The Fifth Circuit Court of Appeals in December ruled that the Department of Labor can cite general contractors for workplace safety violations that put subcontractors’ workers in danger. The case explored the legality of OSHA’s multi-employer citation policy.
The National Association of Home Builders has been challenging the multi-employer work site doctrine for years, and filed an amicus brief, along with the Texas Association of Builders and other construction groups, in the case, Acosta v. Hensel Phelps Construction Co.
Read the full report by clicking here.
The Occupational Safety and Health Administration on Monday released a set of 53 frequently asked questions – and their answers – to provide guidance to employers and employees on its respirable crystalline silica standard for construction.
Through the Construction Industry Safety Coalition, NAHB was an important contributor to the formulation of this FAQ. The development stemmed from litigation filed against OSHA by numerous construction industry trade associations challenging the legality of the new silica rule.
NAHB will continue to look for ways to work with OSHA to improve the workability of this significant rule.
The FAQ is extensive and organized by topic. A short introductory paragraph is included for each group of questions; the answers appear in an expanded box when each question is clicked.
Importantly, the FAQ clarifies that many common construction tasks are likely to be outside the scope of the standard. This includes mixing small amounts of mortar; mixing small amounts of concrete; mixing bagged, silica-free drywall compound; mixing bagged exterior insulation finishing system base and finish coat; and removing concrete formwork.
In addition, tasks in which employees are working with silica products that are handled while wet are likely to generate exposures outside of the scope of the standard, including finishing and hand wiping block walls to remove excess wet mortar, pouring concrete, and grouting floor and wall tiles. The FAQ also states that many silica-generating tasks performed for 15 minutes or less a day will fall outside the scope of the standard.
Other clarifications in the FAQ highlighted by NAHB staff include:
Table 1. The requirement that employers “[o]perate and maintain” tools “in accordance with manufacturer’s instructions to minimize dust emissions,” applies only to manufacturer instructions that are related to dust control. Other information in these instructions, including recommended respiratory protection, do not have to be followed for purposes of the standard.
OSHA also has agreed to issue a Request for Information on Table 1 to revise the table to improve its utility.
Written Exposure Control Plan. The standard does not require employers to develop a new written plan for each job or worksite. It requires only that employers have a written exposure control plan applicable to each worksite. Employers may develop a single, comprehensive, written exposure-control plan that covers all required aspects of the plan for all work activities at all worksites.
Also, the standard does not preclude employees from entering work areas where silica-generating tasks are occurring when it is necessary for them to do so. Rather, the rule calls only for minimizingthe number of employees in the relevant work areas.
All home builders should carefully review the new FAQ at https://www.osha.gov/dsg/topics/silicacrystalline/construction_info_silica.html.
Your HBA was informed this morning that OSHA is targeting construction sites in Greenville, Spartanburg, and Anderson. They call this a blitz enforcement. OSHA currently has staff in the Upstate identifying sites for potential enforcement. In particular, they are looking for fall hazards and struck-by hazards.
Be sure all of your sites, even single-home sites, are in full compliance with OSHA rules and regulations.
(September 20, 2017) Ever wonder what your Home Builders Association is doing for you in Washington DC and around the country? Below is a report of the issues on which we are engaged:
1. Canadian Softwood Lumber
- The U.S. Department of Commerce imposed a 20% countervailing duty on Canadian lumber imports in April, and added 7% antidumping duties in June.
- In late August, Commerce announced a delay in the final duties to Nov. 18. This will allow more time to negotiate a settlement. Collection of countervailing duties is suspended for now, but antidumping duties will continue to be collected.
- NAHB is meeting with representatives with the Trump Administration and Congress as well as Canadian officials to address home builder concerns regarding price and availability of lumber.
- These meetings are especially important because U.S. consumers cannot participate in trade disputes, although NAHB provided witness testimony during the International Trade Commission hearing on Sept. 12.
