofing Systems, Inc. v. Chao, a roofing contractor was fined $6,000 for failing to train an employee on fall protection. (The Secretary of Labor also assessed other fines against the contractor for failure to comply with rules on fall protection, personal protective equipment, and other regulations.) The court reasoned that the fine for failure to train was appropriate, though relatively high, because it was a third “repeat” violation. Additionally, in some states, certain OSHA violations, especially willful and repeated violations, can subject employers to criminal liability.

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.

U.S. Department of Labor Selects New Director For OSHA’s Construction Directorate

The U.S. Department of Labor has selected Scott Ketcham as the new director of the Occupational Safety and Health Administration’s (OSHA’s) Directorate of Construction (DOC) in Washington, D.C. Ketcham had served as deputy director of DOC since February 2017.

Prior to coming to OSHA’s national office, Ketcham worked for 19 years as an OSHA acting deputy regional administrator, area director, assistant area director, and compliance officer and manager in offices in the Seattle, Dallas and Philadelphia regions. Before joining OSHA, he spent five years as a staff industrial hygienist with the U.S. Army Medical Activity at Bassett Army Hospital on Ft. Wainwright, Alaska. He retired from the U.S. Army after 24 years of active and reserve service.

Ketcham holds a master’s degree in Public Administration from the University of Alaska, a Bachelor’s of Science degree from Texas A&M University, and is a Certified Safety Professional. He has a strong background in the general industry, maritime and construction industries.

“Scott Ketcham is a dedicated public servant,” said Loren Sweatt, Principal Deputy Assistant Secretary for Occupational Safety and Health. “He has demonstrated strong leadership throughout his OSHA career, and I am confident he will continue to achieve the mission of assuring safe and healthful working conditions for construction workers in his new position.”

For more information, visit www.osha.gov.

U.S. Department of Labor’s OSHA Requests Information on Table 1 of the Silica Standard for Construction

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is requesting information and comment on Table 1 of the agency’s Respirable Crystalline Silica Standard for Construction. OSHA seeks information on additional engineering and work practice control methods to effectively limit exposure to silica for the equipment and tasks currently listed on Table 1. The agency is also requesting information about other construction equipment and tasks that generate silica that it should consider adding to Table 1, along with information about their associated engineering and work practice control methods.

In addition, OSHA is seeking comments about whether to revise paragraph (a)(3) of the Respirable Crystalline Silica Standard for General Industry to broaden the circumstances under which general industry and maritime employers would be permitted to comply with Table 1 of the silica standard for construction.

Information submitted will allow OSHA to consider new developments and enhanced control methods for equipment that generates exposures to silica, and provide additional data on exposures to silica from equipment and tasks using a variety of control methods under different workplace conditions. Expanding Table 1 to include additional engineering and work practice control methods, equipment, and tasks could provide employers with more flexibility and reduce regulatory burdens while maintaining protections for employees.

If information submitted in response to this request indicates that revisions to the silica standards are needed, the agency will then publish the proposed revisions in the Federal Register for public comment.

Comments must be submitted by October 14, 2019. Comments and materials may be submitted electronically at http://www.regulations.gov, the Federal e-Rulemaking Portal, or by facsimile or mail. See the Federal Register notice for submission details. 

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for American working men and women by setting and enforcing standards, and providing training, education, and assistance.

For more information, visit www.osha.gov.

U.S. Department of Labor Reminds Employers About Submitting Injury and Illness Data to OSHA

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is reminding employers who have not already done so to submit their 2018 OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).

Who is required to submit Form 300A?

How to submit Form 300A:

Submit injury and illness data electronically at www.osha.gov/300A.

For questions about submission requirements, complete the Help Request Form at www.osha.gov/injuryreporting/ita/help-request-form.

For more information, visit www.osha.gov.

Ladder Personal Fall Arrest Systems Comply With OSHA Regulations

As of November 19, 2018, new OSHA requirements were implemented for fixed ladders. The OSHA regulations eliminate the need for cages on any new fixed ladder installations. The regulations also require that all fixed ladders over 24 feet be equipped with a Personal Fall Arrest System (PFAS).

In response to these changes, Design Components Inc. provides PFAS that meet or exceed the new OSHA guidelines. The company offers complete ladder safety solutions with rigid rail and trolley construction or cable and grab construction.

These systems are customizable and are packaged together to include all the needed accessories. This includes the attachment hardware, trolleys, cable grabs, deluxe body harnesses and any other necessary equipment. The company also offers expert consulting to determine the right products for the site to ensure they meet OSHA regulations and ANSI standards.

