2020 has been a hard year for everyone. Navigating through the COVID-19 pandemic has been difficult both personally and professionally. The primary focus of Western States Roofing Contractors Association during 2020 was to drive greater value to our members, when they needed timely resources more than ever. 

In today’s challenging environment, our members are looking for ways to help themselves become better roof technicians, navigate through challenges safely and legally, as well as becoming better businesspeople. WSRCA believes that by complimenting sound technical roofing research along with prudent business practices, we will continue to lead the industry, as we have for the past 47 years!

Below, please find the information that WSRCA feels is currently changing the face of roofing, not only in the west, but across the country in 2020: 

TECHNICAL INFORMATION

• Technical Bulletin No. 2020-LSII-1ed. - Design Considerations Related to White and Light-Colored Membrane Low-Slope Roofs
• Technical Informational Letter No. 2020-II-1 - Recent Activity by ASTM Roofing & Waterproofing Groups
• Technical Bulletin No. 2020-IILS-1ed. - Roof Wood Sheathing Susceptibility to Moisture
• Technical Informational Letter No. 2020-II-2 - Update on Recent Activity by ASTM Roofing & Waterproofing Groups
• Technical Bulletin No. 2020-LSII-1ed. - Moisture in Concrete Decks

CONTRACTORS COUNSEL - LEGAL NEWS & UPDATES

• Never Sign an OSHA Witness Statement
• New I-9 Form Just Released
• WEBINAR: COVID-19 Legal Challenges & Union Agreements
• COVID-19 Master OSHA, Construction & Employment Law FAQ's
• WEBINAR: Ever-Changing Legal Issues with COVID-19 and How to Work Through the Crisis
• Restructure Your Payment Terms to Survive the COVID-19 Crisis
• 5 Tips for Working in the Summer Heat
• Cheat Sheet for Employee COVID-19 Exposure
• Roof Deck and Mold Disclaimer Contract Provisions
• Navigating Delay During the Coronavirus Outbreak
• Critical Contract Provisions

SAFETY & HEALTH

• COVID-19 Resources Page
• COVID-19 and Roofing - Navigating the New Normal in Workplace Safety
• WSRCA Mobile Safety Solutions
• WSRCA Hi-Visibility T-Shirts
• WSRCA Safety Field Cards - English & Spanish
• WSRCA Safety Toolbox Topics

BUSINESS RESOURCES

• Sales Coaching - Responding to COVID-19: Navigating Construction & Service Sales
• WEBINAR: Commercial Sales - Going from Contact to Contract in a Virtual World
• WEBINAR: Identify & Reduce Social Engineering Attacks
• Don't Play Politics with Your Portfolio
• Breakthrough Academy - Business Webinars for WSRCA Contractor Members
• WEBINAR - Breakthrough Academy: Scaling to 8 Figures - How to Build Your Annual Strategic Plan to Dominate 2021
• Member Survey - Tell WSRCA What You Value & Need!
• Apply to Become a Board Member of the WSRCA

'A VIEW FROM THE HILL' - LEGISLATIVE UPDATES

• Special Report on Coronavirus Assistance - Federal Legislation & Administrative Actions as of April 6, 2020
• WEBINAR: A View From the Hill - 2020 Legislative Updates
• Presidential Memorandum to Defer Employee Payroll Taxes
• Biden Administration Preview

"ROOF TALK": ARTICLE FORUM & BLOG

• Roofing Contractors - the FAA Wants To Track Your Drone
• Roofing Ranks 4th Among Most Dangerous Jobs in the United States
• State of the Industry 2020: Report and Survey
• Brace Yourselves, Coronavirus' Impact on the Roofing Industry Will be Felt
• Roofing Contractors Keep Working in Peak Season Despite Sharp Spikes in Temperature, COVID-19
• Cool Under Fire - Leo Ibarra Leads Blue's Roofing & WSRCA Through a Year of Unprecedented Change
• Roofing Technology Think Tank (RT3) Announces Innovator of the Year - Scott Riopelle, Interstate Roofing