- Generally, lumber prices have increased, but that may be partly due to wildfires in the Western U.S. and Canada.
- NAHB is urging U.S. lumber producers to increase production for domestic consumption, and working to identify alternate foreign sources of dimensional lumber.
2. Disaster Response
- In the aftermath of two devastating hurricanes, NAHB is working closely with state and local home builder associations in those areas to help them meet the needs of members affected by the storms.
- We sent out an all-member email with information on how to donate to the recovery effort.
- NAHB issued statements on hurricane-related advocacy. Our leadership conducted media interviews on flood-related topics, including the need for the National Flood Insurance Program (NFIP) reauthorization, building codes, rebuilding efforts and labor shortages.
- We updated our online Disaster Recovery toolkit with new media talking points and safety information for contractors.
- We added resources on hiring contractors and places to donate on our consumer Web page.
- We are creating resources on business continuity; hiring reputable contractors; and best practices for flood damage repair work.
- We will continue to reach out to the affected communities to see how to help in the rebuilding efforts.
- With respect to resiliency, our Resiliency Working Group issued its final report and recommendations in July. Many of the recommendations are related to disaster preparedness, resiliency, recovery and communications.
- The hurricanes have illustrated the importance of disaster response and planning for rebuilding, and the Resiliency Working Group will now help ensure NAHB can be a resource and problem solver after a natural disaster.
3. Electronic Recordkeeping
- The Occupational Safety and Health Administration’s 2015 electronic reporting rule requires certain employers to electronically submit injury and illness data that they are mandated to keep under existing recordkeeping regulations.
- The rule also contains anti-discrimination prohibitions to protect workers who notify an employer of a workrelated injury or illness.
- NAHB has concerns about several elements of the rule, including the requirements for employers to submit records electronically to OSHA that would become publicly available. In January, NAHB and other stakeholders filed a legal challenge.
- On May 5, NAHB and other organizations submitted a petition to the Department of Labor (DOL) seeking a stay of implementation and enforcement of the rule, and requested OSHA re-open the rulemaking.
- In June, OSHA announced it was extending the filing deadline for employers to submit electronic records to December, which would give OSHA more time to review the rule.
4. Federal Flood Risk Management Standard
- In response to the charge led by NAHB and as part of President Trump’s Executive Order to expedite federal approval for infrastructure projects, the Administration revoked Executive Order 13690 and the Federal Flood Risk Management Standard (FFRMS).
- Our advocacy efforts included participating in federal listening sessions and meetings; submitting comment letters to federal agencies; and requesting that President Trump revoke it.
- This standard would have dramatically expanded regulated floodplain areas.
- However, in response to the hurricanes, the Trump Administration may establish its own flood standard.
- If the Administration chooses to do so, NAHB will work with the White House to develop an effective standard that does not place undue regulatory burdens on residential construction projects.
- The H-2B Temporary Non-Agricultural Worker program allows employers who cannot find local labor for short-term or seasonal jobs to fill those positions with temporary foreign workers.
- There is an annual cap of 66,000 on H-2B visas issued in a fiscal year, but that cap excluded workers who had participated in the program within three years.
- That “returning worker exemption” expired in September 2016 and has not been renewed by Congress.
- In May, Congress approved a spending package for the remainder of FY 2017 that included language allowing the Department of Homeland Security (DHS) to raise the statutory cap for 2017 to allow additional visas.
- In July, DHS announced it would make 15,000 more visas available, but only to employers who could demonstrate that their business would suffer “irreparable harm” without H-2B workers.
- The next round of H-2B visas will become available on Oct. 1. NAHB hosted a free webinar to help employers learn if they qualify to apply for H-2B workers and how they can become certified employers under the program.
- With Congress and the Administration focused on immigration enforcement, the prospect of creating a new guest worker program to benefit builders and specialty trades is highly unlikely.
