Policing Construction



Every single day, during the waning summer in the upper Midwest, we are surrounded by construction. This week, we report to you on some of the construction-related legislation and regulations we’ve been watching here at The Way.


The Occupational Safety and Health Administration (OSHA) seeks the industry’s perspective and comments on its final rule for Respirable Crystalline Silica Standard for Construction. The comment period runs through October 14th. Through this rulemaking, the agency solicits additional engineering and work practice control methods to effectively limit exposure to silica for listed equipment and tasks. OSHA is also looking for new examples of silica-generating construction equipment and tasks to be included in its rule. In addition, OSHA is open to comments about whether to revise 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. 


Also this week, OSHA debuted a webpage aimed at helping employers use leading indicators, which are workplace conditions and events to prevent injuries and illnesses before they occur, to improve safety and health programs. Also worth noting, OSHA launched a new mobile app that allows workers to calculate the heat index for their work day. This app allows companies to plan their day around the heat, and also receive warnings of dangerous heat-related conditions on worksites. 


A Delaware law will go into effect on October 1, 2020, that will clarify and enforce construction workplace fraud rules. The measure will create a new registry to oversee contractor activity in the First State. The Delaware General Assembly passed the measure earlier this year with nearly unanimous support.  The bill incorporated recommendations from a 2018 review of workplace fraud enforcement. The most significant change under the new law seeks to address misclassification and other types of workplace fraud by establishing a new Delaware Contractor Registration. The Delaware Department of Labor will now require contractors to pay a small annual fee and apply for a certificate of registration to engage in construction activities in Delaware.  


In Ontario, Canada, a new prompt payment and adjudication process under the Construction Act will come into force on October 1, 2019. It will be the first jurisdiction to have legislation that combines prompt payment and adjudication alongside traditional lien claim legislation. For our readers with construction activities taking place north of the border in Ontario, lien claim activity will now be governed by three different regulatory regimes. Be aware, there are several important changes in every step you take to pursue lien claims.


And finally this week, there is a new Minnesota law that empowers work zone flaggers to report people driving unsafely in construction zones. The law allows flaggers to report drivers to law enforcement within four hours of the incident. Law enforcement can then issue a citation to those drivers if there's reason to believe they were driving unsafely.  Give ‘em a brake through Minnesota’s road construction zones, or be prepared to face the police.   

A Truck Stop (Or at Least a Break)


The Federal Motor Carrier Safety Administration (FMSCA) issued long-awaited changes to its hours-of-service (HOS) rules. The proposed rules will now increase truck drivers’ flexibility to use their 30-minute rest break and specifically allocate time in a sleeper berth. The proposal also extends by two hours duty time for drivers encountering adverse weather and expands the current 100 air-mile “shorthaul” exemption from 12 hours on-duty to 14 hours on-duty, consistent with workday rules for longhaul truck drivers.  The public comment period will be open for 45 days.  


Leading industry groups, including the American Trucking Associations and the Owner-Operator Independent Drivers Association, lauded the FMCSA’s proposed rules. The trucking industry employs more than seven million people and moves 70% of the nation’s domestic freight. The proposed HOS regulations will provide $274 million in savings for the U.S. economy and American consumers. Speaking on the proposed rules, U.S. Transportation Secretary Elaine L. Chao said, “[t]his proposed rule seeks to enhance safety by giving America’s commercial drivers more flexibility while maintaining the safety limits on driving time.” 

Making Our Way Around the Country


Cal/OSHA will convene an advisory committee meeting on August 27th in Oakland to discuss adopting a more permanent Air Quality Index (AQI) regulation for outdoor workers. Earlier this summer, California issued an emergency regulation to protect outdoor workers from potentially dangerous wildfire smoke. The emergency regulation requires employers to provide specific kinds of respirators to workers when the local air quality is poor, and when employers reasonably anticipate that employees could be exposed to wildfire smoke. The rule is effective through January 28th, with two potential 90-day extensions. 


The National Labor Relations Board (NLRB) published a three-part Notice of Proposed Rulemaking (NPRM) aimed at protecting employees’ statutory right of free choice on questions concerning representation. One of the rule provisions is geared toward the construction industry. Under the proposed rule, a construction employer and a union can enter an agreement before a worksite or project is staffed, but union recognition can be withdrawn when the collective bargaining agreement ends, unless the union gains majority support. The employer can voluntarily agree in a subsequent collective bargaining agreement that the union has gained majority support. Under the NLRB's proposal, however, proof that most employees support the union could not be based solely on contract language. Public comments are open for 60 days. 


The Workers’ Compensation Appeals Board (WCAB) proposes to amend its Rules of Practice and Procedure, effective January 1, 2020. First, WCAB proposes to redefine the term “party” to include lien claimants. Second, the proposed rules would require exhibits in trials to be filed 20 days in advance of the trial date. Other measures include a clarification to the procedure for an employer claiming a credit pursuant to Labor Code section 4909 for overpayment of benefits and permission to use the walk-through documents procedure for petitions for costs. We’ll track the changes to the Rules of Practice. 


Back to our main story this week, we’re casting light on a troubling construction statistic coming out of the National Institute for Occupational Safety and Health (NIOSH) and other global health outlets. Deaths by suicide among construction workers have increased startlingly over the past decade. In particular, men in the construction and extraction industry had the highest rate of suicide among all occupational groups in the United States and the United Kingdom.  For more information about this critical issue, please check out some of the important work being done by the Construction Industry Alliance for Suicide Prevention. We’ll see you next week and please #BeThe1To help save a life.

Courtesy of Gallagher Bassett's The Way

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