“Design Components Inc. is a great resource to go to when if you have fixed ladder and PFAS design questions, need product information, or pricing for a specific project,” says Chris Lafferty of Design Components Inc. “This takes the guesswork out of knowing if you have that right products for an OSHA-compliant fixed ladder.”

Design Components Inc. offers a wide variety of accessories and safety-related products for metal buildings, including fixed ladders, ladder fall arrest systems, METALWALK rooftop walkways, door canopies, roof curbs, whole building ventilation, and much more.

LEARN MORE

Visit: www.designcomponents.com

Call: (800) 868-9910

U.S. Department of Labor Kicks Off Safe + Sound Week on August 12

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) will join businesses and organizations nationwide to recognize the importance and successes of workplace safety and health programs during Safe + Sound Week, August 12-18, 2019.

The week-long event encourages employers to implement workplace safety initiatives, and highlight workers’ contributions to improving safety. Businesses that incorporate safety and health programs can help prevent injuries and illnesses, reduce workers’ compensation costs, and improve productivity.

“Leadership commitment matters and demonstrates workplace safety is a priority,” said Acting Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “Safe + Sound Week reminds employers that safety and health programs help businesses save money, eliminate injuries, and most importantly save lives.”

Organizations of any size or in any industry looking for an opportunity to show their commitment to safety to workers, customers, the public, or supply chain partners should participate. Learn more about how to help plan and promote safety and health plans.

For more information, visit www.osha.gov.

What Every Roofer Should Know About Ladder and Fall Protection Safety

Fall protection equipment should be inspected by the user before every use.

Roofing can be a dangerous profession, even in optimal weather and working conditions. Working at high elevations, on steep slopes and near unprotected edges are routine in the work life of a professional roofer. Alone, these situations can pose significant risk to the health and safety of roofers. Combined with the common environmental factors of windy weather and rain-slicked surfaces, the job can go from risky to outright dangerous on any given day.

What’s more, roofers face another risk every day on the job — injuries relating to ladder use or falls. Since 2017, the Occupational Health and Safety Administration (OSHA) has closed more than 90 Federal and State investigations into workplace fatalities relating to ladder use on jobsites across the country, and many of these fatalities result from falls. The American Ladder Institute (ALI) reports that more than 300 ladder deaths occur every year, while the Bureau of Labor Statistics reported 697 fatal falls from a higher level to a lower level in 2016.

All roofers know that ladder safety is important, yet many lack the training and education needed to safely maintain their climbing equipment. It’s essential that professionals understand that in addition to proper ladder use, they must also learn how to inspect a ladder for optimal safety. Education is the most important factor in improving jobsite safety and saving lives.

The Importance of Ladder Safety Training

The first step in ensuring that roofing professionals utilize ladders safely and effectively on the jobsite is to provide training on the essential components of ladder use. In fact, ALI notes that 76 percent of companies believe ladder accidents that occurred in their workplace could have been avoided with ladder safety training. When roofers feel confident in climbing and working on a ladder, they can protect themselves and promote a culture of safety among other professionals.

Figure 1. A ladder inspection form such as this one should be accessible on the worksite.

Ladder safety training sessions can either be conducted online or in-person on a jobsite. While online training provides greater accessibility and convenience, an onsite training session offers the ability to demonstrate real-world examples by job application and explore trade usage scenarios. Equipment manufacturers and various national organizations provide free ladder safety training in both formats. For example, OSHA conducts hundreds of ladder and fall protection safety training sessions every May as part of its National Safety Stand-Down initiative. A typical training for jobsite participants may include topics such as:

  • Safety protocols by application.
  • How to safely climb and work for extended periods from a ladder.
  • Common dangers posed by improper ladder use.

For a quick refresher or reference tool, take a look at the right and wrong ways to use a ladder. Even commonsense reminders can prevent against workplace injury.

Using a Ladder the Right Way

  • Prior to using a ladder, be certain that it is on a completely flat surface to prevent tipping.
  • Center your body on the ladder and keep your waist between the rails while maintaining a firm grip on the ladder.
  • Climb facing the ladder, move one step at a time and firmly set one foot before moving the other one. This is important to remember on your descent as well — don’t take any shortcuts to get down quicker.
  • If possible, have one person hold the ladder at the bottom while another person performs the task.
  • Move materials with extreme caution so as not to lose your balance or tip the ladder.