- NAHB continues to advocate for restoration of the returning worker exemption while looking for opportunities to expand and reform the H-2B program.
6. Low-Income Housing Tax Credit (LIHTC)
- On Aug. 1, NAHB Chairman Granger MacDonald testified before the Senate Finance Committee on “America’s Affordable Housing Crisis.” The hearing focused on the LIHTC.
- Chairman MacDonald also discussed how lots and labor shortages, building material price increases and regulations affect housing affordability.
7. National Flood Insurance Program (NFIP)
- The NFIP was extended until Dec. 8 as part of a broader legislative package.
- During NAHB’s Leg Con in June, builders spoke to their congressional delegations about provisions in the House Financial Services Committee’s flood insurance bill that negatively targeted new construction and grandfathered properties.
- NAHB was able to convince the committee’s leadership to remove those provisions.
- After Hurricanes Harvey and Irma, discussions about changing the program were put on hold as policymakers ensured home owners and communities had short-term certainty and financial aid.
- NAHB will work with Congress on long-term legislation that ensures an affordable, available, predictable and financially stable NFIP.
8. Regulatory Reform
- President Trump has made regulatory reform one of his top priorities, and has asked each agency to evaluate existing regulations and identify ones that should be repealed, replaced or modified.
- We have submitted recommendations to the Environmental Protection Agency (EPA), Department of Housing and Urban Development (HUD), Federal Emergency Management Agency (FEMA), National Marine Fisheries Service (NMFS), Fish and Wildlife Services (FWS), Department of Justice (DOJ) and Department of Energy (DOE), and will soon submit feedback to the Army Corps of Engineers.
- NAHB will provide suggestions to DOL, OSHA and others once their notices are published.
- We will review the 2017 Fall Regulatory Plan and Agenda upon its release and determine if our suggestions were incorporated.
- The Small Business Administration (SBA) Office of Advocacy is also collecting input on regulatory reform through a series of nationwide Regulatory Roundtables; NAHB has had good representation at all roundtables to date.
- As part of the Cleveland roundtable, NAHB member George Davis met with SBA officials at one of his construction developments.
- NAHB will continue its outreach to HBAs and members as additional roundtables are announced.
- On August 28, NAHB testified before the SBA’s Regulatory Fairness Board about the enforcement activities of federal agencies, particularly EPA and OSHA.
9. Overtime Rule
- Under a new rule that was set to go into effect Dec. 1, 2016, the Obama Administration doubled the annual salary level used to determine whether an employee qualifies for the professional, administrative and executive exemption to overtime eligibility from $23,660 to $47,476.
- Under the new rule, the salary threshold would also be automatically adjusted every three years.
- NAHB and many other industry groups challenged the rule in federal court.
- We contended that DOL went beyond its authority under the Fair Labor Standards Act to allow the salary limit to automatically be re-set every year. The Administrative Procedures Act requires these updates be made through regular notice and comment periods.
- In a victory for NAHB, a federal judge in Texas issued a preliminary injunction that temporarily barred the implementation of the rule.
- On Aug. 31, the Texas federal court held the rule was invalid and the three-year automatic increase DOL included was similarly unlawful.
- DOL’s appeal of the preliminary injunction is now moot and likely to be dismissed.
10. Smart Market Report
- Preliminary findings from them Green Residential Smart Market Report show that green building activity should increase over the next few years. Approximately 60 percent of surveyed builders expect it to be a significant share of their overall activity by 2022. This is nearly double from 2014, when only 32 percent of firms reported that level of green building.
- Single- and multifamily home builders agree that energy efficiency and healthier indoor environments are key factors in building a green home, and have prioritized these elements in the construction process.
- The Smart Market report found that ENERGY STAR is more popular in the single-family market while LEED and the National Green Building Standard (NGBS) are more popular with multifamily builders.
- The Green Residential Smart Market Report is a biannual report released by NAHB and Dodge Data and Analytics (formerly McGraw Hill). The report reviews the history and future of green home construction in the single-family, multifamily and remodeling sectors.
