Ready, Set Sorry, Time's Up!

Have you ever received a flyer or coupon in the mail that got you really excited, but then burst your bubble when you realized the sales date ended yesterday?

Have you ever received a flyer or coupon in the mail that got you really excited, but then burst your bubble when you realized the sales date ended yesterday? Then you wonder, did the company send it out too late on purpose, or did the post office drag its feet on the delivery end? Either way, you feel like you've missed a great opportunity.

I got this same feeling about a week ago when I ran across a U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) Trade News Release that announced OSHA was accepting public comments on a Notice of Proposed Rulemaking (NPRM) on personal protective equipment (PPE) and training standards. The press release was issued on August 19th, and the deadline for accepting public comments closed on September 18th. In other words, by the time this issue hits your desk, the 30-day public comment period will have quickly passed you by.

According to the release, the proposal clarifies that when an OSHA standard requires an employer to provide PPE or training to employees, it must do so for each employee subject to the requirement. Each employee not protected may be considered a separate violation for penalty purposes. It goes on to say the proposed rule affects OSHA's general industry, construction, and maritime standards. In many cases, OSHA combines separate violations of a single requirement in a standard into a single penalty. However, under the instance-by-instance penalty policy, OSHA may propose a separate penalty for each specific violation where the employer demonstrates a flagrant disregard for safety and health. The release goes on to say that the proposed rule makes clear that failure to provide appropriate PPE or training may result in per-instance penalties in appropriate cases. The proposed rule does not add new compliance obligations, nor are employers required to provide any new type of PPE or training. The amendments merely clarify that a separate penalty may be assessed for each employee not provided the required PPE or training.

Why the big rush to push this through so quickly? In my opinion, 30 days just isn't enough time — especially for the organizations that represent many small- to medium-sized contractors. As I dug into this issue a little deeper, I realized my thinking aligned with others in the construction field. In fact, I ran across three letters posted on the OSHA Web site, all of which requested a 90-day extension for submission of written comments. Here are a few excerpts from those letters.

“ASA believes the proposed requirements will have a substantial impact on construction employers, in particular smaller businesses.” — E. Colette Nelson, executive vice president, American Subcontractors Association, Inc., Alexandria, Va.

“The National Utility Contractors Association (NUCA) is concerned that the amendments proposed by OSHA will have a greater impact on the construction industry and our membership than OSHA has envisioned.” — George S. Kennedy, vice president of safety, NUCA, Arlington, Va.

“Contrary to OSHA's supposition, the proposed rule is complex and presents a number of significant legal and cost issues that must be analyzed before ABC can provide informed and meaningful comments.” — Robert A. Hirsch, director, legal and regulatory affairs, Associated Builders and Contractors, Inc., Arlington, Va.

Kennedy and Hirsch also requested that OSHA schedule public hearings on this matter, which would give the agency an opportunity to better explain the requirements, respond to submitted written comments, and allow those affected by the change to request further clarification and express their concerns verbally. I couldn't agree with them more. What are your thoughts? If you want to share them with OSHA, then I hope an extension is granted. Otherwise, you're out of luck.

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