VIRTUAL WESTERN ROOFING EXPO 2020

• Virtual Western Roofing Expo
• Virtual Western Roofing Expo - Video Channel with Exhibitor Demonstrations
• WEBINAR: Virtual Western Roofing Expo - Opening Session
• WEBINAR: Surviving Uncertain Times
• WEBINAR: Top 5 Employment Issues in Roofing
• WEBINAR: Construction Contract Provisions
• WEBINAR: Issues Currently Affecting the Roofing & Waterproofing Industry
• WEBINAR: Davis Memorial Foundation - Scholarship Award Ceremony
• WEBINAR: A View From the Hill - 2020 Legislative Updates
• WEBINAR: Leveraging Partnerships with Manufacturers to Benefit Roofing Projects & Reduce Your Liability
• WEBINAR: A Retrospective Review of Code Changes from 2000-2018/21
• WEBINAR: Put it in Writing! Essential Policies for Every Employee Handbook
• WEBINAR: Performance Analysis of Aged TPO Membranes
• WEBINAR: Predictable Revenue
• WEBINAR: Retrofit Single-Ply Roofs Installed over Existing Metal Roofs: Wind Uplift and Industry Concerns
• WEBINAR: Simplifying OSHA Requirements for Rooftop Fall Protection
• WEBINAR: Significant Changes Between the 2015 and 2018 IBC and IRC Affecting Roof Assemblies
• WEBINAR: Prepare Your Low-Slope Roofing Projects to Meet the 2021 ICC Codes
• WEBINAR: How to Get Women on the Roof - Successful Strategies and Case Studies
• WEBINAR: The Top 10 Employment Law Mistakes Commonly Made by Roofing Contractors (and How to Avoid Them)
• WEBINAR: Proactively Address Moisture in Roof Assemblies
• WEBINAR: Avoiding Legal Pitfalls When Scaling Your Company
• WEBINAR: To Bid, or Not to Bid: That is the Question
• WEBINAR: OSHA Inspection & Citation Process
• WEBINAR: Three Roofing Projects Gone Wrong
• WEBINAR: Business Succession Planning in Construction: An Essential Tool in Your Toolbox
• WEBINAR: Roofing, Labor Shortage and Embracing Diversity, Technology and the Next Generation
• WEBINAR: High Wind Uplift Requirements for Tile Roofing - New Rules with ASCE 7-16
• WEBINAR: WSRCA Young Roofing Professionals - How to Attract and Retain Young Roofing Professionals to Your Business
• WEBINAR: Virtual Western Roofing Expo - Closing Session, Awards, and Nominations

DAVIS MEMORIAL FOUNDATION

• "Name Your" Scholarship Award
• Become a Partner for the Future & Help Support Higher Education
• Apply Today for a $5,000 Scholarship!

We also wanted to take the opportunity to thank our members for renewing this year, our exhibitors for supporting the first ever Virtual Western Roofing Expo, and our donors for contributing to the Davis Memorial Foundation’s scholarship program. 2020 has been extraordinarily tough, especially for associations, as many rely heavily on in-person events and have had to pivot towards online offerings to stay relevant.

THANK YOU to everyone who supported WSRCA in one way or another this year. Your loyalty and support has allowed us to continue to provide roofing contractors with a member benefits package tailored to their needs. We are looking forward to a happier and healthier 2021!


- Western States Roofing Contractors Association

Brace Yourselves, Coronavirus’ Impact on the Roofing Industry Will be Felt

Courtesy of: Trent Cotney - Cotney Construction Law, LLP | WSRCA Legal Advisor; RoofingContractor.com

With almost 3,500 cases in the U.S. and more than 175,000 worldwide, the novel coronavirus (referred to in the medical community as COVID-19) has quickly become a global threat, not only to individual safety and health, but also to economies and businesses. Originating in Wuhan City, China in December 2019, the virus has rapidly spread to over 100 countries around the world. As more cases are confirmed by the day, the U.S. roofing industry is already experiencing the effects, and must brace itself for the challenges to come.

Preventative Measures for Employers

As COVID-19 continues to spread, it’s crucial for employers to implement safety protocols designed to prevent the spread of the virus among employees. Given the relatively low number of cases confirmed in the United States compared to the rest of the world, most American workers are not considered to be at significant risk of contracting the virus at the time of publication. Nevertheless, employers need to be aware of procedures for navigating the health and well-being of their employees while ensuring employee’s rights are not being violated. Given the lack of experience the American workforce has dealing with large-scale pandemics like COVID-19, there is very little case law or statutory authority for employers to rely on in these situations.

Luckily, OSHA has recently taken the opportunity to remind employers that existing OSHA standards apply to protecting their workers from the coronavirus, including, in particular, OSHA’s Personal Protective Equipment standards, 29 C.F.R. 1910 Subpart 1, and the General Duty Clause, 29 U.S.C. § 654(a)(1). OSHA also noted that its Bloodborne Pathogens standard, 29 C.F.R. 1910.1030, is not directly applicable in regards to coronavirus protections because the virus is not transmitted through blood, but it does offer a framework that may help control some sources of the virus including exposure to bodily fluids.