Using a Ladder the Wrong Way

  • Don’t stand above the fourth rung from the top of an extension ladder. This is very important as you can easily lose your balance and fall.
  • Don’t climb a ladder if you are not physically and mentally up to the task.
  • Don’t place the base of an extension ladder too close to, or too far away from, the house/building.
  • Don’t over-reach or lean to one side.
  • Don’t try to move a ladder while on it or from above. Climb down and then reposition the ladder closer to where you are working.
  • Don’t exceed the maximum weight of a ladder.
  • DO NOT permit more than one person on an extension ladder.

Ladder Inspection Checklist

Many roofers feel confident operating a ladder to perform their job duties. However, many take for granted the state of the equipment itself. Ladder inspections are just as important as general ladder use training. Both roofers and contracting business owners should know how to properly inspect all climbing equipment prior to each use.

Figure 2. The correct positioning of fall protection equipment and the connecting device is crucial.

While there are many ladder styles and models, there are several aspects of a safety inspection that apply to every ladder. The following should always be inspected before climbing a ladder.

1. Steps: Inspect each step of the ladder to search for cracks in the material, looseness between the step and the body of the ladder, missing pieces of hardware such as screws and bolts, or any missing steps.

2. Rails: Inspect each rail of the ladder for cracks in the material, frayed rail shields, or bent angles. These are indicators of compromised stability.

3. Labels: Ensure the ladder still has labels that are legible. Labels will often list important user information, such as the load capacity for the climber and their materials, directions for climbing safely, as well as any compliances with OSHA or the American National Standards Institute (ANSI).

4. Material quality: Ensure the ladder’s material is in good condition. Check for corrosion, rusting, or any loose parts, which can pose a danger to the user if left unchecked.

5. Hardware: Check to see that all bracing, shoes and rivets on the ladder are uniform and securely placed.

Proper fall protection training is essential. Photos: Werner Ladder

Each item on this five-part checklist can be inspected with a quick and thorough scan. If any of these five aspects of a ladder are not secure and sound, a ladder is not fit for climbing and should be immediately removed from service until it is either repaired or permanently discarded.

It’s also important to understand the unique aspects of ladders that are frequently used on the worksite. The most common types of ladders chosen by roofing professionals are stepladders, extension ladders and podium ladders, which all pose various benefits and have notable differences in their construction. Below are important attributes to check for each ladder style. A sample ladder inspection form is shown in Figure 1. To find ladder inspection forms tailored to your exact ladder model, visit your manufacturer’s website.

Stepladders

When using stepladders, ensure the spreaders are not loose, bent or broken. They should smoothly unfold when the stepladder is opened.

1. Top: Check the top of the ladder for any missing hardware or looseness. Many roofers rest tools and equipment on the top of the ladder, which may become damaged over time.

2. Pail shelf: Some roofers choose to add a pail shelf to their ladder, which can hold a bucket for tools and materials. Inspect the shelf to make sure it is properly secured to the ladder, doesn’t contain any material cracks, and is not bent out of shape.

3. Spreader: Look at the spreaders to make sure they are not loose, bent or broken. They should smoothly unfold when the stepladder is placed in an open position.

Podium Ladders

On podium ladders, the podium must be carefully inspected, as it often carries most of the user’s weight.

1. Platform: Inspect the platform to be sure it does not contain cracks, does not have missing hardware, and is not bent out of shape. The podium often carries most of the weight of the user, so be aware of any damages in the material.

2. Spreader: Similar to a stepladder, be sure to inspect both the top and the spreaders of the podium ladder.

Extension Ladders

Inspect the rung locks to make sure that they are not loose, bent, missing or broken.

1. Rung locks: The rung locks on an extension ladder are essential to maintaining structural integrity while climbing. Inspect these pieces to make sure that they are not loose, bent, missing or broken.

2. Shoes: Take a look at the shoes of the extension ladder to see whether they are worn, broken or missing. The shoes may experience significant wear over time, as they support the weight and position of the ladder.

3. Rope/pulley: Ensure that the rope is not frayed or damaged and make sure the pulley is not loose, bent or broken before climbing.

Products That Improve Roofing Safety

While ladder inspections will protect against equipment failure, safety accessories can complement these efforts and provide additional safety measures by making ladders more stable and secure. To combat the possibility of slips and falls from ladders, especially in rainy weather, manufacturers now offer ladders with slip-resistant treads on ladder steps and non-marring rubber foot pads to maximize a ladder’s ground contact.

Roofing professionals working at the edge of a low-height roof may consider utilizing a podium-style ladder with an extra-wide platform step to support a greater range of motion and stability while working. Hardware enhancements, such as shatter-proof locks and sturdy latch designs, enhance the durability of equipment. A ladder leveler is another accessory that can help prevent accidents. It attaches to the bottom of a ladder and helps provide an evenly supported working surface when working on sloped ground or a staircase.

