2021 in Review: OSHA Compliance

As 2021 comes to a close it is important to reflect on the past year and look forward to what will be coming in 2022. Our 2021 in review series aims to do just that with our most popular guests. Each week we will be reviewing our past predictions for 2021 and what actually happened this year. In addition, we will dive into how you can have a successful 2022!

Our first episode is with Trent Cotney, the CEO of Cotney, Attorneys & Consultants, and the author of OSHA Defense for the Construction Industry. Trent shares what has changed in the Occupational Safety and Health Administration’s (OSHA) regulations for the construction industry, and what practices every contractor needs to act on to protect themselves and their businesses. Also, he will share what to expect from OSHA in 2022.

 

Key Takeaways

  1. The rules are still being established. OSHA was hands-off at the beginning of the pandemic but with new vaccine mandates going through the court system, it’s in your best interest to pay attention and make sure that you are complying with the multitude of changes that have happened in the last year.
  2. OSHA is increasing enforcement. OSHA is gearing up to hire more employees next year, which gives the organization a better handle on enforcement and tracking. If you have anything out of compliance, now is the time to fix the process. 
  3. New silica rules and increased enforcement in 2022. The Silica Standard will be a big change in 2022. With almost everything in construction containing silica, it has the potential to change a number of your processes.

 

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Episode Transcript

Mike Merrill:

Hello, and welcome to the Mobile Workforce Podcast, I am your host, Mike Merrill. And today we are sitting down again with a nice follow-up discussion with our friend Trent Cotney. Trent is the CEO of Cotney Attorneys and Consultants, and also an author of a book called OSHA Defense for the construction industry. So as we wrap up the year, Trent and I are going to cover what changed in this past year and also what we can expect with OSHA regulations going into 2022. So hello Trent, thanks for joining us on the podcast today.

Trent Cotney:

Hey Mike, it’s great to be here. I’m glad we had the opportunity to talk again. I’m looking forward to our conversations today.

Mike Merrill:

Yeah. And it was fun meeting you at the Best of Success out in Dallas area, lots of fun to shake your hand and introduce myself in person.

Trent Cotney:

And I tell you what, that was a great event and it was good seeing you. Had a really good time.

Mike Merrill:

Yeah, it sure was. Love the roofing industry and you’re a great advocate for them so we’re excited to talk about that today.

Trent Cotney:

Great.

Mike Merrill:

So let’s kick off the discussion by talking about what you saw the impact was of the COVID-19 pandemic for OSHA in 2021.

Trent Cotney:

So COVID-19 has been a very interesting time for contractors and other industries as well. And it was interesting, I was just talking to someone else earlier today about how it’s really affected the workforce. And one of the things that you see from a safety perspective is I’m starting to see a lot of sloppiness, I’m starting to see apathy. And I think some of that is caused by COVID-19, with remote work, with other people, just that culture not being as connected as it once was, I’m starting to see more and more mistakes.

Trent Cotney:

So when COVID-19 first happened, there was a lot of push against OSHA saying, “Hey, you guys needed to do something.” And for the most part, they were pretty hands off. Then I was concerned and I think a lot of other people were concerned that they were going to do an emergency temporary standard as it relates to COVID. Well at that time they did one for healthcare, but construction managed to avoid it.

Trent Cotney:

Now, fast forward, we’ve got a whole different set of concerns and that is the Biden administration has put out a variety of different executive orders and agency action related to mandates. In particular there’s one where he is asking OSHA to enforce an emergency temporary standard with regard to vaccine mandates. And what’s interesting about this Mike, is that he has said that what he wants is any employer that has over a hundred employees, they got to either vaccine their employees, or they got to engage in regular testing which is by definition at least once a week.

Trent Cotney:

So with that, a lot of issues have come out, obviously they’re still in the rulemaking process. There will be legal challenges, but it’s been a mess. I’ll be honest with you, it’s been crazy trying to keep up with all the different variations of what we started to see as it relates to vaccines and COVID-19.

Mike Merrill:

Yeah. I can’t imagine that any of us could have predicted things to go the way they have, but what’s most surprising to you after looking back on this last year?

Trent Cotney:

I think what really surprises me is just the how everything has hit it once. It’s made it very difficult for an employer to be an employer. And you think about it from a construction standpoint, you’ve got material shortages, you’ve got these vaccine related issues, keeping people employed and skilled labor is still the biggest threat out there. So it has… I am surprised that we’ve had to tackle as many issues at the same time, usually there is one issue at a time, we’ve had a dozen, it’s been a lot, a lot for everyone to deal with.

Mike Merrill:

Yeah. A lot more than the left right combo. It’s like jab, jab, jab, jab, jab. Right?

Trent Cotney:

Yeah, absolutely. This is the 24 hit combo kind of thing we’re looking at right now.

Mike Merrill:

Wow. Well, I know you just had an update to your book, which we talked about at the beginning of the podcast. What did you update and change in there?