- NAHB launched an online toolkit in August to help HBAs advocate for programs that provide a clear path to compliance, reduce redundancy and meet water quality goals.
- The toolkit provides simple checklists that compare pros and cons of different regulatory approaches based on climate, geography, and local land use patterns. This data will help our members in conversations with state regulators.
- As part of the toolkit launch, NAHB released A Developer’s Guide to Post-Construction Stormwater Regulation. This report provides a state-by-state breakdown on the top permitting issues affecting builders.
12. Tax Reform
- A team of congressional leaders and Administration officials known as the “Gang of Six” is developing a structure for tax reform, while President Trump is trying to garner nationwide support on the issue.
- House Speaker Paul Ryan intends to move tax reform this fall.
- Before Congress can address tax reform, it must pass a budget resolution to set up the procedural process known as reconciliation. This will allow tax reform to pass the Senate with only 50 votes.
- However, there is growing resistance in the House to passing a budget resolution before members see the Gang of 6’s tax framework. To use the reconciliation process, the House and Senate must pass identical budget resolutions, which will be challenging.
13. Waters of the U.S. (WOTUS)
- On Oct. 11, the U.S. Supreme Court will hear oral arguments on whether the 2015 WOTUS rule should be litigated in federal trial court or the appellate court.
- NAHB has argued that challenges to the WOTUS rule must be first heard at the trial court.
- We need this clarity so we do not have to file two lawsuits when we challenge an EPA Clean Water Act regulation.
- Meanwhile, the EPA plans to use a two-step process to develop a new WOTUS definition.
- In the first step, the EPA has proposed to withdraw the 2015 WOTUS Rule and revert to the status quo. We expect the agency to finalize the withdrawal by early 2018.
- The EPA also plans to develop a new WOTUS rule, and will soon take comments on the proposal.
- NAHB is taking advantage of its unprecedented access to EPA Administrator Scott Pruitt, and is working with the agency on a new rule that is clear and limits jurisdiction of the Clean Water Act consistent with congressional intent.
- In August, NAHB and the Dallas Builders Association hosted a meeting with Administrator Pruitt in Dallas to voice concerns and offer insight about the new rule.
- NAHB and the Colorado Association of Home Builders are planning a similar meeting with Administrator Pruitt in Colorado Springs in October.
- In late October, NAHB will provide recommendations on a revised WOTUS definition at a business-focused in-person listening session at EPA headquarters.
For more information about these or other Federal government affairs issues, contact Michael Dey (email@example.com).
Enforcement of the new Confined Spaces in Construction Standard, issued by the Occupational Health and Safety Administration (OSHA) on May 4, will be postponed until Oct. 2, the agency announced today. Extension requests indicated that employers needed more time for training and acquiring the equipment necessary to comply with the standard.
Though the ruling will still become effective Aug. 3, OSHA will not issue citations to an employer that is making good-faith efforts to fulfill training requirements and comply with the standard. The agency will consider the following factors when evaluating these efforts:
- Has the employer trained its employees as required under the new standard, or at least scheduled such training?
- Does the employer have the equipment necessary for compliance, including personal protective equipment?
- Has the employer ordered or arranged to obtain the equipment required for compliance, or taking alternative measures to protect employees from confined space hazards?
- Has the employer engaged in additional efforts to educate and protect workers when it comes to confined space hazards?
In general, the new rule requires employers to:
- Evaluate the jobsite to identify confined spaces
- Develop a written program and permitting system for permit-required confined spaces
- Control physical hazards and conduct monitoring for atmospheric hazards in confined spaces that are permit required
- Provide training for confined space entrants, attendants, supervisors and emergency duties.
Find more information on the rule at nahb.org/confinedspaces. Also, read what builders have to say about the new ruling and the National Associations of Home Builders’ stance on it as well.