AGC Response to Sixth Circuit Stay Dissolution

Source: Claiborne S. Guy, director, employment policy & practices, AGC of America

On Friday, December 17, the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the OSHA Vaccination and Testing Emergency Temporary Standard (ETS). This decision allows OSHA to proceed with implementation and enforcement of the rule issued on November 5, 2021. AGC is a party to the proceedings in the Sixth Circuit, having filed its own petition for petition for review, and is actively engaged in a review of its legal options moving forward. AGC will continue to keep its chapters and members updated on any future developments.

To account for any uncertainty created by the Fifth Circuit’s stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10, 2022, and will not issue citations for noncompliance with the standard’s testing requirements before February 9, 2022, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.

In an effort to assist members with increasing the vaccination rates among their workforce and to comply with the ETS requirements, AGC created a vaccine tool kit webpage which contains a construction oriented summary of the ETS detailing employers compliance options and obligations as well as additional resources. If you have any questions, or for more information, please contact Kevin Cannon at or Nazia Shah at


According to OSHA, of the 4,779 worker fatalities in private industry in calendar year 2018, 1,008 or 21.1% were in construction — that is, one in five worker deaths were in construction. The leading causes of private sector worker deaths in the construction industry were falls, followed by struck by object, electrocution and caught-in/between. These “Fatal Four” were responsible for more than half (58.6%) the construction worker deaths in 2018.

Fall fatalities – 33.5%
Struck-by object fatalities – 11.1%
Electrocution fatalities – 8.5%
Caught-in/between fatalities – 5.5%


  • Correctly install and use personal fall arrest equipment.
  • Install and maintain guard rails and perimeter protection.
  • Cover and secure floor openings and label floor opening covers.
  • Inspect and use ladders and scaffolds correctly.


  • Do not place yourself between moving equipment and fixed objects.
  • Wear and maintain high-visibility clothes.
  • Use tag lines when moving suspended loads.
  • Inspect and use powered equipment correctly.
  • Use proper rigging techniques.


  • Properly slope or implement trench protection for excavations five feet or deeper.
  • Ensure guards are in place and in good condition on powered tools and equipment.


  • Locate and identify utilities before starting work.
  • Look for overhead power lines when operating any equipment.
  • Maintain minimum approach distance from power lines.
  • Use GFCI on all portable electric tools.
  • Be alert to electrical hazards when working with ladders, scaffolds or other platforms.

Download a printable PDF and recording form here.

Members can download the audio version of this toolbox talk here.


According to OSHA, trenching is a leading jobsite hazard, which causes an average of 54 fatalities each year. The following are OSHA’s common trenching and excavation safety standards to help protect yourself and your crew during excavation work activity.

  • Locate and daylight/pothole buried utilities prior to excavation.
  • Trench excavations that are five feet deep or greater are required to have sloping, benching, shielding (trench box) or shoring unless the excavation is made entirely in stable rock.
  • A competent person* may determine that a protective system isn’t required for trench excavations less than five feet deep.
  • A competent person must inspect the excavation and classify the soil type. The classification is based on the results of at least one visual and one manual analysis.
    • Solid Rock
    • Type A Slope ¾ to 1 (53º)
    • Type B Slope 1 to 1 (45º)
    • Type C Slope 1 ½ to 1 (34º)
  • The atmosphere must be tested before entry in trench excavations four feet in depth or greater before entry if the potential for oxygen deficiency or a hazardous atmosphere exists or could reasonably be expected to exist.
  • A ladder or other means of egress must be accessible within 25 feet of the worker’s activity for excavations four feet in depth or greater.
  • Excavated materials and equipment must be kept a minimum of two feet from the edge of excavations.
  • Excavated material must be sloped to prevent the material from re-entering the excavation.
  • A competent person must inspect excavations, protective systems and the area around the excavation daily prior to the start of work and as needed throughout the shift. They should document the inspections.
  • Employees are not to work in excavations where there is accumulated water or where water is accumulating. A pump(s) must be in place to remove accumulating water.

*A competent person is an individual who is capable of identifying existing and predictable hazards or working conditions that are hazardous, unsanitary or dangerous to workers, soil types and protective systems required, and who is authorized to take prompt corrective measures to eliminate these hazards and conditions.

Download a printable PDF and recording form here.

