04/24/2023

MRCA Files Amicus Curiae (Friend of the Court) Brief in Kentucky to Support Two Member Companies Facing Litigation Over Citations From KYOSHA

MRCA - The Roofing Contractor’s Advocate

          Several months ago, MRCA General Counsel Gary Auman was contacted by an attorney representing an MRCA member in Kentucky. The MRCA Board examined the details of this situation between MRCA member companies, other roofing contractors in Kentucky and Kentucky OSHA. The Board quickly  decided to assist our roofing contractor members in Kentucky. Please review the details of this ongoing case  as presented by MRCA General Counsel, Gary Auman. This demonstrates one of many ways the MRCA works as the Roofing Contractor’s Advocate.

          Our member reported that KYOSHA had cited another roofing contractor and MRCA member in Kentucky for an alleged fall protection violation on a low sloped roofing project in Kentucky. The citation was issued under Federal OSHA Standard 1926.501(b)(10), and alleged that the employer had an employee working inside their warning line without wearing a personal fall arrest system (PFAS), using a guardrail system, or a safety net system or having a safety monitor. The KYOSHA compliance officer had observed an employee working inside the warning lines without wearing a personal fall arrest system. The employer’s procedure was to use a warning line system in  conjunction with a personal fall arrest system. The company  required a personal fall arrest system for employees who were working outside the warning lines. The employer argued that the cited standard did not require employees working inside the warning lines to wear a PFAS. An interpretive letter from Federal OSHA interprets the cited standard as permitting warning line systems to protect employees working within its perimeter. Only when workers are required to go outside of the warning lines would a PFAS be needed. KYOSHA has taken the position that since employees within the warning lines were not required to wear a PFAS while working within the warning lines, a safety monitor was required. The cited employer argued that the KYOSHA interpretation of the standard is incorrect and goes against the federal OSHA interpretation as set out in the Ellis letter.

         The cited employer filed a Notice of Contest and a hearing officer in Kentucky vacated the penalty but affirmed the violation. The employer appealed that decision to the Kentucky

Review Commission, which vacated the citation. KYOSHA appealed the decision of the Review Commission into Franklin Circuit Court, Division 1 in Kentucky. When that appeal was filed, counsel for another MRCA member company approached the MRCA to file an Amicus Curiae (Friend of the Court) brief in the case. Not only are the two MRCA member companies concerned by the application of the standard cited to their job sites, they are also concerned with the actions of KYOSHA in unilaterally changing the standard under which roofing contractors perform their work in Kentucky without notice to the public or following the appropriate administrative procedures necessary to change an administrative rule.

         The MRCA Board felt that this was an important issue that affects all MRCA members in the State of Kentucky, and one in which the Association should become involved to support our members. After an extensive amount of briefing, the matter is set for argument before the Circuit Court Judge the first week of May 2023. Though MRCA is not permitted to participate in the oral arguments, its position has been set forth in its Amicus Brief and will be reviewed in conjunction with the briefs of KYOSHA and the involved employer.