A Publication of the Subcontractors Association of Western Ohio

Your Source for Business Ethics And CONstruction

AUGUST 2014

SAWO STATEHOUSE DAY

We had a very successful Statehouse Day last month in Columbus with the Construction Conversation group. Justice Bob Cupp presented a very insightful keynote address sharing his unique perspective as an Ohioan who has served in every branch of state government. We are supportive of his efforts to rejoin the Ohio House of Representatives in the election this fall and look forward to working with such a knowledgeable and well-respected statesman. Members in attendance from all the participating associations had great meetings with several members of the General Assembly on such diverse issues as public contracting documents, advertising and public information sharing policies on public work, the underground damage prevention enforce-ment legislation, retainage, commercial roofing licensing, and municipal tax reform. Some good contacts were established at the legislative

reception as well. The attendees also got a chance to see both houses of the General Assembly in

session and be on the House and Senate floor to be a part of the action on their insiders tour of the Statehouse. They took in the rich history of the Statehouse and gained an appreciation for all of the historically accurate renovations. Thanks to everyone to took time to participate in this great event and helped further our mission to advocate on behalf of the construction industry.

Justice Robert Cupp

SAWO Joins Coalition Against Federal Reverse Auctions

SAWO joined more than a dozen other Ohio Construction Trade Associations in encourag-ing Senator Rob Portman to strongly urge him to introduce or co-sponsor the Construction Consensus Procurement Improvement Act of 2014. In the letter the coalition explained that , “the Construction Consensus Procurement Improvement Act of 2014 provides simple, no cost solutions to create a framework for growth in the construction industry and for more efficient federal government procure-ment. One component of the proposed bill of particular importance to Ohio’s construction industry: prohibiting the use of reverse auctions by federal agencies to procure design and construction services.” The letter also argued that use of reverse auctions in construction and design procure-ment is ineffective public policy. “The practice: fails to properly allocate risk; makes it more difficult for small and disadvantaged businesses to be awarded a bid; inhibits the competitive bidding process; and increases overall construction costs.” The results of a reverse auction pilot program conducted by the U.S. Army Corps of Engineers (USACE), the largest and most experienced federal construction agency were included with the letter to show how USACE determined that procuring design and construction services through reverse auctions “should be the very rare exception and not the rule—if used at all.”

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OSHA HOT OVER HEAT STRESS

OSHA is now focusing on heat related illnesses in the workplace even though it has no Standard which specifically addresses working in a hot environment.

It is aggressively pursuing employers and, in a Washington memo to OSHA’s Regional Administrators, it stated that “this memo directs the Field to expedite heat-related inspections and to issue Citations … as soon as possible.” Therefore, employers need to take action now to ensure a workplace free of heat hazards or face costly citations and litigation. As most employers know, but seldom address adequately, working in a hot environment puts stress on an employee’s body cooling system. Too much heat can result in dehydration, cramps, heat exhaustion and even a fatal heat stroke. The risk of heat stress depends upon many factors related to the individual employee and this makes the challenge of making a safe workplace for all even more challenging. Those risk factors include the employee’s physical condition, the temperature and humidity, clothing worn, the pace of work and how strenuous it may be, exposure to sun and environmental conditions such as air movement. In utilizing OSHA’s General Duty Clause, Section 5(a)(1), the agency is attempting to make “new law” further regulating employers’ activities. A violation of the General Duty Clause may exist when workers have been working in a hot environment, the employer is aware of the heat-related dangers, and has not taken adequate protective action for the workers – such as water, rest and shade. But, OSHA expects even more than water, rest and shade and that is why employers must take additional steps to address heat in the workplace. OSHA also insists upon implement-ing an acclimatization program for new employees and those returning from extended time away, such as vacations or leaves of absence. It also urges implementing a work/rest schedule and providing a climate controlled area for cool down. For those employers utilizing temporary employees, there is a greater risk of heat-related illnesses and OSHA would urge greater care in adopting an acclimatization program for them. Simply telling your employees that it is a hot day and they should take breaks when they

need to and drink as much water as necessary, will not meet OSHA’s expectations and could very easily result in a citation. OSHA believes that employers should actively encourage at least 5 to 7 oz. of fluids be consumed every 15 to 20 minutes. OSHA is urging that each employer establish a heat stress program, but when the employer does so it may very well be recognizing that there is a hazard in the workplace which needs to be addressed meaning-fully. Then, the Compliance Officer may find your program inadequate. This is a dilemma for employers yet unresolved by the courts. A heat stress program can have many components, including: TRAINING Hazards of stress Responsibility to avoid heat stress Recognition of danger signs/symptoms because

