Mid Atlantic Real Estate Journal — Owners, Developers & Managers — May 31 - June 13, 2013 — 25A C onstruction L aw


he Oc cupat i ona l Safety and Health A dm i n i s t r a t i o n By Douglas E. Solomon, Esq. and Douglas J. Klein, Esq., Genova Burns Giantomasi Webster LCC OSHA to revisit construction industry crane operator certification requirements T nition of what constitutes a “qualified” crane opera- tor because in some cases

ployers, OSHA has said it will consider addressing em- ployers’ concerns through a separate rulemaking. OSHA will propose to extend the November 10, 2014 com- pliance date so that the qualification/certification requirement deadline does not pass during potential rulemaking. With last year’s presiden- tial election behind us and President Obama in office for another term, construc- tion industry employers should expect an aggressive

regulatory agenda and an uptick in enforcement initia- tives from OSHA, including more citations and increased penalties. This is particular- ly noteworthy for construc- tion industry employers because three of OSHA’s top 10 most frequently cited vio- lations are specifically tied to the construction industry — scaffolding, fall protection and ladders The hope is that the pro- posed three year extension for compliance with the Rule’s crane operator quali-

fication standard is an indi- cation that OSHA is willing to work with construction industry employers to en- sure crane operator regula- tions meet the realities of the jobsite. Douglas E. Solomon, Par tner at Genova Burns Giantomasi Web- ster LCC and Director of the firm’s OSHAPrac- tice Group. Douglas J. Klein is an associate in the OSHA Practice Group. n

( “OSHA ” ) announced that it will propose a three year extension of the compli- ance dead- line for its c rane op - erator cer- tification requirement to November 10, 2017. The proposed extension comes in response to an outcry from construction industry employers about perceived ambiguity and arbitrariness of OSHA’s Crane and Derricks in Con- struction Final Rule (the “Rule”) which took effect November 8, 2010. The Rule applies to power operated equipment such as cranes that can low- er, hoist and horizontally move a suspended load of over 2,000 pounds. It requires crane operators on construction sites to satisfy one of four qualifi- cation/certification options by November 10, 2014: (1) certification from an accredited crane operator testing organization, (2) qualification by an ap- proved auditor employer program, (3) qualification by the U.S. military, or (4) licensing from a govern- ment entity. The Rule also sets forth compliance re- quirements where state or local crane operator rules are in effect. Since 2010, construction industry employers have raised concerns over the certification requirements. For example, the Rule pro- vides that operators are allowed to run cranes with capacities below that for which they are certified, but operators are prohib- ited from running cranes with higher capabilities. Construction industry employers argue that op- erating cranes of different capacities does not neces- sarily require a signifi- cantly different, testable skillset. Some construction industry employers also disagree with OSHA’s defi-

an opera- tor may not actually be capable of properly op- erating cer- tain cranes d e s p i t e sat isfying O S H A ’ s “qualifica-

Douglas Solomon Douglas J. Klein

tions” to do so.

In light of pushback from construction industry em-

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