OSHA has also created a webpage dedicated to providing employers information on the spread of COVID-19, the possible consequences it could have on the overall health of your employees and company, and on establishing standards and guidelines for preventing transmission should one of your employees become infected.

Another good resource for employers is the Equal Employment Opportunity Commission’s advisory opinion on “Pandemic Preparedness in the Workplace," which offers guidance on the responsibility of employers amidst a public health crisis. The advisory opinion suggests that an employer’s ability to question an employee about their health — while generally prohibited — may be broader during a pandemic like COVID-19, citing examples where doing so may be appropriate. Some examples of these situations include requesting information from employees who return from travel about the locations they visited and any symptoms they may be experiencing resulting from such travel, requiring employees exhibiting flu-like symptoms to have their temperature taken prior to returning to the jobsite, and allowing employers to use their discretion in sending an employee home who exhibits flu-like symptoms on the jobsite.

However, these additional measures can only be taken when the employer, based on objective, factual information, determines that the employee poses a “direct threat” — or a significant risk of substantial harm — to the health or safety of other individuals in the workplace. Additionally, despite more lenient restrictions, employers must be careful not to violate their employees’ rights under the ADA, FLSA or Title VII. Keep in mind that any information received by an employer as a result of these inquiries must remain confidential and an employer may not take adverse employment action (termination, demotion, etc.) on grounds that an employee is suspected of or is diagnosed with COVID-19. The purpose of these guidelines is solely to ensure the safety and health of your employees and business, rather than punish employees who may become infected.

Impact on Supply Chain

While the U.S. roofing industry has not yet been affected to the extent of some other countries, the impact of the virus on Chinese production has been devastating for global markets and construction supply chains. Mass public quarantines, curfews, and travel restrictions implemented to help fight the spread of the disease have crippled Chinese manufacturing and shipping sectors, among others. In the roofing industry in particular, the most drastic effects have been on the manufacture and supply of solar roofing systems, with production grinding to a halt in the most affected areas of mainland China — where 60%-70% of the world’s solar roofing panels are manufactured.

However, it’s not just solar roofing materials that are likely to see a decline in production due to the rapid spread of COVID-19. Production of aluminum, plastic, slate, timber and rubber have all declined worldwide since the early weeks of the outbreak — mainly due to the lack of workforce and transportation stoppages plaguing much of Asia. One area that has been hit particularly hard by the virus is China’s Shandong Province, which is not only home to some of China’s largest aluminum manufacturers, but also produces more than 90% of the world’s collated roofing nails.

The most recent estimates suggest that manufacturing plants in the region are currently operating at just 30%, and some project the workforce shortages will continue for the foreseeable future. Some American roofing contractors have already implemented four to six week delays on projects due to this material shortage. It’s not a matter of if, but when the effects will hit your roofing business, how extensive they will be, and how long they will last.

Among the ramifications U.S. roofing companies can expect to begin feeling, if they haven’t already, include higher costs and price fluctuations, material shortages, logistics breakdowns, order cancellations, and extended delays in product fulfillment and shipping. All of that ultimately leads to slower project completion times and potential legal squabbles with both suppliers and project owners down the road. Roofers are urged to begin preparing for these effects now by evaluating their own supply chains from end to end to pinpoint vulnerabilities, identifying potential alternative supply sources, preparing for costs to soar, and making sure they have adequate provisions in their contracts to protect themselves from the increased costs, supply chain delays and interruptions due to the ongoing coronavirus crisis.

Force Majeure Clauses

One of the ways contractors can seek to protect themselves is by including a “force majeure” clause in their contracts. It’s a provision that allocates the risk of performance if performance is delayed indefinitely or stopped completely due to circumstances outside of a party’s control that makes performance impossible, inadvisable, commercially impractical, or illegal. It also provides notice to the parties of the types of events that would cause a project to be suspended or that would excuse performance.

The purpose of the provision is to relieve a party impacted by the force majeure by extending, temporarily suspending or terminating the contract due to unexpected and unavoidable events such as “acts of God,” including severe weather events, earthquakes, landslides, and wildfires. It also covers certain man-made events like riots, wars, terrorist attacks, explosions, labor strikes, and scarcity of energy supplies. To be classified as a force majeure event, the event must be beyond the control of the contracting parties, it cannot be anticipated, foreseeable, or expected, and the event must be unavoidable.

