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NRCA letter to Vice President-elect Michael Pence

Jan. 12, 2017

The Honorable Michael R. Pence
Vice President-elect of the United States
1717 Pennsylvania Avenue, NW
Washington, DC 20006

Dear Mr. Vice President-elect:

The National Roofing Contractors Association congratulates you on your election and, on behalf of our members, we look forward to working with you on government policies which enable entrepreneurs to successfully start and grow businesses in the roofing industry.

Established in 1886, NRCA is one of the nation's oldest trade associations and the voice of professional roofing contractors worldwide. NRCA has approximately 3,500 contractors in all 50 states who are typically small, privately held companies, with the average member employing 45 people and attaining sales of about $4.5 million per year.

The roofing industry has faced an avalanche of new regulations from federal agencies over the past eight years, most notably from the Occupational Safety and Health Administration (OSHA). The cumulative burden of often counter-productive regulations is highly disruptive to employers trying to grow their businesses and create high quality jobs. In general, federal agencies have failed to work with industry representatives in order to provide greater flexibility for employers in achieving regulatory goals while minimizing adverse impacts on economic growth and job creation. Most disturbingly, NRCA believes that regulations issued by OSHA may actually increase safety hazards for roofing industry workers.

NRCA looks forward to working with you, other officials in the incoming Trump administration and Congress to repeal and/or modify existing regulations, and any that may be issued before the end of the Obama administration, that prove to be burdensome to our members. Whether it is through the Congressional Review Act process or other legislative and regulatory avenues, we believe there is much that can be accomplished in reducing burdensome regulations on businesses. Below is an overview of NRCA's regulatory priorities for 2017, and we would be pleased to provide additional information as necessary.

OSHA Silica Regulation

NRCA opposed OSHA's regulation regarding chrystalline silica, and provided detailed comments to the agency outlining the numerous concerns of our members. First and foremost, we believe this regulation will significantly increase safety hazards for roofing workers as well as add significant new compliance costs for contactors.

OSHA's silica regulation dramatically reduces the permissible exposure level (PEL) for silica in construction workplaces to 50 micrograms per cubic meter (from the current 250) and would establish an action level of 25 micrograms per cubic meter. To meet these much lower levels, new engineering controls and other measures would become necessary. The new requirements will cause great uncertainty for contractors who will be responsible for ensuring implementation on worksites. Newly required equipment, training and air monitoring costs will likely add $1,000 or more to an average residential roofing job.

NRCA is most concerned the new requirements will increase the risk of falls for roofing workers. In order to comply with the new regulation, workers in many cases will have to use wet saws or saws with vacuum attachments on the rooftop, thus introducing new hazards such as slipping on wet surfaces and tripping on hoses. Introducing new fall hazards on roofing worksites is dangerous, and sometimes fatal, for roofing workers, and NRCA had urged OSHA to address this concern, but the agency failed to do so.

In addition to concerns over increased fall hazards, NRCA questions whether compliance with the regulation is technologically feasible. For example, most commercial laboratories are not capable of measuring workplace silica levels with accuracy or consistency, making it nearly impossible for employers to determine if they would be in compliance. Also, OSHA has seriously underestimated the costs of compliance for roofing contractors in its estimate of economic impacts from the new regulation. Finally, NRCA is not aware of any insurance claims due to silicosis from within our industry over the past several decades that would justify regulatory controls that will clearly increase fall hazards.

Given our members' concerns, NRCA urged OSHA to exempt the roofing industry from the final regulation and invited agency officials to partner with us to broaden efforts to reduce the already minimal exposure to silica dust without increasing fall hazards for roofing workers. We look forward to working with Congress and the Trump administration to address these concerns by requiring OSHA to conduct further analysis of these issues before implementing the regulation. We would suggest that Congress or the Administration immediately delay the June, 2017 implementation date for the silica rule for the construction industry for one year to allow more time for the regulation to be repealed or modified to fully address our members' concerns.

