Author: Costas Cyprus

Construction companies that maintain in-house first aid responders who would conduct clean-up operations following an accident must be properly trained and the company must have the proper control plans in place. The recent decision in Secretary of Labor v. Denaka Partners, LP arose from a workplace accident in which an employee unfortunately had his arm amputated. This decision shows how employees who are designated as first aid responders that respond in the event of administering first aid or conduct cleanup of blood from equipment must not only undergo proper training but also need to be timely offered any applicable vaccines (which the employee can decline at their choosing). A written bloodborne pathogens control plan specific to both the company and its worksite should be maintained containing certain mandated information.

Denaka Partners LP (“Denaka”) manufactures specialized mechanical and industrial rubber products, in small volumes. Typically, Denaka receives a design order and begins the process of mixing and compounding rubber and then uses mills and machines to create a finished product. It employs approximately 35 employees. On December 18, 2020, an employee, S.H., was adjusting a blade depth on a specialized mill when he lost his balance and his shirt sleeve was caught, pulling his left arm in the mill, resulting in an amputation. S.H.’s arm and hand were lodged in the roll of product, which had to be cut away to remove them. As they awaited EMS services, Denaka employees, M.L. and P.R., retrieved trash bags while Denaka’s President, Richard Balka, retrieved bleach and they then used rags and bleach to clean up the accident area. They then disposed of the rags and their gloves, as well as S.H.’s torn clothing. Denaka had previously utilized a third-party, Capital Health, to train some employees on bloodborne pathogens, as well as CPR and first aid, and also used American Heart Association student workbooks as part of their training program. They also trained their employees on first aid and CPR in 2017, and which included the use of PPE, handwashing, and notification procedures following an accident, although the training was not site specific. Mr. Balka testified during the trial that that they did not have a designated team to actually clean-up blood, and further they had not offered the Hepatitis B vaccination to employees who had completed their bloodborne pathogen training or to their designated first responders prior to this accident (but did so after this accident). They also did not have declination forms (as to the vaccine) on file. Denaka’s Controller, Stacey Hepner in emails sent to OSHA during their investigation indicated that their first responders, included Mr. Balka and M.L. and how Denaka did not have a written program for bloodborne pathogens, which was further confirmed by Mr. Balka in his testimony. However, Denaka following a 2016 inspection had provided OSHA with a bloodborne pathogens policy containing portions of a National Safety Council workbook as proof of abatement.

Following an investigation by OSHA as to the 2020 accident, multiple citations were issued to Denaka but for the purposes of this article, the citation items pertaining to the Hepatitis B Vaccination and Improper Training are discussed.

Under the relevant OSHA standard, employers are to offer the Hepatitis B vaccine to employees within 10 days of initial assignment, such as after having received required bloodborne pathogen training, and to all employees who have occupational exposure, such as after a workplace incident. Occupational exposure is defined as “reasonably anticipated skin, eye, mucous membrane… with blood or other potentially infectious materials that may result from the performance.” The Secretary (of Labor) argued that this safety standard applied since Denaka had trained employees as first aid responders, including, M.L., as early as 2017, and that M.L. had responded to and cleaned-up blood following the 2020 accident. Denaka argued that although it had trained some employees in first aid and bloodborne pathogens, it did not have a set of designated first aid responders. However, the Court found Denaka’s argument unavailing in light of its work with machines and knives, and given its prior accidents, Denaka could reasonably anticipate that designated first aid responders would respond to an incident and they would have occupational exposure to blood resulting from their first aid and cleanup duties. Designated first aid providers might be exposed to bloodborne pathogens in rendering assistance to an injured co-worker and especially when it is reasonably foreseeable the type of injury that would cause bleeding. Basically, if it is reasonably anticipated that an employee will come into contact with blood during their work duties, this standard applies, and the vaccination must be offered within 10 days following employee training, regardless of an exposure event. Consequently, this Citation was properly proven against Denaka.