Without a force majeure clause in place, in some jurisdictions, both the owner and contractor would share the risk, but in many others, the risk falls on the shoulders of the contractor. Thus, anything that cannot be anticipated while drafting the contract and factors that could impede progress should be negotiated between the parties and addressed via a force majeure clause.

When seeking to limit exposure, contractors must be specific and clear in their contract language when defining the scope and effect of a force majeure clause to protect themselves from unexpected liabilities. The following elements should be addressed in a force majeure clause:

• What events are considered force majeure?
• Who is responsible for suspending performance?
• Who is allowed to invoke the clause?
• Which contractual obligations are covered by the clause?
• How is the inability to perform determined?
• What happens if the event continues for an extended time period?

For companies that already have force majeure clauses in their standard contracts, it would still be wise to review those provisions to make sure they provide clear, comprehensive, and adequate protections for the company and consider whether terms such as “widespread epidemic,” “pandemic,” and/or “public health emergency” should be added. Courts will often interpret the clause based on what is specifically listed in the contract. Contractors should also review the terms of their existing force majeure clauses in preparation for potentially needing to invoke them for coronavirus-related issues, as many times force majeure clauses contain requirements, such as providing written notice within a certain timeframe and mitigating some of the damages caused by non-performance.

Price Acceleration Provisions

In light of the wide-ranging and potentially long-lasting effects posed by the coronavirus epidemic on construction supply chains worldwide — and specifically, overseas suppliers of roofing materials — contractors should also consider adding terms to their contracts to protect themselves from labor and material price increases in the form of a price acceleration provision. A price acceleration provision generally provides that the roofing contractor may adjust the contract price to reflect the revised actual cost of the labor and materials. Assuming the contractor is using its own labor force, there may not be a significant enough increase in labor costs to warrant an adjustment of the contract. As a result, the price acceleration clause is usually limited to increases in materials over the course of a project.

Price acceleration provisions typically require the contractor to provide the prime contractor or owner with evidence supporting the claim for additional compensation through documentation of the cost increase. Price acceleration clauses also sometimes contain a termination for convenience provision that may allow the contractor to escape a contract if the cost of materials has increased exponentially or the materials themselves have become difficult or impossible to find. This last component is generally disfavored and often removed from the contract by prime contractors and owners because of the uneasiness they have with the idea of a termination for convenience.

Nevertheless, it’s still a worthwhile option to propose in order to provide the contractor with the utmost protection caused by substantial unexpected increases in the price and availability of materials. Below is an example of a standard price acceleration provision that contractors should consider adding to their contracts:

If there is an increase in the actual cost of the labor or materials charged to the Contractor in excess of 5% subsequent to making this Agreement, the price set forth in this Agreement shall be increased without the need for a written change order or amendment to the contract to reflect the price increase and additional direct cost to the Contractor. Contractor will submit written documentation of the increased charges to the Prime Contractor/Owner upon request. As an additional remedy, if the actual cost of any line item increases more than 10% subsequent to the making of this Agreement, Contractor, at its sole discretion, may terminate the contract for convenience.

A roofing contractor may find it difficult to include a price acceleration clause in its contract with a prime contractor because both the owner and the prime contractor are looking for fixed prices prior to the start of the construction. In that situation, the roofing contractor may want to consider buying and storing materials prior to the start of construction to avoid the increases in prices that are expected to occur once the full force of the coronavirus-related disruption to China’s roofing industry supply chains begins to be felt in earnest in the U.S.

Roofing contractors may also want to request a deposit to purchase the requested materials depending on the nature of the job.  To the extent that a subcontractor adds a price acceleration provision to their contract, the subcontractor should consider requesting that the prime contractor also add a similar provision in its contract to allow the prime contractor to seek additional funds from the owner for any labor or price acceleration that occurs.

Conscientious Bidding

Roofing contractors should also be cautious and use common sense when providing firm bids for contracts for projects that may not begin construction for several months from the time the proposal is submitted. Under these circumstances, the contractor faces additional exposure for any increases in the costs of labor and materials caused by the negative impacts of the coronavirus on the roofing industry following the bid process. Therefore, estimating those jobs thoughtfully, appropriately, and perhaps more conservatively can potentially make or break a roofing contractor. At least for the time being while the extent of the repercussions of the coronavirus on the market are not yet known, and for many months to come until the epidemic is under control and global supply chains and economies begin to normalize.

