The year's end provides an opportunity to reflect on changes that have affected the construction industry as a whole, as well as those changes in the works that may affect future operations. In some years, those changes may fall within the category of "more of the same." However, in other years, the changes may have a significant impact on daily operations. In 2015, OSHA implemented several changes that significantly impacted daily operations and announced additional changes likely to be seen in 2016 that will have a potential impact on operations for both general contractors and subcontractors in the construction industry.
BROADER RECORDKEEPING AND REPORTING REQUIREMENTS
Effective Jan. 1, 2015, OSHA instituted revised regulations concerning recording and reporting workplace incidents. These new regulations expanded the types of employers required to maintain records and also increased reporting requirements for all covered employers.
With respect to record keeping, employers with 10 or fewer employees at all times during the previous calendar year continue to be exempt from maintaining workplace injury and illness records. However, the new regulations this year effectively reduced the number of typically low-risk industries partially exempt from record keeping requirements. As a result, industries such as building material and supplies dealers, commercial machinery rental and leasing, and facilities support services are now required to maintain workplace incident records.
Regarding mandatory reporting workplace incidents, prior regulations required reporting only for work-related fatalities and hospitalizations of three or more employees. However, the new regulations now require employers to report all work-related fatalities within eight hours, as well as all work-related inpatient hospitalizations of one or more employees, all work-related amputations and all work-related losses of an eye within 24 hours. Thus, the new mandatory reporting regulations, like the record keeping requirements addressed above, place an increased obligation on employers to report certain workplace injuries and illnesses to OSHA.
CONTINUED EMPHASIS ON 'TEMPORARY WORKERS'
In April 2013, OSHA implemented the Temporary Worker Initiative to increase focus on OSHA requirements and regulations involving temporary workers. More than two years since its implementation, OSHA continues to emphasize protection and training for temporary workers. Recent developments also indicate this initiative remains at the forefront of OSHA enforcement efforts.
Under applicable OSHA guidance, "temporary workers" are those supplied to a "host employer" but paid by a "staffing agency," regard less of the relative permanence of the job. OSHA considers both the staffing agency and the host employer as "joint employers," requiring both the staffing agency and the host employer to share responsibility for providing and maintaining a safe work environment.
In its guidance documents on temporary workers, OSHA continues to recommend the staffing agency and host employer be proactive in defining the obligations each will undertake to ensure compliance with applicable workplace safety rules, such as requiring both to jointly review the worksite and identify necessary training and protections that should be provided for each temporary worker. OSHA further recommends both parties exchange and review each other's injury and illness prevention programs and history, as well as clearly define the temporary worker's scope of engagement. With respect to record keeping and reporting, OSHA regulations place the burden on the employer to provide day-to-day supervision, which is "the employer supervis[ing] the details, means, methods and processes by which the work is to be accomplished."
A review of select OSHA citations issued in 2015 involving temporary workers shows increased willingness to cite both the host employer and the staffing agency when violations are found at the workplace. In one instance, OSHA cited an auto parts maker for six serious violations, including failure to implement a hearing conservation program and failing to reduce employee exposure to excessive heat, while also citing the temporary worker's staffing agency for the same violations. Similarly, OSHA cited a health food supplement manufacturer for failing to provide machine guarding, while also citing the staffing agency of failing to ensure the machinery was guarded properly.
Although not decided under OSHA regulations, the National Labor Relations Board's decision in Browning-Ferris Industries of California, Inc., eta/. also may shape OSHA's enforcement of joint employer situations in the future. As noted in a November 2015 Construction Executive article by Ashleigh Davenport, the NLRB's decision will impose joint employer liability even when an entity has "indirect" control over another entity's employees. Should OSHA adopt the NLRB's rationale in Browning-Ferris Industries when assessing workplace safety, the construction industry could face increased scrutiny given its reliance on contractor-subcontractor and temporary worker relationships.