Use of Fall Protection Equipment and Ladders

Roofing professionals may find themselves using fall protection equipment in tandem with extension ladders as they transition from standing on a ladder to standing on a roof. This is especially the case with high-sloped roofs, which require additional safety protocols to reduce the risk of injury.

OSHA specifies that a professional working on a steep roof must be protected by a guardrail system, safety net system or personal fall arrest system. When on a low-slope roof that features an unprotected edge 6 or more feet above a lower level, professionals must use fall protection. Below are three common scenarios in which roofers should consider using fall protection equipment.

When standing next to:

1. An unprotected edge — any side or edge (except at entrances to points of access) of a walking work surface where there is no wall or guardrail system of at least 39 inches.

2. A leading edge — the edge of a floor, roof or deck, which changes location as additional floors, roofs, decking or sections are placed, formed or constructed.

3. Holes — including skylight roof openings.

Just as it’s important for roofing professionals to be trained in proper ladder use, fall protection training carries the same weight. All roofing professionals should have an understanding of the primary components of a secure fall protection system and how they work in tandem to ensure a user’s safety. The graphic in Figure 2 demonstrates the correct positioning of a fall protection anchorage, a connecting device, and a harness.

Fall Protection Inspection Checklist

Just like ladders, fall protection equipment should be inspected by the user before every use, as broken or degraded equipment will not ensure the user’s safety. When inspecting a harness, it’s important to watch out for the following five items:

1. Fraying in the material.

2. Significant discoloration of materials (especially around clasps and joints).

3. Rusting of metal appliances.

4. Missing rings and buckles.

5. Excessive dirt or grease (this can be removed with warm, soapy water).

If any of the above items are found, the harness should not be used. It should be immediately taken out of service and removed from the jobsite. It may sound obvious, but simply wearing fall protection gear — even gear that passes your checklist — doesn’t automatically protect the user. Proper positioning must also be inspected after the worker has put on the harness. Roofers can self-inspect or use a buddy system to ensure maximum protection.

1. Make sure the harness’s centered chest strap has been properly fitted and routed. The chest strap should always be located at the sternum. Loose straps can cause injury, and the mispositioning of your straps could result in gear failure.

2. Connecting devices must be self-locking and closing, require a minimum of two separate steps for release and a 5,000-pound minimum breaking strength.

3. Always use a 3-foot lanyard and ensure your vertical lifelines are above the D-ring or adjusted for safe reach as you move.

Create Your Own Culture of Safety

In a high-risk profession like roofing, a commitment to safety is essential. This often begins and ends with equipment use training, which educates workers on the proper way to use a ladder or fall protection equipment. While this is an essential step in creating a safe environment, both business owners and roofing contractors can take safety a step further by introducing equipment inspections as a part of your jobsite protocols. Taking the time before each use to scan equipment for flaws has the potential to save lives.

Be sure to include inspections as part of your next safety training and consider printing off these important safety checklists to keep on hand. While roofing professionals may face many hazards at work, the one thing that can be controlled is your commitment to equipment safety.

Safety Resources:

For free online ladder safety and fall protection safety training, please visit Werner Ladder’s website, www.wernerco.com/us/support/training.

For more information on ladder safety and to review comprehensive literature and other safety resources, visit OSHA’s Portable Ladder Safety guide, www.osha.gov/Publications/portable_ladder_qc.html.

About the author: Chad D. Lingerfelt is the National Safety Training Manager at WernerCo. In this role, he oversees all of the Fall Protection and Ladder Safety Training. For the past 32 years, he has worked in the safety field making sure everyone goes home at the end of the day. For more information, visit www.wernerco.com/us.

Three Key Questions About OSHA Inspections

OSHA will investigate a jobsite for a number of reasons. A representative from OSHA will show up if an employee has issued a complaint against you, if there is a recent fatality, or if there is an imminent threat they have identified. The dangers of fall-related injuries in the industry have been well documented, and this has prompted inspectors in your area to be on the lookout for roofers. Additionally, roofers are the easiest to cite due to the fact that roofing is a highly visible construction trade and an inspector does not have to use much effort to determine the likelihood of a dangerous situation that needs inspecting.

OSHA inspections can be stressful, but they can be less stressful if you know your rights and the proper procedures to follow during an inspection. Here are the answers to the most common questions I encounter when it comes to OSHA inspections.

Question #1: Do I have to comply, and what happens if I refuse OSHA access?