Since there is no current vaccine for the coronavirus and the number of infected individuals continues to rise every day, no one can say how long it will take for the virus to be contained and the economy to normalize. So now’s the time for roofing contractors to take steps to mitigate their risks and protect themselves from the wide-ranging and potentially calamitous effects that are expected to continue hitting the U.S. construction industry once the aftershocks from the virus’ impact on China’s manufacturing and supply lines make their way here in full force. 

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Cotney Construction Law will be hosting a webinar on the Coronavirus to go over the specific contract provisions you need to combat COVID-19. OSHA policies and dealing with employees from an HR perspective will also be discussed.

Part II will discuss legal issues with growing your business, how to scale up and scale down quickly and effectively and the Standard Operating Procedures needed to dominate the industry.

Featuring Trent Cotney, CEO of Cotney Construction Law and John Kenney, COO of Cotney Construction Law. If you are a Cotney subscription member, you will receive complimentary access.

WSRCA Members can use discount code "WSRCA10" to receive a $10 discount on registration.

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LEGAL DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

Courtesy of: Roofing Contractor Magazine

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On Dec. 31, 2019, the Federal Aviation Administration (FAA) published “The Remote ID Notice of Proposed Rulemaking (NPRM).” According to a posting on the FAA website, www.faa.gov, “The Remote Identification proposed rule provides a framework for remote identification of all UAS (unmanned aerial systems) operating in the airspace of the United States. The rule would facilitate the collection and storage of certain data such as identity, location, and altitude regarding an unmanned aircraft and its control station.”

The publication of the NPRM started the clock on a 60-day period for public comments. I’m not going to get into all the details, which are numerous, but will simply share with you that I’m concerned about this new remote identification rule as it relates to roofing contractors operating UAS (also referred to as drones).

While the FAA cites safety and security as the key motivations for establishing new rules for small unmanned aircraft operating in the nation’s airspace, they’re lacking in hard data to demonstrate that there’s a problem. I do know for a fact, however, that using UAS for making measurements and roof inspections is far, far safer than climbing ladders and walking roofs.

The new rules, which are also said to be needed to enable “beyond visual line of sight” (BVLOS) flights and unmanned aerial delivery services, will make it very difficult for small individual operators, such as your roofing business, to operate a UAS. It will require an Internet connection to your UAS and that UAS will have to be equipped to transmit its location (geo-location, altitude, etc.) to the FAA or its authorized agents.

In my opinion, making rules for the emerging uses for BVLOS shouldn’t require remote identification for virtually everything flying in the commercial realm and most everything in the world of the remote-controlled hobbyist. BVLOS operations will likely, at least for the foreseeable future, be dominated by large companies delivering goods as well as medical and public safety interests.

The equipment required to support the proposed remote ID would likely not be onerous for these large operators, but would make it difficult and expensive for operators of one or a very small fleet of UAS. The idea of drone-delivered goods is intriguing, but roofing contractors are operating UAS to make their work safer today.

Should the FAA move forward with their proposal after the 60-day comment period, it will take three years for it to go into effect. This would supposedly allow enough time for UAS manufacturers to gear up to install new equipment that will provide the interface required to remotely identify your UAS.

You may wish to read up on the proposal and submit your comments to the FAA. There are several ways to do this, but you must act by March 2, 2020. Start by going online to www.faa.gov and do a search on “UAS Remote Identification.” I submitted my comments online and I urge others in the roofing industry to do likewise. My comments, along with the others, may be found online at regulations.gov.

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LEGAL  DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

Courtesy of: Alexander Acosta — U.S. Secretary of Labor


WASHINGTON, D.C. -- With National Prescription Take Back Day last week, the Department of Labor released new informationon what we have learned about the opioid crisis and how we are improving our effectiveness in overcoming its challenges.

In 2017, President Donald Trump’s administration declared the opioid epidemic a national public health emergency and directed all executive agencies to use every appropriate emergency authority to minimize the devastation. Since 2017, the U.S. Department of Labor’s Office of Workers’ Compensation Programs’ (OWCP) has dedicated significant resources to stem the abuse, misuse, and proliferation of opioids to protect 2.7 million federal workers from harmful opioid prescription practices.

