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DISCLAIMER: Unless specifically noted at the beginning of the article, the content, calculations, and opinions expressed by the author(s) of any article in Insulation Outlook are those of the author(s) and do not necessarily reflect the views of NIA. The appearance of an article, advertisements, and/or product or service information in Insulation Outlook does not constitute an endorsement of such products or services by NIA. The information is provided as a reference service only, and no claims for technical accuracy can be guaranteed. Material may have become outdated since publication. The user may want to verify the technical accuracy prior to use of this information. The article may not be reproduced in any means, in whole or in part, without the prior written permission of the publisher and NIA. To reprint this information, contact the NIA offices.

Safety Issues Affecting Contractors and Distributors: Roundtable Highlights

By Gary Auman

At the NIA Committee Days on November 9, 2011, the National Insulation Association (NIA) Health and Safety Committee hosted a 4-hour Health and Safety Roundtable, which attracted quite a few representatives from both the contractor and distributor sides of the insulation industry. The Safety Roundtable brings contractors and distributors together to discuss issues and problems related to safety and health or workers' compensation that confront them in their businesses. It was hosted by the Chair of the Health and Safety Committee, Chris Handley, and NIA's General Counsel, Gary Auman. Below are highlights of the Roundtable.

Fiberglass Classification Changes

The first discussion concerned the relatively recent reclassification of fiberglass as a possible carcinogen. The attendees discussed the fact that this same action was taken by the International Agency for Research on Cancer (IARC) almost 15 years ago. At that time, the Occupational Safety and Health Administration (OSHA) approached the NIA, North American Insulation Manufacturers Association (NAIMA), and the Insulation Contractors Association of America (ICAA) about the possibility of agreed rulemaking for exposure to fiberglass.

OSHA wanted to apply the same exposure limits to fiberglass that existed (and still do) for asbestos. This exposure limit is a time weighted average of 0.1 f/cc of air over an 8-hour time weighted average. NIA objected to this proposal and maintained its position through the negotiations process with OSHA, NAIMA, and the ICAA. At the end of the discussions, both NAIMA and the ICAA agreed to a health and safety partnership program (HSPP) with OSHA, while NIA reached a separate agreement with OSHA for a much more realistic partnership program, which became known as the Contractor Health and Safety Partnership Program (CHSPP). The CHSPP required no actual changes to the way contractors protected employees who might be exposed to fiberglass fibers.

Shortly after the programs were put in place, IARC reclassified fiberglass back to a non-carcinogen. The attendees discussed the appearance that the considerations for the regulation of fiberglass have now come full circle and IARC is back to where it was almost 15 years ago. At this point, the attendees all agreed no real action can be undertaken by either individual contractors or NIA until a definitive position is taken by IARC and OSHA.

Workers' Compensation Claims

Controlling workers' compensation claims costs are discussed at every Safety Roundtable. A large part of a small contractor's manpower costs are frequently eaten up by workers' compensation premiums. While workers' compensation costs can tie directly into the effectiveness of a contractor's health and safety program or injury reduction program, the attendees agreed that the insurance carrier the contractor uses and the contractor's relationship with that carrier, as well as its policy language, can contribute significantly to the overall costs of its workers' compensation insurance.

Many of the contractor attendees agreed there is no substitute for vigilance when it comes to workers' compensation coverage. First, several contractors agreed that negotiating with your insurance carrier for workers' compensation coverage can often have a significant impact. You need to establish:

  • How is the insurer going to follow up on any workers' compensation claim that may be filed?
  • What rights and contributions can the contractor or distributor make toward any workers' compensation claim settlement?
  • If it is to the economic benefit of the insured (contractor), can the insured contribute out-of-pocket funds to any workers' comp claim settlement in an effort to keep its premium costs down?

How much attention do you pay to your experience modification rate (EMR)? One of the attendees reported that there are now computer programs available to calculate EMR. Such a computer program can pay for itself if it helps the contractor understand what has gone into the calculation of its EMR and whether the EMR calculated by the insurance carrier is correct. Several attendees reported incidents where they were able to determine that the EMR was, in fact, too high and that the insurance carrier was misapplying claims information to their EMR calculation.

All contractors attending this session agreed that EMR is important not only because it determines the potential costs of your workers' compensation coverage, but also because many general contractors and owners are looking at the EMR on pre-qualifications for bid work. Several attendees reported that an EMR above 1 could put you out of the competition for lucrative contracts.

In addition to paying attention to how your insurance carrier is calculating your premiums, the attendees suggested other things a contractor can do to help control the costs of workers' compensation claims:

  • Always investigate any industrial accident.
  • Have a management employee accompany any injured worker to the urgent care facility, emergency room, or wherever they are sent for treatment. Contractors should always know and have spoken to any emergency care provider so the provider understands the type of work the contractor does, what the various limitations are on its employees, and the work that they do.
  • Contractors need to follow up with injured workers on disability. The contractor needs to make sure the employee really is injured and is following the doctor's restrictions and treatment recommendations. The contractor also needs to visit the employee at home and pay attention to communications with the employee, as well as conversations of other employees concerning the injured worker's recovery and his/her ability to return to work.

Another comment was made that when working on an Owner Controlled Insurance Program (OCIP) job, the contractor needs to be sure all the hours worked by its employees are reported to the contractor's insurance company, as well as used on the particular project to calculate rates.