Members can download the audio version of this toolbox talk here.


OSHA has included electrocutions as part of the Focus Four Hazards for construction because of the persistence and significance of this hazard. The Focus Four Hazards represent the causes of nearly 60% of all construction fatalities each year.

Electrocution caused by contact with energized power lines is a significant cause of fatalities in construction. Some examples of equipment that could contact power lines are cranes, pile drivers, guardrail drilling rigs, backhoes, excavators, front-end loaders, trenching machines, dump trucks and concrete pumping trucks.

Keep in mind on every construction project:

  • Survey the site, identify overhead power lines and post DANGER signs and visible barriers at all potentially dangerous locations.
  • Maintain at least 10 feet of clearance between equipment and power lines energized with less than 50,000 volts. For power lines carrying more energy, increase the distance by one foot for every 30,000 volts.
  • If you must operate equipment close to the power line, use a spotter to identify when you’re nearing the minimum approach distance limit.
  • Before beginning paving or any other road work activity, survey the area for any power lines that cross over the roadway, post DANGER signage notifying dump truck drivers to lower their beds before traveling under overhead power lines and bridges.
  • If you must work close to a power line, consider calling the responsible utility to have the line protected during the operation.
  • Before beginning ANY work activity in which you will penetrate the ground, call Indiana Underground Plant Protection Services (Indiana 811) at 811 or 800-382-5544 at least two full working days before you begin the work activity and have them locate the underground utilities. Do not begin work until this has been done.
  • Once the locate service has marked the location of the buried utility, pothole/daylight to positively identify and expose the buried utility.
  • Maintain a clearance of not less than two feet around the diameter of the buried utility with all mechanized equipment.
  • Protect all underground utility markers from damage and replace them as needed.
  • Situate jobsite unloading and storage areas in open areas away from overhead power lines.

Download a printable PDF and recording form here.

Members can download the audio version of this toolbox talk here.

New Silica FAQs for the Construction Industry

Source: AGC of America Senior Director, Safety and Health Services Kevin Cannon, CSP (703) 837-5410

The Occupational Safety and Health Administration (OSHA) has just released a set of 53 Frequently Asked Questions (FAQs) to provide guidance to employers and employees regarding OSHA’s respirable crystalline silica standard for construction.  Through the Construction Industry Safety Coalition (CISC), the Associated General Contractors of America (AGC) was heavily involved in the formulation of these FAQs.  The development of the FAQs stemmed from litigation filed against OSHA by numerous construction industry trade associations – including AGC – challenging the legality of OSHA’s rule.  OSHA has also agreed to issue a Request for Information (RFI) on Table 1 to revise the Table to improve its utility.  AGC will continue to look for ways to work with OSHA to improve the workability of this significant rule.

The FAQs are extensive and organized by topic.  A short introductory paragraph is included for each group of questions and answers to provide background information about the underlying regulatory requirements.  A  four-page document with some of the clarifications and a PDF version of all the FAQs has also been created.  AGC encourages its members to review all of the FAQs to assist in their compliance efforts. If you have any questions, please contact Kevin Cannon at (703)837-5410 or You can also contact Nazia Shah at (703)837-5409 or

OSHA Announces 30-Day Enforcement Policy for the Silica Standard in Construction

Source: AGC of America

Administrators announcing how the Agency will handle enforcement of the new silica standard for the construction industry, which takes effect on September 23, 2017.

The memorandum states that during the first 30 days of enforcement OSHA will not issue citations to contractors who are putting forth good faith efforts in their attempt to comply with the requirements of the new standard. For those contractors attempting to comply, OSHA will offer compliance assistance and outreach with a focus on full and proper implementation of the controls listed in Table 1. However, if during an inspection it appears that a contractor is not making any effort to comply with the requirements of the silica standard, OSHA’s inspection will include air monitoring for exposures and the contractors may also be considered for citations. During this time period, any proposed citations are required to be reviewed by the National Office.

The memorandum also notes that OSHA has developed interim inspection and citation guidance to be released prior to the termination of the memorandum and that a compliance directive will be issued at a later date. AGC encourages contractors who have operations in State Plans and are covered by the silica standard, to contact their Administrators to find out if the September 20 memorandum will be acknowledged.

For more information, please contact Kevin Cannon at (703)837-5410 or