The use of opioids to treat injured federal workers continued, virtually unchecked, until 2017. The capability to monitor dose level and duration by the department was not even available until operational changes were instituted that year. Since we started this effort, a series of successes can be attributed to the implementation of a four-point strategic plan: (1) effective controls, (2) tailored treatment, (3) impactful communications with employees and providers, and (4) aggressive fraud detection.

The strategic plan’s core is a process where the department continuously gathers information and analyzes data. The results yielded great progress:

• 51% decline in new opioid prescriptions that last more than 30 days;

• 59% decline in claimants prescribed a morphine equivalent dose (MED) of 500 or more;

• 31% decline in claimants prescribed a MED of 90 or more;

• 30% decline in overall opioid use; and

• 24% drop in new opioid prescriptions

A recent study highlights the unique challenges facing a legacy population of injured federal workers who have been prescribed opioids over an extended period of time. Specifically, the study showed that nearly 1 in 4 injured workers in this group had been prescribed a high dose of 90+ morphine equivalent dose. This is important because the higher the opioid dose, the higher the risk for misuse and overdose death. Higher doses, greater than 100 MED, have more than two times the risk relative to lower doses. Additional risk factors, including the use of extended-release opioids and the associated use of certain interacting medications, were also identified.

The legacy challenges needed to be confronted. All federal injured workers with a prescription of 90+ MED underwent extensive individual case reviews. Treating physicians were contacted and, as needed, nurses were assigned. Our goal was to work with the medical provider and injured worker to provide opioid treatment where needed, reduce the opioid risk level, and assist in securing the benefits needed for pain management. These efforts are continuing with second level reviews currently being conducted by a clinical team of pharmacists.

Tapering an addictive drug takes time and there are a host of interacting factors to consider, yet as the statistics prove, the intense focus produced a real difference. This effort is not the federal government deciding what is best for patients. Rather, the federal government is acting as a responsible employer by caring about its workforce and ensuring that employees are getting the treatment and support needed for what can be a challenging recovery.

We are committed to (1) engaging individual employees and (2) analyzing the effects on the employee population as a whole. To win this battle, we must embrace a strategy that pursues accurate information, continuously evaluates that information, and invests the time necessary to find the right, healthy solutions for individuals struggling with opioids.

Alexander Acosta is the 27th U.S. secretary of labor.

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LEGAL  DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

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Courtesy of WSRCA Legal Counsel: Trent Cotney, Cotney Construction Law

Early last year, the Occupational Safety and Health Administration (OSHA) announced the start of an all new approach to its safety inspections—through drones. Since its introduction, at least nine inspections were conducted with camera-enabled drones. Of these nine inspections, the majority were used due to hazardous circumstances on-site such as a recent collapse, fire or explosion.

Drone usage during safety inspections provides OSHA with a quick and detailed view of an employer’s facility, and possibly a more expansive view of what might have been seen by an in-person inspector. While this might be good for OSHA as it significantly cuts down time needed to perform such an inspection, employers should be wary of the ramifications.

The good news? Drone usage for OSHA’s safety inspections doesn’t come without restriction. In an eight-page memo addressed to its regional administrators on May 18, 2018, OSHA laid out the guidelines and procedures it must adhere to in order to use Unmanned Aircraft Systems (“UAS”) a/k/a drones. One established limitation on this type of inspection is employer consent. This means that employers have the right to say no to the little robot flying above your worksite. But is “no” really the best answer?

Although employers have a 4th Amendment right to object to the expansion of an overbroad search, this doesn’t necessarily mean that you should deny OSHA the ability to inspect your site through drone usage. By making this objection, OSHA is then required to obtain a search warrant to inspect your property. This objection, only delaying the inevitable, might not be worth getting on OSHA’s bad side. Instead, see if you can work with OSHA to create a limit in the scope of the search and participate in the drone flight planning, which in turn will help address concerns regarding the expansive view that comes with drone inspection.

Another concern to watch out for is the possibility of OSHA being granted its request for a Blanket Public COA from the Federal Aviation Administration (FAA). This Blanket Public COA will allow OSHA to use drones anywhere in the country. If granted, it is unclear how the employer consent will play into this, if at all.