As a result of this discussion, the committee is going to assemble a list of questions for member contractors to ask their insurers when shopping for insurance.

Hazard Awareness and Training

Chris Handley and other attendees emphasized the importance of site-specific hazard analysis and training whenever beginning a new job. They emphasized that this analysis and training should continue while working on any job.

Mr. Handley pointed out that while you can identify hazards, it is the unsafe acts by employees that typically cause injuries. While hazard assessment and identification of hazards are extremely important, these steps are only part of the solution. Employees must be trained on how to perform their work safely in light of the identified hazards.

Vigilance by safety and supervisory personnel on every job is extremely important. One contractor reports using electronic tablets with its safety checklist. After the checklist is completed each day on each job, it is sent to the master file for daily safety audits of the job site. These electronic reports are also copied with company officials and safety personnel within the company.

It is important that when a safety audit is performed, the person performing it takes it seriously. Gary Auman reported that many times when he sees safety checklists that he needs to defend an OSHA citation, the list has one line that runs through all the blocks from the top of the page to the bottom. The only conclusion an Administrative Law Judge or an OSHA official is going to draw from that type of a safety checklist is that the individual completing it is not serious about safety or his responsibilities to help ensure a safe workplace for employees.

The attendees at the Roundtable requested the Health and Safety Committee pull together the best practices from applicants for the Theodore H. Brodie Distinguished Safety Award. The attendees requested this information be distributed as an NIA member benefit so everyone can see what the best of the best are doing to provide a safe workplace. The committee will take up this request at its next meeting at the NIA Annual Convention in Scottsdale, Arizona, April 18–21, 2012.

OSHA Rules and Citations

From the discussion regarding safety hazard awareness, the group moved into discussing the proposed OSHA standard called I2P2 or Injury and Illness Prevention Programs. The I2P2 standard will require employers to have an injury and illness prevention program specifically designed for each job site with a goal of reducing or eliminating injuries and illnesses on each job site. This proposed rule is in the initial rulemaking stages at OSHA.

Another rule that was discussed is the proposal to require employers to report any overnight hospitalization of any one employee to OSHA within 8 hours of the time that injury or illness would qualify for reporting. Again, this proposal is in its infant stages in the regulatory rulemaking process. A concern voiced by many of the attendees is that this sort of reporting would expose employers who have never had an OSHA inspection to scrutiny merely because an employee was hospitalized overnight following an industrial accident.

As the Roundtable was winding down, attendees discussed OSHA citations and settlements of OSHA cases, fall protection issues, and aerial work platform issues. Gary Auman, NIA General Counsel, discussed his recent experiences with OSHA settlements and the handling of OSHA citations. Mr. Auman pointed out that many, but not all, OSHA Area Directors are refusing to negotiate much more than the penalty at informal conferences and are limiting their penalty discussions to about a 30 percent reduction of the proposed fine. He reported that many of his clients, after being made aware of this, are determining that the informal conference is a waste of their time and effort and are going right to filing a notice of contest. The most important thing in the settlement is to get an audience with someone at OSHA with whom the contractor or its representative can openly discuss the citations, the defenses that the contractor feels it might have, and the fines and penalties in an effort to reach a fair resolution prior to having to go into litigation.

The aerial platform discussion centered on the propensity of OSHA to draw various ANSI standards into the enforcement of the work platforms–specific standards. In a non-mandatory appendix to the aerial platform construction standard, ANSI standards concerning the use of aerial platforms is drawn into consideration. One of the key areas being addressed concerns the difference between familiarization training and hands-on operator training.

Contractors need to be aware that the OSHA standard does not necessarily require any specific training. The standard itself, 1926.453, requires that only authorized personnel be permitted to operate aerial work platforms. The ANSI standard, which is referenced by the OSHA standard in a non-mandatory appendix, indicates that before a person can operate a lift, they have to receive familiarization training with lift. Familiarization training is nothing close to operator training. Familiarization training merely requires that the employee be familiar with where the various manuals are kept, where the different controls are, and what the controls are for.

There is also a requirement in the ANSI standard (again referenced by the OSHA standard in a non-mandatory appendix) for a pre-shift inspection of the aerial work platform. There is no requirement that a record be made of this inspection; however, whenever an inspection is performed on a regular basis by a contractor or a distributor, it is a good idea for a written record of that inspection to be made for the protection of the employer.

Future Topics

At the conclusion of the Roundtable, the attendees voted to incorporate the Health and Safety Roundtable into the Health and Safety Committee's agenda and extend the committee meeting time, since topics discussed in recent Roundtables fit into the committee's agenda. Some potential topics for next year's committee meeting and roundtable concern insurance and what to pay attention to when looking at insurance coverage. Another suggested topic is a platinum-level safety program checklist and a workers' compensation checklist. Finally, the attendees suggested a discussion on any technological advances related to health and safety.

The committee will look at all these topics when it begins to assemble the agenda for the November 2012 Health and Safety Committee meeting. We hope to see you there. If you do plan to attend and/or have a topic you feel should be discussed, please e-mail either Gary Auman, NIA General Counsel (gwa@dmfdayton.com), or the NIA staff (events@insulation.org).


This article appeared in the January 2012 issue of Insulation Outlook.

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Author

Gary Auman

Gary Auman is a Partner in the law firm of Dunlevey, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers' compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.




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