Trent Cotney:

We came out with a couple of different books, one was the latest version of OSHA defense for the construction industry and in that book what we did is we update it throughout. I added another chapter on what the current regulations were or what I anticipated were going to come out. I try to do that. I try to give updates every two years so that the book stays fresh. And then we came out with another book, OSHA Defense: Know Your Rights, which is for general industry.

Trent Cotney:

So if you are non-construction but you’re still curious as to what your rights might be in a manufacturing plan or in a facility or agriculture, whatever it might be, we kind of go through all those different things. So it was great and I always enjoy updating those books because it gives me an opportunity to learn some more and I’m always, always learning.

Mike Merrill:

Yeah, I love that and I appreciate that. We actually, we’ve given quite a few of those books away and I know people have been very appreciative and said that they would find them certainly useful for some of the things that they’re facing today.

Trent Cotney:

Great. Glad to hear that.

Mike Merrill:

Tell us this, if you could share with the listeners, what do you expect 2022 to look like? I know obviously, you know I’m a crystal ball and nobody really knows, but based on the tea leaves that you’re seeing today, what should we be getting ready for or be expecting on some level?

Trent Cotney:

Sure. So lot of different things that are causing me concern, sticking with the OSHA theme. One of the things that I know is going to come out here shortly is heat illness and injury standard. There were a couple of recent press releases that came out from OSHA, one was on September 9th, the other was on September 20th that talked about the fact that they were going to create a national emphasis program on heat injury and illness. And this is what I think our listeners should really understand is that what they are going to do is target any job site or any facility where the heat index is greater than 80 degrees.

Trent Cotney:

Now I’m speaking to you here in Florida, 80 degrees is a nice winter day for us. So what that means is it basically gives OSHA the opportunity to step on any job site without those prior type of justifications that they need. They can simply go on there and say, “Hey, are you feeling hydrated? You got enough water.” And then while they’re out there, they can say, “Oh, I see four guys on a roof without fall protection.”

Trent Cotney:

So I have a lot of concerns about that, what’s going to happen is in depth rule making that will happen probably in the beginning of 2022. I also anticipate that whatever this final rule will be on this emergency temporary standard for COVID and the enforcement of vaccines will be out shortly, probably this year with a ton of different legal challenges that will probably prevent its enforcement until whatever is leftover until 2022.

Trent Cotney:

So those are the two biggest things that I see on the hor izon. The other thing is, is I know that a portion of the silica standard, they were going to add some additional information there as far as what ways to help limit it. Some other alternative ways to do it, to make it a little easier. I also anticipate that we’ll see that in 2022, I’m primarily concerned about more enforcement though, because I think you’re going to see more hiring for OSHA, more enforcement and more citations.

Mike Merrill:

Wow. So for those that don’t know, what is the Silica standard that you’re talking about or what could you explain about that?

Trent Cotney:

Sure. So the Silica standard, it applies to anybody that’s cutting… Anything that’s got Silica in it. It’s mortar concrete, clay tile, anything that potentially has silica in it. And to justify the alleged concern is that if you inhale silica, that it could cause what’s known as silicosis, and it’s an illness that is, could potentially be fatal. So OSHA probably five or six years ago came out with the silica standard, which is incredibly difficult to understand, very difficult to enforce as well. And one of the things that they’re trying to do is really stream line it, so they could probably enforce it a little bit better.

Trent Cotney:

It affects most of construction really, because if you think about what you’re doing, more than likely you’re mixing something that’s got concrete or mortar or clay or something that potentially has silica in it. So it caught a lot of people off guard five, six years ago. And this is, is sort of an opportunity to make it a little bit easier I think for OSHA to ultimately cite people, hopefully there will be some good stuff in there as well for contractors.

Mike Merrill:

Yeah. There’s like you say one, two punch, it just seems like there’s always something coming. So it’s good that we have industry experts like yourself to help us keep this stuff on our radar and keep aware so we’re in compliance and especially don’t get hit with a roundhouse that we never saw coming.

Trent Cotney:

Mm-hmm (affirmative). Absolutely.

Mike Merrill:

So tell me this, is there anything positive that you’re excited about for 2022?

Trent Cotney:

Yeah, I had the pleasure of being one of the speakers at the National Safety Conference and Expo. And I was one of the few lawyers that was present and had a real opportunity to talk to safety professionals all over the US and beyond. It’s a giant show, I think next to the world of concrete is probably the biggest show out there. So during those conversations I had a lot of interesting comments made about the emergence of technology and the use of technology to really help safety.

Trent Cotney:

So I’ll give you a real-world example, probably three weeks ago, maybe four weeks ago, I was invited out to one of my client’s job sites in Orlando, Central Florida. And they’re currently using one of the robot dogs to not only act as security but also to do safety i nspections. So this is a way where the safety director can sit at his or her laptop or back in the home office, use something else to actively monitor safety and make changes in the field if necessary through microphones and communication.