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LEGAL  DISCLAIMER

All rights reserved.  All content (text, trademarks, illustrations, reports, photos, logos, graphics, files, designs, arrangements, etc.) in this Technical Opinion (“Opinion”) is the intellectual property of Western States Roofing Contractors Association (WSRCA) and is protected by the applicable protective laws governing intellectual property. The Opinion is intended for the exclusive use by its members as a feature of their membership. This document is intended to be used for educational purposes only, and no one should act or rely solely on any information contained in this Opinion as it is not a substitute for the advice of an attorney or construction engineer with specific project knowledge. Neither WSRCA nor any of its, contractors, subcontractors, or any of their employees, directors, officers, agents, or assigns make any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or any third party’s use (or the results of such use) of any information or process disclosed in the Opinion.  Reference herein to any general or specific commercial product, process or service does not necessarily constitute or imply its endorsement or recommendation by WSRCA. References are provided as citations and aids to help identify and locate other resources that may be of interest, and are not intended to state or imply that WSRCA sponsors, is affiliated or associated with, or is legally responsible for the content reflected in those resources. WSRCA has no control over those resources and the inclusion of any references does not necessarily imply the recommendation or endorsement of same.

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Courtesy of: OSHA.gov

BACKGROUND

Falls from heights and on the same level (a working surface) are among the leading causes of serious work-related injuries and deaths. OSHA estimates that, on average, approximately 202,066 serious (lost-workday) injuries and 345 fatalities occur annually among workers directly affected by the final standard.

OSHA’s final rule on Walking-Working Surfaces and Personal Fall Protection Systems better protects workers in general industry from these hazards by updating and clarifying standards and adding training and inspection requirements. The rule affects a wide range of workers, from window washers to chimney sweeps. It does not change construction or agricultural standards.

The rule incorporates advances in technology, industry best practices, and national consensus standards to provide effective and cost-efficient worker protection. Specifically, the rule updates general industry standards addressing slip, trip, and fall hazards (subpart D), and adds requirements for personal fall protection systems (subpart I).

OSHA estimates this rule will prevent 29 fatalities and 5,842 lost-workday injuries every year.

The rule benefits employers by providing greater flexibility in choosing a fall protection system. For example, it eliminates the existing mandate to use guardrails as a primary fall protection method and allows employers to choose from accepted fall protection systems they believe will work best in a particular situation — an approach that has been successful in the construction industry since 1994. In addition, employers will be able to use nonconventional fall protection in certain situations, such as designated areas on low-slope roofs.

As much as possible, OSHA aligned fall protection requirements for general industry with those for construction, easing compliance for employers who perform both types of activities. For example, the final rule replaces the outdated general industry scaffold standards with a requirement that employers comply with OSHA’s construction scaffold standards.

The rule phases out a 1993 exception for the outdoor advertising industry that allows “qualified climbers” to forego fall protection. At least three workers have fallen from fixed ladders under this exception. One of them died. The final rule phases in the fixed ladder fall protection requirements for employers in outdoor advertising.

FALL PROTECTION OPTIONS

The rule requires employers to protect workers from fall hazards along unprotected sides or edges that are at least 4 feet above a lower level. It also sets requirements for fall protection in specific situations, such as hoist areas, runways, areas above dangerous equipment, wall openings, repair pits, stairways, scaffolds, and slaughtering platforms. And it establishes requirements for the performance, inspection, use, and maintenance of personal fall protection systems.

OSHA defines fall protection as “any equipment, device, or system that prevents a worker from falling from an elevation or mitigates the effect of such a fall.” Under the final rule, employers may choose from the following fall protection options:

• Guardrail System – A barrier erected along an unprotected or exposed side, edge, or other area of a walking-working surface to prevent workers from falling to a lower level.

• Safety Net System – A horizontal or semihorizontal, cantilever-style barrier that uses a netting system to stop falling workers before they make contact with a lower level or obstruction.

• Personal Fall Arrest System – A system that arrests/stops a fall before the worker contacts a lower level. Consists of a body harness, anchorage, and connector, and may include a lanyard, deceleration device, lifeline, or a suitable combination. Like OSHA’s construction standards, the final rule prohibits the use of body belts as part of a personal fall arrest system.

• Positioning System – A system of equipment and connectors that, when used with a body harness or body belt, allows a worker to be supported on an elevated vertical surface, such as a wall or window sill, and work with both hands free.

• Travel Restraint System – A combination of an anchorage, anchorage connector, lanyard (or other means of connection), and body support to eliminate the possibility of a worker going over the unprotected edge or side of a walking-working surface.

• Ladder Safety System – A system attached to a fixed ladder designed to eliminate or reduce the possibility of a worker falling off the ladder. A ladder safety system usually consists of a carrier, safety sleeve, lanyard, connectors, and body harness. Cages and wells are not considered ladder safety systems.