OSHA Recordkeeping Regulation

NRCA opposed OSHA's new regulation, issued in May, 2016, to require employers to submit injury and illness records to the agency for posting on the Internet for public dissemination. Again, NRCA submitted extensive comments to the agency outlining our members' concerns when the regulation was initially proposed, but the agency largely failed to address the issues raised. NRCA member Lisa Sprick of Sprick Roofing, Corvalis, OR, testified before the House Workforce Protections Subcommittee in May 2016, further outlining NRCA member concerns with this regulation.

As the agency's basic rationale for this regulation, OSHA states that posting injury and illness records online will provide employees and others with information that will enhance workplace safety. However, the data as included in the reports lack meaningful context, which is critical to understanding the information properly. Without context it is unclear how the information being made public will improve workplace safety. Also, misuse of the information by third parties could cause significant harm to employers and employees. Another concern is the possible inadvertent public disclosure of private employee information and the harm this could cause to workers.

It is also unclear what impact this rule may have on employee incentive programs designed to promote workplace safety. NRCA agrees with OSHA's intent to ensure that employees must not be deterred from reporting injuries, and we recommend that employer safety programs provide incentives for employees to follow all rules that meet or exceed OSHA standards. But this regulation and other OSHA actions have produced much ambiguity with respect to how OSHA views incentive programs, especially mandatory post-accident drug and alcohol testing policies. The expanded authority in this regulation may remove a key tool that employers use to ensure a safe workplace.

Another concern with the new regulation is adding unnecessary costs, which is always a challenge for small businesses that often operate on thin margins. This is especially true when responsible employers that comply with, and often exceed, government regulations are competing against contractors who may not always be within compliance of laws and regulations. NRCA is concerned that adding new reporting burdens that promise unspecified benefits merely diverts valuable resources from proven risk management strategies that truly protect workers. We urge Congress and the new administration to review this problematic regulation and work with our industry and other stakeholders to repeal or modify it.

OSHA Fall Protection Directive

Another serious concern that NRCA believes must be addressed is OSHA's misguided fall protection directive issued over our strong objectives. In 2011, the agency began implementing changes to fall protection regulations for residential construction that had been in place since 1995. NRCA opposed this unilateral regulatory action because it creates new safety hazards for roofing industry workers.

OSHA's directive essentially eliminated the option of using "slide guards" (brackets installed along the roof's slope) on moderately-sloped roofs in certain "residential construction" projects. Slide guards have been a widely used, effective means of fall protection within the roofing industry for decades. Employers are now limited to using safety nets, guardrails or personal fall-arrest systems (PFAs) in nearly all types of residential roofing. While exceptions can be made if an employer can demonstrate these options are infeasible or present a greater hazard, the exemption process is extremely impractical and cumbersome, especially for small businesses.

NRCA was extremely disappointed the agency moved forward with this regulatory action without addressing the serious safety concerns of roofing contractors. The directive effectively eliminates an effective fall protection method widely used in the industry and can create new safety hazards in many instances for workers. OSHA presented no evidence on which to base claims that its directive will improve workplace safety or that slide guards are not an effective means of fall protection. Moreover, the statistical data from states that provide more flexibility in the use of slide guards indicate that these states have a superior record in preventing falls when compared to similar states that operate under federal OSHA rules. Of further concern is OSHA's efforts to impose federal fall protection rules on states that allow greater flexibility in their regulations, despite the fact that these states have better safety records than states operating under the federal rules.

NRCA believes that slide guards are the most effective form of fall protection in many situations and should remain an option for contractors in certain circumstances. We recommend that Congress and the new administration review this matter and consider adopting rules in place in several states that allow greater flexibility in choosing the fall protection options that best protects workers. NRCA believes it is vital that employers, workers, government officials and other stakeholders work together to craft effective safety policies based on sound risk management principles and reliable data.

