Contracting organizations and business owners around the country enjoyed a victory when President Donald Trump signed a resolution into law eliminating the Obama administration’s ‘Volks rule.’
The rule, formally known as Clarification of Employers’ Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness, was adopted by the Occupational Safety and Health Administration (OSHA) in December 2016 and extended the time companies could be held accountable for record-keeping violations from six months to five years. The 2016 regulation effectively negated a 2012 Appeals Court ruling involving Volks Constructors.
Congress passed the resolution through the Congressional Review Act (CRA), and Trump’s signature nullified the rule.
Associated Builders and Contractors Inc. (ABC) recently commended Trump for signing the resolution into law.
“The Volks rule, finalized by OSHA under President Obama, imposed a massive paperwork burden on contractors without improving job site safety,” said Kristen Swearingen, vice president of legislative and political affairs for ABC, in a news release. “Associated Builders and Contractors’ members value workplace safety and regulations based on sound evidence; however, OSHA’s rule directly contradicted the Occupational Safety and Health [OSH]Act and U.S. Court of Appeals decisions. ABC looks forward to continuing to work with OSHA to develop standards that include real-world input from contractors and accomplish the agency’s important goal of improving job site safety without unduly burdening job creators.”
Under the OSH Act, contractors are still required by OSHA to maintain injury and illness logs for five years. The cancellation of the rule effectively means employers cannot be cited for injury and illness recordkeeping violations older than six months.
Talbot Gee, CEO, Heating, Air-conditioning & Refrigeration Distributors International (HARDI), also applauded Trump’s actions.
“This rule does nothing to improve worker health and safety and burdens small businesses with unnecessary recordkeeping requirements,” Gee said. “We urge OSHA to focus on working with businesses to address matters that could prevent future workplace injuries.”
Sheet Metal and Air Conditioning Contractors’ National Association (SMACNA) was also pleased, releasing a statement to its members describing the organization’s rationale for signing onto a Coalition for Workplace Safety letter addressed to Congress.
The rationale included: The 2016 regulation to overturn the court ruling did not go through a typical public review and comment period; there are limited benefits to safety and health in permitting employers to be cited over a five year period; it presents additional administrative burdens to small companies who are already struggling with state and federal regulatory paperwork; union contractors already do a good job with maintaining records, so no increased enforcement actions are necessary; and OSHA should focus on issues that promote safe and healthy workplaces, including outreach and education for small businesses.
Barton James, senior vice president of government regulations, ACCA, said the organization felt this significant increase in the duration of records was simply opening the door down an even more burdensome path.
“Our members already keep great records, and there are a ton of minor injuries in this industry — finger and hand injuries occur regularly,” James said. “Forcing employers to keep workplace injury records longer than the IRS requires you to keep them is just too much. The Obama increase shifted the responsibility to the business owner instead of the person who was actually injured.”
Eliminating burdensome regulations for America’s HVACR contractors is one of ACCA’s top organizational priorities.
“If you’re looking to make improvements to increase small business owners’ bottom lines, it’s in regulations,” James said. “It’s saving time and money — whether it’s staff time or having to hire outside experts. These little things add up to big wins for our members.”
The Volks rule would have increased contracting business owners’ costs from an exposure standpoint, as well, James added.
The legislative win sets a precedent among congressional leaders, James said.
“The majority of the men and women in Congress and their staffs have never worked in the trades, so they don’t understand that accidents do happen,” James said. “Nobody wants to have a worker injured, because not only are employees often like family, but that’s where their income stream comes from. ACCA is there on Capitol Hill each day helping these decision-makers understand how these businesses work and what’s involved. Each of these conversations brings us another opportunity to make our case for ACCA’s overarching priority, which is ensuring quality HVACR installations or realized efficiency. This, to me, is an absolute bonus.”
Don Langston, president and CEO of Huntington Beach, California-based Aire Rite Airconditioning & Refrigeration Inc., and current chairman of ACCA, deemed the overturned rule a win for HVAC contractors.
“Any company that cares about its employees is going to try and work within OSHA’s guidelines or exceed them,” he said. “That’s our goal. We’re pretty aggressive getting our technicians and installers up to OSHA’s 30-hour certification. And actually, we exceed OSHA 30 in a lot of our training.”
Aire Rite has a safety committee and training is ongoing. To fulfill that, the company has held two OSHA 30 classes in the last year.
“These are typically eight- to 10-week classes, because we’re doing them in the evening a couple of nights a week,” Langston explained. “We had a class last year, and we had another one this year. We just held a graduation ceremony for a group of 16-17 guys where they brought their families and we barbecued. Our safety program, just like all our training, is ongoing.”
The company also has every employee report all injuries no matter how minor they may seem.
“We’re part of a self-insurance captive,” Langston said. “Within that captive insurance, there are traditional aspects of how injury reporting is done. We also use an outside service called Medcor, so we have a trained nurse on call. Even if it’s a trip and fall, we require employees to let us know about it, so three months later, they don’t go, ‘Oh, I was on a roof, tripped over a drain line, and think I tore my knee.’ We try to make sure we’re recording everything — even things like bumps and scrapes.”
According to Langston, the challenging thing with any government regulation is the intent.
“Why extend something we already have to keep records for?” he asked. “It’s almost like they’re trying to push it off into eternity. Extending it just keeps us on the hook longer for things. I see the repeal as a good thing. I’m kind of a small government kind of guy anyways.”
Steve Saunders, CEO of Tempo Air in Irving, Texas, said his company does everything it can to prevent injuries.
“Work injuries are losers for everybody,” he said. “Workers lose work and money when they’re injured. Injuries are painful, and even minor injuries can build up over time and cause significant deterioration in physical ability as people age.
“What I tell people is construction is a young person’s game, where you end up making money with your body,” Saunders continued. “The goal for a young construction worker is to learn with your mind. As your body starts to age, you have to learn how to make money with your head. A lot of it is learning about HVAC or plumbing, so you can eventually move to service. But, as service techs age, even they can no longer haul compressors or climb ladders into attics, so maybe they become energy raters or supervisors.”
It’s also essential for companies to provide equipment employees will actually utilize.
“We buy the sexy safety glasses, not the nerd safety glasses,” Saunders said. “The sexy ones cost more, but the chances of employees wearing them are better. It’s really a complex problem, but in truth, we put a lot of money and effort into training and equipment.”
Tempo, unlike some contracting businesses, also limits its employees’ hours.
“From one perspective, that can be a financially costly decision,” Saunders explained. “When summer peaks and the weather gets to 100 degrees or more for weeks in a row, you could work 100-110 hours a week every week. We don’t let our people do that. We turn down a lot of work. Some companies keep sending people out. The problem with that is the people who keep going out are tired, make bad decisions, and do poor work, which leads to a lot of callbacks and angry customers. The really bad part is when they’re really tired, they’re susceptible to workplace accidents and driving accidents. After a while, it’s just a little more money, so it’s not worth the risk. So the first thing we do is try to avoid accidents.”
Publication date: 7/3/2017