OSHA also cited Denaka for failing to ensure that each employee with occupational exposure participated in a training program, and for not providing the minimum required elements under the applicable safety standards for employees assigned to conduct cleanup operations after an incident involving blood or other potentially infectious materials. According to OSHA’s safety standards, such training must be provided at no cost to employees during work hours and the employer must ensure employee participation. The training must contain the text of the safety standard, an explanation of the employer’s control plan and where employees can obtain a written copy of same, an explanation of methods to recognize tasks that involve exposure, reporting requirements following an exposure event, vaccine information, and procedures for responding to an exposure incident, including what types of PPE to use and where to find them, etc. The exposure plan in fact must contain fourteen enumerated minimum requirements and training must be offered at least annually. Although Denaka had offered some training, the Court found it to be inadequate, and not compliant with the standard, which required an explanation of its exposure control plan and a written control plan that was facility and company specific. Denaka had been previously cited for a violation of the same standard following a 2016 accident, and the Court had previously found that “Mr. Balka knew a bloodborne pathogen policy and training were needed but did not ensure the policy and training were developed and implemented.” Although training was subsequently undertaken, it was still deficient, and so this item of the Citation was also proven against the company.

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The use of potentially hazardous and dangerous substances such as propane, propylene and compressed oxygen, which are common in the construction industry, need to be handled and used with proper care to avoid work-place accidents. The decision in Secretary of Labor v. First Marine arises from an unfortunate accident shows how employers must ensure that their employees are trained to perform their required duties safely when operating in confined or enclosed spaces when using these hazardous substances.

First Marine, LLC (“First Marine”) owns and operates a shipyard in Calvert City, Kentucky. It had been operating for a month to repair and rebuild a river towboat when an explosion occurred on January 19, 2018, tragically killing three employees. At the time of the accident, the towboat was moored in the Tennessee River. Some of the boat’s doorways and windows were open but because workers were engaging in repairs (during the Winter months), these openings were covered with plastic tarps and welder’s blankets to retain heat and prevent wind incursion in the upper engine room located on the boat’s main deck. Diesel heaters were also being utilized to warm the workers and a propane heater was used in the lower engine room, at the boat’s lower deck. Shipyard operations were overseen by First Marine’s superintendent, Mr. Ronald Thorn, while other supervisors that were present included the dry dock foreman, Mr. David Byrum, who oversaw its welders, the head electrician, Mr. Curtis Jones, and the carpentry crew manager, Mr. Robert Miller. First Marine also had other subcontractors on-site, including Rupke Blasting and Painting (“Rupke”), that performed pressure-washing and painted water tanks. First Marine’s employees and its subcontractors utilized multiple potentially hazardous substances to fuel their equipment and heat the towboat, such as diesel, kerosene, propane, propylene and compressed oxygen.

On the incident day, upon arrival and boarding of the towboat, most workers, including head electrician, Mr. Jones, noticed an atypical gas odor. Although no atmospheric testing was conducted, some workers moved the materials to ventilate the upper engine room. Mr. Jones, accompanied by other workers, conducted a search of the lower engine room to locate the source of the gas odor since, as per Mr. Jones’ testimony, he assumed the smell originated from a propane tank for the heater that had been changed by Rupke’s workers and was located in that area. He had previously wired fans between the lower and upper engine rooms, which were running to ventilate the areas, and additional fans were also set up in a compartment in the forward section of the boat for further ventilation. Thereafter, work commenced in the lower engine room that included welding and cutting with the use of gas and compressed oxygen. At around 9:15 am, an explosion occurred killing and injuring workers.

OSHA issued multiple citations to First Marine but the one at issue, here, pertained to a willful violation of 29 C.F.R. § 1915.12(d)(1) requiring employers to “ensure that each employee that enters a confined or enclosed space and other areas with dangerous atmospheres is trained to perform all required duties safely”. The Secretary (of Labor) claimed that First Marine allowed its employees to enter these confined spaces to perform work that included arc welding with a torch, pipe fitting, (etc.) without training them on hazards of confined and enclosed spaces and exposed them to fire, atmospheric and explosion hazards.