employees may not recognize their own First aid procedure Effects of certain medications in hot environment PERSONAL PROTECTIVE CLOTHING/EQUIPMENT Light summer clothing allowing free movement and

sweat evaporation Loosely worn reflective clothing to deflect heat Cooling vest and wetted clothing for special circum-

stances ADMINISTRATIVE/ENGINEERING CONTROLS Assess the demands of all jobs and have monitor-

ing and control strategies in place for hot days and hot workplaces

Schedule hot jobs for cooler parts of the day Reduce physical demands Permit employees to take intermittent rest breaks

with water breaks and use relief workers Have air conditioning and shaded areas available

for breaks/rest periods with ice available Increase air movement Exhaust hot air and steam HEALTH SCREENING/ACCLIMATIZATION Let employees get used to hot working conditions

by using a staggered approach over several days, such as beginning work with 50% of the normal workload and time spent in the hot environment and then generally increase it over five days

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BNA Construction Labor Report 04/24/2014

Economists Forecast Uptick in Private Construction as Public Project Spending Dips

Construction spending and employment will rebound from lower levels recorded in previous years as 2014 progresses, with growth expected to continue into 2015, a group of economists said during an April 17 webcast sponsored by Reed Construction Data. During the presentation on the industry's economic outlook, Chief Economists Bernard Markstein from Reed Construction Data, Ken Simonson from Associated General Contractors, and Kermit Baker from the American Institute of Architects said they are all optimistic that the construction industry will see significant growth in the heavy engineering, residential and non-residential markets over the next two years. However, the economists said they expect public construction to see minimal growth in the coming years due to declines in federal spending in that area.

Make employees aware that certain medications, such as Diuretics, anti-hypertensives (blood pressure), anti-cholinergics (pulmonary disease – COPD), and alcohol abuse, can exacerbate prob-lems.

OSHA is also inclined to cite an employer if prompt remedial action is not taken when an employee falls victim to heat stress. Employers should establish specific procedures for heat-related emergencies and provisions that First Aid be administered immediately to employees who display symptoms of heat-related illness. Those employees may very well resist First Aid because of the confusion caused by heat stress. Therefore, train-ing on the signs and symptoms is also encouraged. With summer here, and if it is to be anything like last summer, heat stress issues could rear their ugly head. Don’t be caught ill-prepared for an incident and a subsequent visit by OSHA – establish your heat stress program today. Dunlevey, Mahan & Furry currently is defending a significant heat stress fatality case and further guidance from the courts could result from this case. For more information regarding heat stress programs and the law, contact Bob Dunlevey, Dunlevey, Mahan & Furry (937) 223-6003.

New Location: University of Dayton River Campus

1700 South Patterson Blvd.

Dayton, Ohio

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DID YOU KNOW? The Ohio General Assembly is currently considering

draft legislation to make changes in the enforcement

and exemption provisions for the 811 Program

otherwise known as the “Call Before You Dig Laws”.

Senator Bill Coley of Southwest Ohio and State

Representative Robert Sprague of Northwest Ohio are

leading this effort based on work completed by the

Underground Damage Prevention Coalition, of which

SAWO is a participant. Interested party meetings will

take place throughout the summer. SAWO will be

representing subcontractor interests in these meet-

ings! Three drafts under consideration are available on

the OUPS website at: http://www.oups.org/

ExploreOUPS/LegislativeCoalition(OUDPC)/

ImportantDocuments. If you have questions or

comments, please call SAWO’s Government Affairs

Coordinator, Valerie Dahlberg at 888-294-0084.

We’re here to advocate for YOU!

Construction Conversation Monthly Newsletter and Call-In Briefings

Each month SAWO Members receive the Construction Conversation, a monthly recap of the latest legislative, agency, and judicial news for the construction industry. These quick nuggets of information are provided to keep you up to date in an efficient way and provide you a means to inquire for additional information on the topics of interest to your business. In addition to the newsletter we have introduced a new service that allows you to call in - absolutely free - each month to ask any question you may have on Ohio government issues. Whether you saw it in the newsletter, or heard about it on the jobsite, our government affairs consultant, Luther Liggett, Jr. is there to answer your questions and follow up with additional pieces in the newsletter as needed. The next call in is scheduled for 11:00 a.m. on August 14

th.