First and foremost, you need to know that OSHA has a legal right to inspect your jobsite. OSHA has what is called “administrative probable cause” to inspect and investigate your project. OSHA’s probable cause is more easily obtained than that of other agencies. An officer of a city, state, or federal law enforcement agency needs a much more specific probable cause to enter a private citizen’s property. This is not the case with OSHA. When an active construction project is taking place, there is an inherent risk of danger and injury, and this gives OSHA all the administrative probable cause they need.

This is not to say that you and your site superintendent do not have the right to deny OSHA access to the project and demand that they get a warrant. The site superintendent has the option to consent to OSHA’s inspection or deny them access to the project. The superintendent is well within his or her rights to tell the inspector to get a warrant. However, if you tell OSHA to get a warrant, they most certainly will. Because of OSHA’s broad power to oversee safety within the United States, they can obtain a warrant from a judge or magistrate. Once OSHA obtains a warrant for a site inspection, their inspection can become much more invasive. This means that OSHA inspectors can get permission from a judge to examine documents, conduct extensive interviews, and also perform scientific tests on items such as air quality, presence of combustible material, or any other danger.

The bottom line is that it is rarely a good idea to tell an OSHA compliance officer to get a warrant. The reasoning behind this has to do with the scope of OSHA’s inspection rights under the Code of Federal Regulations (CFR). The CFR demands that OSHA’s inspection be “reasonable.” This essentially means that they are limited to inspect only the workers, equipment, and materials which are within “plain sight.” “Plain sight” is a doctrine borrowed from criminal law and the Fourth amendment, which says that a government agent may not sample or manipulate anything that is not within his or her reasonable line of sight. If an agent violates this doctrine, it is possible that all the information they obtained during the inspection may be suspect.

Question #2: What should I do during the inspection, and are there areas I can prevent OSHA from viewing?

When OSHA is on site, the superintendent should remain alert, aware, and advocate for his or her company. The superintendent has specific rights granted to them under the CFR, and they must use those rights in order to protect themselves, the business, and the men and women who rely on that business for their livelihood.

The superintendent has the right to accompany the inspectors wherever they go on site, and he or she should do so. The inspector should be followed on the roof, through the rafters, and wherever else they intend to go. The superintendent also needs to ask a few key questions of the inspector and needs to ask them often. Mainly, he or she needs to know why OSHA is there. What is the scope of their investigation? What specifically are they there to see? Once the superintendent knows what OSHA wants, he or she can then limit them to what they can see. If an inspector attempts to go outside that scope, then the superintendent needs to notify them immediately.

Question #3: What happens during the inspection?

During the inspection, the OSHA compliance officer will make a walkthrough of the project. The inspector’s main focus is usually on fall protection equipment and fall protection practices of the crew. Always make sure every harness, rope, and lanyard on site is properly maintained. If a harness has been previously impacted, it does not need to be on a jobsite. Such equipment should be discarded and replaced. Roofers are cited far too often because an old harness or frayed rope stays on a truck when it should have been discarded. This is an easy citation to avoid. Throughout the inspection, the OSHA officer may perform brief interviews with the crew and question crew members on various issues relating to the inspection. OSHA has the right under the CFR to perform these interviews in private, away from the superintendent. Although the questioning can be private, it must also be brief. The superintendent needs to object to any questioning that goes on for an excessive amount of time.

Next, an OSHA inspector may ask to interview the managers and superintendents on site. This is a common practice, and OSHA inspectors are within their rights granted by the CFR to request such an interview; however, company managers have the right to refuse an interview without counsel present. This is important to remember because poor statements about safety from a crewman can hurt your case, but poor statements about safety from a supervisor can destroy your case. The only discussion going on between a supervisor and an OSHA compliance office during the walkthrough inspection should involve the scope of the inspection. The superintendent should not answer any questions regarding safety protocols, equipment, or practices without the assistance of counsel. If OSHA wants to speak with a manager, supervisor, or superintendent, they must do so with an attorney present. Paying for a lawyer may be expensive, but paying for a “willful” OSHA citation can bankrupt a roofing company.

Remember Your Rights

An OSHA inspection can be a trying and frustrating time. A roofing contractor’s best defenses against costly citations are to teach satisfactory safety techniques within the crew; update and maintain the required safety equipment; ensure everyone is aware of the jobsite-specific safety plan; and remember their rights when OSHA visits the jobsite.

About the author: Anthony Tilton, Partner at Cotney Construction Law, focuses on all aspects of construction law and works primarily on matters relating to OSHA defense. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s 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.