ROPE DESCENT SYSTEMS

The rule codifies a 1991 OSHA memorandum that permits employers to use Rope Descent Systems (RDS), which consist of a roof anchorage, support rope, descent device, carabiners or shackles, and a chair or seatboard. These systems are widely used throughout the country to perform elevated work, such as window washing.

The rule adds a 300-foot height limit for the use of RDS. It also requires building owners to affirm in writing that permanent building anchorages used for RDS have been tested, certified, and maintained as capable of supporting 5,000 pounds for each worker attached. This mirrors the requirement in OSHA’s Powered Platforms standard.

LADDER SAFETY SYSTEMS

Falls from ladders account for 20 percent of all fatal and lost work-day injuries in general industry. The new rule includes requirements to protect workers from falling off fixed and portable ladders as well as mobile ladder stands and platforms. (The ladder requirements do not apply to ladders used in emergency operations or ladders that are an integral part of or designed into a machine or piece of equipment).

In general, ladders must be capable of supporting their maximum intended load, while mobile ladder stands and platforms must be capable of supporting four times their maximum intended load. Each ladder must be inspected before initial use in a work shift to identify defects that could cause injury.

Fixed Ladders – Fixed ladders are permanently attached to a structure, building, or equipment. These include individual-rung ladders, but not ship stairs, step bolts, or manhole steps. The new rule phases in a requirement for employers to have ladder safety or personal fall arrest systems for fixed ladders that extend more than 24 feet, and phases out the use of cages or wells for fall protection under the following timeline: Starting in two years, all new fixed ladders and replacement ladder/ladder sections must have a ladder safety or personal fall protection system. For existing ladders, within two years, employers must install a cage, well, ladder safety system, or personal fall arrest system on fixed ladders that do not have any fall protection. Within 20 years, all ladders extending more than 24 feet must have a ladder safety or personal fall arrest system.

Portable Ladders – Portable ladders usually consist of side rails joined at intervals by steps, rungs, or cleats. They can be self-supporting or lean against a supporting structure. The final rule will be easier for employers and workers to understand and follow because it uses flexible performancebased language instead of detailed specification and design requirements. Under the revisions, employers must ensure that: rungs and steps are slip resistant; portable ladders used on slippery surfaces are secured and stabilized; portable ladders are not moved, shifted, or extended while a worker is on them; top steps and caps of stepladders are not used as steps; ladders are not fastened together to provide added length unless designed for such use; and ladders are not placed on boxes, barrels, or other unstable bases to obtain added height.

TRAINING REQUIREMENTS

The rule adds a requirement that employers ensure workers who use personal fall protection and work in other specified high hazard situations are trained, and retrained as necessary, about fall and equipment hazards, including fall protection systems. A qualified person must train these workers to correctly: identify and minimize fall hazards; use personal fall protection systems and rope descent systems; and maintain, inspect, and store equipment or systems used for fall protection.

When there is a change in workplace operations or equipment, or the employer believes that a worker would benefit from additional training based on a lack of knowledge or skill, then the worker must be retrained. The training must be provided in a language and vocabulary that workers understand.

TIMELINE

Most of the rule will become effective 60 days after it is published in the Federal Register, but some provisions have delayed effective dates, including: • Ensuring exposed workers are trained on fall hazards (6 months), • Ensuring workers who use equipment covered by the final rule are trained (6 months), • Inspecting and certifying permanent anchorages for rope descent systems (1 year), • Installing personal fall arrest or ladder safety systems on new fixed ladders over 24 feet and on replacement ladders/ladder sections, including fixed ladders on outdoor advertising structures (2 years), • Ensuring existing fixed ladders over 24 feet, including those on outdoor advertising structures, are equipped with a cage, well, personal fall arrest system, or ladder safety system (2 years), and • Replacing cages and wells (used as fall protection) with ladder safety or personal fall arrest systems on all fixed ladders over 24 feet (20 years).

ADDITIONAL INFORMATION

Additional information on OSHA’s rule on walking-working surfaces and personal fall protection systems can be found at https://www.osha.gov/Publications/OSHA3903.pdf. OSHA can provide extensive help through a variety of programs, including technical assistance about effective safety and health programs, workplace consultations, and training and education. For more information on other safety-related issues impacting workers, to report an emergency, fatality, inpatient hospitalization, or to file a confidential complaint, contact your nearest OSHA office, visit www.osha.gov, or call OSHA at 1-800-321-OSHA (6742), TTY 1-877-889-5627

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