Dial in: 1-805-309-0010 Access Code 754-477-909#

SAWO Continues to Push for Municipal Tax Reform

Despite the success of our local State Representative, Mike Henne, in getting the Municipal Tax Reform bill passed out of the Ohio House of Representatives, the measure has stalled in the Ohio Senate. SAWO will join a chorus of industry and business groups in urging their local Senators to pass this important reform before the General Assembly adjourns in December. As you cross paths with your local officials while they are here in the area for the summer recess, please stress to them how important this issue is for contractors who have to bear the burden of the current tax reporting system. For more information on how to get involved, call the SAWO office 937-278-0308!

Are you a lively member Or do you just belong;

Do you merely wear a button Just to join the throng?

Come up to the meetings Join in friendly greetings,

And show you are a member Just to help the work along.

Don’t be just a joiner,

But work with hand and heart To show you are not a slacker

And glad to do your part. Visit the sick and needy;

It will come back two-fold. Workers of this caliber

Are worth their weights in gold.

Don’t be just a dead timber, But work in association’s hive;

Don’t say you haven’t got the time, Help keep the association alive;

For you will pass away some day And join the happy throng,

Then you’ll ask yourself, “Was I a Member, Or did I just belong?”

Written by an Anonymous Member that Believed

in Giving Back...1937

MEMBERS and BELONGERS

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OSHA Takes a Stand on Texting While Driving

I have spent quite a bit of time over the past several months talking about heat stress and the General Duty Clause. What does that have to do with texting while driving – four words – The General Duty Clause. Most employers get so caught up in worrying about compliance with specific safety standards that they sometimes lose sight of the fact that they are responsible for providing their employees a place of employment free of all hazards. Yes, I know the General Duty Clause say “recognized” hazards; but let’s be realistic. If there is an obvious hazard in the work-place to which your employees are exposed, you are going to have a hard time convincing OSHA that you did not consider it a hazard. This is especially true in the case of something that has been in the forefront of the news as much as texting while driving. OSHA has stated that it will consider an employer to be exposing its employees to a recognized hazard concerning texting while driving if the employer:

Requires workers to text while driving, Creates incentives that encourage or

condone texting while driving and/or Structures the work so that texting while

driving is a practical necessity.

Right now you are saying to yourself, I am fine because I don’t do any one of those three things. You might be right, but are you? How much do you know about how your managers incentivize those who work for them to work above their potential with positive or negative incentives? Perhaps not every day, but are there any days when the only way to get all the work done is to communicate while traveling? Unless you are absolutely sure that you can answer these questions correctively you are at risk. Even if you feel that you can, what would your employees say to an OSHA compliance officer during a confidential interview?

OSHA expects you to have distracted

driving policy as part of your safety program and to train you employees with regards to distracted

driving. Your distracted driving program should have five components:

You should prohibit texting while driving. You should establish work procedures

and rules that do not make it necessary for workers to text while driving in order to carry out their duties.

You should set up CLEAR procedures, times and places for drivers’ safe use of texting and other technologies for communicating with managers, customers, and others.

You should incorporate sage communi-cations practices into worker orientation and training.

You should eliminate financial and other incentive systems that encourage workers to text while driving.

OSHA has announced that it is prepared to

act quickly when it receives a credible complaint that employees are required to text while driving, either directly or indirectly. If the OSHA investigation bears out the complaint a citation will be issued, and I would expect that such a citation would be serious. In addition I fully expect compliance officers to review contractor safety programs to determine if the program contains material and training on distracted driving. The absence of such material may well result in serious citations.

This should not be too difficult a program to

institute. But, be sure you do more that add a page or two to your safety program. Be sure to do the training and also be sure that you enforce the rules you establish. Finally, this program should not stop a texting while driving. Your program on “Distracted Driving” should cover anything else an employee might feel inclined to do while they are behind the wheel on company business.

QUESTIONS?

As a SAWO Member, you can use your Legal Services Plan.

Just contact Attorney Gary Auman at

937-223-6003 for your FREE monthly consultation.

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2077 Embury Park Rd. Dayton, Ohio 45414 PH: 937-278-0308 FX: 937-278-0317

sawo@assnsoffice.com www.thesubcontractorsassociation.org