DOL Overtime Regulation

NRCA appreciates President-elect Trump's comments about the harmful effects the updated overtime rule will have on businesses if implemented. NRCA members were relieved that a federal judge issued a nationwide injunction on the rule on November 22, 2016. The new rule, if implemented, would more than double the current salary threshold of workers who are eligible for overtime, while also mandating the threshold be updated every three years and tied to the 40th percentile of full-time salaried workers in the lowest-wage region of the U.S. NRCA is greatly concerned about the increased compliance, administrative and labor costs this rule will have on our members. Since the rule is structured around an employee's hours worked on a weekly (not monthly) basis, overtime payments could greatly fluctuate given the inconsistent and seasonal work schedule of the roofing industry.

NRCA does not oppose any increase in the wage threshold, but more than doubling it is too much for our members to absorb with such a short time to comply. NRCA does support bipartisan legislation to phase in the proposed threshold over an extended period of time. However, we believe the methodology the Department of Labor used to reach the threshold in the final regulation is inconsistent with previous increases and should be reevaluated. Should the DOL withdraw and issue a new proposed rule we believe a more realistic wage threshold should be proposed, no changes to the duties test be made, and no automatic increases be included. NRCA looks forward to working with Congress and the Trump Administration on updating the rules for overtime compensation under the Fair Labor Standards Act that are not burdensome for employers.

Fair Play and Safe Workplaces Regulation

NRCA strongly opposed the Department of Labor's final regulation to implement President Obama's "Fair Pay and Safe Workplaces" Executive Order, which contains new requirements for contractors bidding on federal contracts. The final rule, also known as the "blacklisting" regulation, will impose new obligations on many government contractors. Companies bidding on qualifying contracts will need to disclose any violations of 14 federal labor laws (and some state law equivalents) that occurred within the past three years, including violations of safety and health rules, collective bargaining, family and medical leave rules and civil rights protections. New federal compliance officers will determine whether such violations will disqualify the contractor from receiving the contract. Contractors and subcontractors will be required to disclose such violations every six months.

The regulation and Executive Order on which it is based is intended to "crack down on federal contractors who put workers' safety and hard-earned pay at risk." While this certainly is a laudable goal, NRCA is deeply concerned that the new regulation will likely increase costs and provide new risks for employers involved in federal contracting, while doing little if anything to make workplaces safer or increase worker compensation. The proposed regulation will impose multiple new obligations on government contractors and subcontractors providing goods and services to the federal government. Many of the new requirements are unprecedented in scope and thus could have substantial consequences for employers. NRCA is pleased that a federal court in Texas has blocked most of the rule from taking effect pending further review by the court.

NRCA believes the proposed regulation goes beyond the executive branch's authority and if implemented would prove to be counterproductive in making workplaces safer or increasing worker pay. As such, NRCA urges Congress and the new administration to work cooperatively to repeal this regulation and the underlying Executive Order.

DOL Paid Sick Leave Regulation

NRCA filed detailed comments opposing the Department of Labor's rule to implement President Obama's Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors. There are a number of issues within the rule that will make it substantially more difficult for roofing contractors to bid on federal contracts and carry them out. Some NRCA members even said they would consider not bidding at all on federal contracts due to the increased costs associated with the rule. Roofing contractors will have to greatly increase record keeping processes in order to comply with the rule, making sure employee hours are accurately accounted as covered or non-covered contracts. In addition, they will have to track and approve when employees are allowed to used accrued paid sick leave.

NRCA members are greatly concerned with the added costs associated with implementing mandated paid sick leave benefits to employees. These highly variable costs must be factored into the bids submitted for any federal contract and will add further to the already high degree of uncertainty to the bidding process. NRCA urges Congress and the new administration to work cooperatively to provide immediately relief to roofing contractors by repealing this regulation and the underlying Executive Order.

NRCA greatly appreciates your consideration in working to repeal or modify regulations in order to address the concerns of the roofing industry. We look forward to working with you to implement policies which improve workplace safety while giving entrepreneurs the flexibility to grow their businesses and create high-paying jobs. If you have any questions or need more information on this issue, please contact NRCA's Washington, DC, office at 202-546-7584.


Dennis Conway
Commercial Roofers Inc., Las Vegas, NV
Chairman of the Board, NRCA

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