April 2018

OSHA Delays Enforcement of Beryllium Rules to May 11

On March 7, the Occupational Safety and Health Administration delayed enforcement of its rules on occupational exposure to beryllium by 60 days to May 11. That is, OSHA will not enforce the Permissible Exposure Limits and the Short Term Exposure Limits for beryllium in construction until May 11. OSHA also clarified that it will not enforce other parts of the construction beryllium standards without additional notice. Further, OSHA announced that if an employer fails to meet the new PEL or STEL, the agency will inform the employer of the exposure levels and offer assistance “to assure understanding and compliance.”

ASA Chief Advocacy Officer E. Colette Nelson applauded OSHA’s action, while advising construction employers to “not wait until the last minute to comply. Establishing internal policies and establishing monitoring procedures take time in even the most sophisticated company,” she said.

OSHA’s final rule on beryllium, issued on Jan. 9, 2017, established new PELS and contained several other ancillary provisions that apply to general industry, construction and shipyards. After objections from ASA and others in the construction industry, on June 27, 2017, OSHA proposed a new rule revoking the ancillary provisions for the construction standards. In that announcement, OSHA announced that it would not enforce the new construction standards without further notice. Then on Aug. 24, 2017, OSHA raised questions when it announced on its Web site that it would not enforce the ancillary provisions of the new standard, but did not address the PEL or STEL. OSHA reports its most recent delay is the result of its “extensive settlement discussions with several parties who have filed legal actions.”

OSHA Inspectors to Look for Reporting Failures

In guidance issued on Feb. 21, the Occupational Safety and Health Administration directed inspectors to refer to the new OSHA database to assure that employers they are inspecting have submitted their 2016 data. Under a new OSHA rule implemented in 2017, employers with 250 or more employees or employers with 20 or more employees in high-risk industries, including construction, must submit their OSHA Forms 300A electronically. The deadline for the submission of such records was Dec. 21, 2017; employers can no longer submit their 2016 records electronically. Under the new guidance, OSHA will address employers that failed to provide records based on the individual circumstances:

• If the employer attempted to submit its forms but failed due to a technical difficulty and can provide correspondence with an OSHA office to corroborate its efforts, the inspector will collect the records and issue no citation.
• If an employer failed to submit its records, but provides a paper copy of the records immediately upon inspection, the inspector will issue an other-than-serious citation with no penalty.
• If an employer failed to submit its 2016 data, but shows that it already submitted its 2017 data, the inspector will issue an other-than-serious citation with no penalty.
• If an employer fails to produce its 2016 records and has not filed its 2017 records, the inspector will issue an other-than-serious citation with the appropriate penalty.

The OSHA penalty for other-than-serious violations is $12,934 per violation.

Crane Certification Group Urges Employers to Prepare for Compliance

“Every day that goes by without certified [crane] operators … means those working around cranes—and even the general public who daily navigate construction sites in city after city across the country—are being put at risk…,” said Graham Brent, chief executive officer, National Commission for the Certification of Crane Operators.

Late last year, the Occupational Safety and Health Administration delayed its crane operator certification until Nov. 10, 2018. In a new briefing document and a series of short videos, NCCCO provides five compelling reasons why waiting to certify should not be an option for a responsible safety-minded employer or operator:

• If you wait till the last minute you may not have time to be certified.
• Employers still have an obligation to train. So why not see if that training has been effective by certifying?
• You’re probably paying higher insurance premiums if your operators aren’t certified.
• You’re likely missing out on work to employers who do have certified operators.
• Ultimately, it’s the right—and safe—thing to do.

“The safety benefits that accrue from professionally-developed, accredited certification … are so compelling, it just doesn’t make any sense to delay embracing it a day longer,” Brent said. NCCCO is the nation’s largest leader in accredited certification for crane operators and other personnel who work with and around cranes.

Suicide in the Construction Industry: What You Need to Know

As a member of the Construction Industry Alliance for Suicide Prevention, ASA shares the mission of creating a zero-suicide industry. Workplaces that adhere to a strong culture of safety set a goal of zero workplace-related fatalities. Suicide is no exception. What if construction industry leaders believed that suicide could be eliminated and did everything in their power to prevent it? In construction, many lives are lost to suicide and workers to depression and substance abuse. Not only is there a profound human cost, but there is also loss of economic strength as companies wrestle with absenteeism, presenteeism, and loss of productivity. Whether you are an owner, executive, manager or supervisor in the construction industry, this topic demands your personal attention. One resource to get you started is Construction + Suicide Prevention:  10 Action Steps Companies Can Take. This guide and other resources are available on the Alliance Web site.

No Contract, No Problem—Just Sign Here!

Sometimes, clients need services that are not outlined in contracts. For example, a paving subcontractor might be called in to help with roads needing immediate repair after a natural catastrophe. In cases where it’s not practical to negotiate a contract, subcontractors can take a few simple steps to minimize misunderstandings about the work they’ve been asked to do and how the bill will be calculated. Avoiding misunderstandings and getting the job done means getting a few critical details of the work in writing. These include brief descriptions of the labor, equipment and materials to be used and their costs (by unit, as appropriate).

ASA, the Associated General Contractors of America (AGC), and the Associated Specialty Contractors (ASC) recommend using the attached work authorization form, developed and published as part of the AGC/ASA/ASC Guidelines for a Successful Construction Project. While verbal commitments invite misunderstanding, a work authorization form, or some similar written agreement setting out critical details, will provide a basis for the cost of the work. This type of agreement will also show the representatives of the parties requesting the work who authorized it to proceed. The “Guideline on Charges for Non-contracted Construction Services” notes that, where practical, “[s]ervices should be rendered or material or equipment furnished” by the parties only on the basis of “prior notice” and “concurrence.” Except in those rare (read: emergency) scenarios where there’s not enough time for a client to authorize new work in writing, the subcontractor will want at least those essentials to back up a claim for payment. Major pieces of a formal agreement like payment and insurance terms will be lacking in the work authorization because it’s not as extensive as a traditional contract. Nevertheless, it will far surpass mere “he said” and “she said” arguments when the subcontractor wants to get paid. Another key when providing non-contracted services is to file payment claims promptly. The guideline states:

“No charges for services rendered or materials furnished by the contractor to the subcontractor or by the subcontractor to the contractor should be valid unless a written claim is given by the contractor to the subcontractor, or by the subcontractor to the contractor, during the first ten days of the calendar month following that in which the claim originated.”

Promptness is particularly important when there is no contract. It’s better to know about any problems with payment as early as possible in case there are questions that need to be resolved, or lien filings or other actions need to be taken.

New Web Site Gives Readers One More Way to Read The Contractor’s Compass

Some readers may prefer to read The Contractor’s Compass in a digital, page-flipping format, while others may prefer to be able to print out a pdf and read the magazine on paper. Now, there’s one more way to read ASA’s official educational journal for subcontractors—online! A new ASA Web site, contractorscompass.org, devoted to The Contractor’s Compass gives readers the ability to read, and search for, articles on the Web. The seven newest articles appear on the home page, and all articles, including from past editions, can be found under the “Articles” link. Links to past PDFs and digital, page-flipping magazines are located under the “Archives” link. Using the “Search” box at the bottom of the site, you can look for specific topics, like “Legally Speaking” or “Cash Management” for example. If you’re reading an article on a topic and you want to find other articles on the topic, simply click on the boxed keywords adjacent to the article, like “Taxes,” “Forecast,” “Claims,” “Bidding,” or “Contracts.” Of course, you can still access The Contractor’s Compass under “News & Periodicals” or “Foundation of ASA Home” via the ASA Web site, www.asaonline.com.

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