Trent Cotney:

But you can see where automation and a lot of this stuff is going to come into play to reduce potential hazards. And that excites me, I’m always looking at what the future holds, I think AR and VR is going to be really important for safety training moving forward. So I think, yes, while I think OSHA’s going to enforce more and site more, I do think there’s a lot of opportunity for all industries to really embrace the technology that’s out there and figure out better ways to keep our employees safe.

Mike Merrill:

Yeah. I like that. So at the safety conference, did they do sort of a presentation or a demonstration of that dog and how was that used?

Trent Cotney:

Yeah, not at that conference. I didn’t see it there. I saw it in person when I went out to this job site and they’re not cheap, by now the cost is around $75,000 stock. And then if you add stuff on it, there’s more on it. So you have to really get some use out of it. The thing that a lot of people need to understand is if you factor in what the cost of having somebody on site to do that over time and this person, the dog doesn’t get… You got to charge your batteries, but you don’t have to worry about the dog getting hurt. You don’t have to worry about the dog complain, it’s just going to do what it’s got to do.

Trent Cotney:

So that’s one of the things I think is really cool is being able to integrate a lot of different functions in one piece of automation. Some interesting things I did see out there was use of nanotechnology and clothing using gold filaments and other things to help reinforce a lot of the work clothing that people are using. A lot of use of sensors and other things within hard hats, helmets, and other things to monitor things like heat stress, other health conditions, all that kind of stuff, using safety best that also have that type of monitoring in it. Really incredible equipment that people are coming out with.

Trent Cotney:

And I think a lot of this is coming at a necessity. Right now one of the biggest issues that we have is lack of skilled labor in almost every industry, anytime that you’ve got a gap between supply and demand technology usually fills that. So that’s why I think machines, AI, AR, VR, all these types of things are ultimately going to decrease what our labor burden needs to be to produce and provide the services that we’re currently providing.

Mike Merrill:

Yeah. Great point. And even to you point, the robotic dog can’t get COVID either, right?

Trent Cotney:

Yeah, exactly. So I was trying to convince everybody that we need a one around here, but I haven’t got anybody to sign off on that yet. Price is too steep.

Mike Merrill:

72 months of payment, zero interest.

Trent Cotney:

Yeah, exactly.

Mike Merrill:

You’d rather buy the new Tesla.

Trent Cotney:

Right.

Mike Merrill:

Well, lots of exciting things, technologically speaking and I’m glad you’re bringing up those types of things as it relates to safety, because I’m a big advocate of trying to leverage technology and construction. I think we are doing a better job of that more recently, but there’s still a lot of work to be done. And you being an attorney that feels nice to hear you talking about that kind of proactive and more playing defense in advance as opposed to trying to go back and repair and fix something that went wrong.

Trent Cotney:

Yeah, absolutely. I think one of the big things in construction is just like lawyers and accountants and insurance. It’s very slow to evolve and change, but I think we’re at sort of a tipping point where we have to embrace technology. Otherwise there’s going to be an outside disruptor that comes in and does it for us. And I’d much rather be the tip of the spear than have the spear pointed at me.

Mike Merrill:

Great analogy. Well, it’s been a lot of fun again, I’ve appreciated having you on, I appreciate you talking about those things that we need to be heads up on as it relates to legislation. I think the reminder on the safety is also great. If there was one thing that you want the listeners to take away from this refresher discussion we’re having now, what would that be?

Trent Cotney:

I think it would be that the key thing that OSHA or for that matter a lot of the different regulatory agencies are looking for is to make sure that policies and procedures are drilled down from the top to the bottom. So management and a lot of the people that may be listening, they’re not necessarily the issue. It’s people that are out in the field, right? It’s very important to maintain that culture of safety. And the best way to do that, even in COVID times is a combination of virtual and the occasional hands-on training. You’ve got to still have that face to face communication to a certain extent obviously following CDC guidelines, but I’m a big believer in getting in front of somebody, showing somebody how to be safe and drilling it into them.

Trent Cotney:

The other thing I would say is invest in your workers. It is so easy to get credentials like an OSHA 10 or an OSHA 30… You don’t have to sit for 10 or 30 hours to do it. You can go online and do it, there are a lot of other ways to do it. I’ve got to… If I can get an OSHA 10 or an OSHA 30, anybody can do it. So always a big believer in investing in your employees, even if they end up leaving you, they’re better trained and they’re going to elevate the industry as a whole so that’s kind of how I look at it.

Mike Merrill:

Yeah. What a great attitude and I appreciate the spirit and the vigor that you continue to have with the industry. Again, I got to see you at Best of Success and what you interact with the customers and the companies. And you obviously have a great relationship with many of these companies and they have a lot of trust in what you’re doing. So thank you for what you’re doing for the industry, we appreciate it. Really look forward to catching up again down the road on another update.

Trent Cotney:

Yeah, I would love to. Anytime.

Mike Merrill:

Sounds great. Thanks again, Trent.

Trent Cotney:

Thank you.