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OSHA’s Silica Requirements now “Crystal” Clear for the Construction Industry

Friday, April 1, 2016
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Update

On April 6, 2017 OSHA announced its intent to delay enforcement of the “Crystalline Silica Standard for Construction”. Construction employers must comply with all provisions in the standard by September 23, 2017.

Labor, employer, and business groups filed suit in federal courts after the standard was published on March 25, 2017 arguing the rule “is both technologically and economically infeasible”. It is unknown when these cases will be heard and what the outcomes may be.

Interestingly, groups representing labor reject aspects of the standard and specifically the medical monitoring provisions. The transitional nature of the construction workforce may literally expose workers to numerous chest x-rays in the course of a year as employers require the examinations to comply with the OSHA standard.

Considering the relatively short extension to comply, the complexity of the new standard, and the fact nearly every contractor may be impacted, we are advising affected employers to start developing the strategies and programs necessary to comply by the extended enforcement deadline of September 23. Please contact your Horton representative if you have questions.

On Friday, March 25th OSHA published its final rule covering crystalline silica in construction, general industry, and shipbuilding. Crystalline silica has been on OSHA’s radar screen for the last 10 years. The agency has been in the process of developing a comprehensive standard during that time. This informational piece focuses on construction, a similar article has been published on silica for the manufacturing industry.

Silica is found in the most common building materials on the planet including sand, mortar, concrete, asphalt, drywall, drywall compound, bricks, blocks, stone, tile, and many more building materials too numerous to list. Unlike lead paint, building materials containing silica are safe for workers and consumers until they are cut, ground, or broken into small particles inhaled and deposited in the lungs during installation, maintenance, or removal. Over time, this causes mechanical damage to the lungs resulting in several diseases including silicosis, chronic obstructive pulmonary disease (COPD), cancer, and even kidney disease.

The new regulation replaces an antiquated method of evaluating exposure to silica and establishes a much lower threshold to which employees can be exposed in addition to comprehensive requirements including measuring exposures, engineering controls, medical evaluations, specialized written programs, training, housekeeping requirements, and record keeping. Because silica is such a universal component of so many building materials, nearly every general contractor and trade contractor will be impacted by the new regulation.

The standard published on March 25th is “effective” on June 23rd, 2016, but becomes enforceable on June 23rd, 2017. Future pieces will focus on specifics of the regulation and specific OSHA compliance liabilities, but the purpose of this article is to inform of the existence of the new law and the effect it will have on many facets of construction operations and risk management practices.

More workers died from silicosis in 2014 than deaths from fires, caught in or between type deaths, or crushing injuries such as those suffered in trench collapses. Also, these deaths do not include workers who died from COPD, lung cancer, and kidney disease. Clearly, silica in construction is a very real problem and the deaths do not count the additional thousands of workers who suffer the results of the diseases before death occurs. The inception of the new standard will most certainly result in exponential growth of the number of work related diseases and deaths diagnosed as a result of exposure to silica.

Workers’ compensation insurers are, or will become, aware of these new requirements. Silica is already used by many insurers in the assessment and appetite for construction accounts. Because the use of silica in construction is so pervasive, insurers will not necessarily avoid construction risks altogether, but will certainly exercise their due diligence to assure a prospective insurance client is addressing exposure to silica through compliance with this new standard. Contractors with no formal silica program in place may be declined, non-renewed, or priced accordingly.

Perhaps more importantly, it is anticipated the regulation will result in a large number of previously undiagnosed cases being discovered. Many workers exposed to silica over the years may be taking their symptoms for granted. The chest x-rays and medical evaluations required in the new standard will certainly reveal lung conditions that may be directly or indirectly related to exposure to silica. As everyone already knows, the aggravation of a pre-existing condition results in a claim to the current employer. Also, the medical community itself will be better informed with the publication of the new standard and will be more likely to connect the existence of COPD, lung cancer, and the other effects associated with occupational exposure to silica. These occupational disease claims will likely be quite costly.

Combined with the fact so many of the most valuable, skilled craftsmen in the trades are working past the customary age for retirement in construction, the numbers of workers with silica related disease, or conditions that could be aggravated by exposure to silica, could be staggering. The loss of these skilled workers to temporary or total permanent disability will have an obvious adverse impact on construction operations if it creates a void of once key personnel.

No pun intended, but “burying your head in the sand” is not a viable strategy to address this new OSHA standard. This new standard is much, much more than a requirement to issue respirators and tell employees to stand upwind of dust plumes. The contractors who get in front of this issue are far more likely to successfully weather the storm than those who do not. Fortunately, from an OSHA compliance and risk management perspective, there is plenty of time to develop a strategy for compliance. Those who adopt a very aggressive strategy will be the industry leaders and positioned to survive the consequences of this sweeping new standard.

The links below connect you to documents published by OSHA providing a very general overview of the new standard. Future pieces will focus on specifics in the law and the specific strategies construction firms can use to stay ahead of this new law and all of its many non-compliance related implications. Please reach out with any questions or concerns you have. We are happy to help guide you through these murky waters in understanding this new and complex regulation.

Additional information

Additional information on OSHA’s silica rule can be found at www.osha.gov/silica.

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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