The litigated issues in this decision pertained to First Marine’s noncompliance with the safety standard and whether First Marine’s actions could be characterized as a “willful violation” which would result in greater penalties. To establish non-compliance with the standard, the Secretary must show that the employer failed to provide instructions that a reasonably prudent employer would have provided under the same circumstances. Based on the testimony of five First Marine employees present on day of the explosion, the ALJ¹ determined that these employees lacked “a firm grasp of proper safety procedures” and the ALJ rejected the testimony of First Marine’s supervisors, Mr. Thorn, Mr. Byrum and Mr. Miller, who claimed that their workers were in fact adequately trained, as they failed to provide any documentation of such training as required by a separate OSHA provision pertaining to shipyards. First Marine acknowledged that although many of its employees had not been formally trained, these employees were in fact trained through “informal, on-the-job training” and that their employees appreciated the dangers associated with the smell of gas. The Secretary contended that the noncompliance was not only proven by testimony but by their actions as numerous workers were in fact smoking cigarettes on a vessel that smelled of gas, even while it was being vented, and First Marine failed to train its workers on basic principles of working safely, such as in instances of smelling gas. The Commission agreed, and cited to the testimony of First Marine’s workers showing how they had not been trained in what to do when smelling gas on the boat, discounted the smell as not important or dangerous, and, in fact one of the injured welders testified that he had not been trained on the hazards with using propylene or compressed oxygen in confined spaces and did not even know if he had been working with propylene or propane. Some of the workers failed to even report to a supervisor about the gas odor and three employees even admitted to smoking in an area that smelled of gas. The testimony by First Marine’s supervisors of informal on-the-job training was insufficient especially as it pertained to the smell of gas or the hazards of working with compressed oxygen and given that one worker even admitted he was unaware of what materials he was actually using.

However, based on the evidence, the Commission found that First Marine had not consciously disregarded the safety provision, and re-classified the violation from “willful” to “serious” and lowered the monetary penalty, accordingly. First Marine’s four experienced supervisors had completed competent person training and Mr. Thorn, Mr. Byrum and Mr. Miller all testified that they believed their employees had been sufficiently trained by way of the weekly safety meetings, daily work meetings with welders, and on-the-job instruction. Although this testimony was insufficient to show First Marine’s compliance with the safety standard, based on the evidence submitted, First Marine did not appear to be “plainly indifferent” or that it consciously disregarded the applicable safety standards (so as to be “willful”). The submitted evidence and testimony showed that First Marine did not appreciate that its procedures were deficient, and there had been no prior OSHA citations or an external audit to have placed First Marine on notice that its training was deficient. Moreover, First Marine was not “plainly indifferent” as it responded to the conditions present prior to the explosion by undertaking an investigation as to the source of the gas smell and by ventilating the vessel. First Marine failed to train its employees, it did not fail to respond to the conditions.

¹ The ALJ refers to the Administrative Law Judge for which this matter was initially heard and for which findings and decision was appealed to the Occupational Safety and Health Review Commission whose decision is discussed in this article.

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Engineering surveys are required to be performed by competent persons¹ before demolition operations begin so as to ensure the safety of workers. They should cover the work to be performed, identify the hazards at the site, address measures to prevent hazards and contemplate the danger of unplanned collapse. The decision in Secretary of Labor v. Wildcat Renovation, LLC discusses these requirements, how the Courts have defined “engineering surveys” and what constitutes adequate and proper compliance of the appropriate safety standards.

Wildcat Renovation, LLC (“Wildcat”) is a selective demolition, concrete cutting and shoring specialty company. In 2020, Wildcat bid on a demolition project in Naples, Florida at a water park. The project involved demolishing a wooden footbridge, along with removal of two concrete walls, which had served as supports for the footbridge. Wildcat was sent a set of documents including the scope of work and the “as-builts”. Wildcat’s owner, Mr. Miller, reviewed these documents and also sent out two estimators to the site. Wildcat was ultimately awarded the job. Prior to commencing the work, Mr. Miller visited the site on September 16, 2020, and inspected the structures to be demolished and took videos of the site conditions. On the following day, Mr. Miller returned with Mr. Nywening, the Project Manager. They both performed a visual inspection of the footbridge and concrete supporting walls and developed a demolition plan. The plan used the “score, break and remove” method which involves scoring or cutting partially through the concrete in grid patterns, and then breaking it with a sledgehammer (or other machine) for removal. The plan was memorialized in scope of work document.

On September 24, 2020, Wildcat sent a three-man crew comprised of a foreman, Mr. Norton, and two laborers who had performed various jobs that included concrete cutting and operating machinery. Wildcat also sent to the project a demolition robot, a booming forklift and mini-track loader. The Project Manager met with the foreman and reviewed the scope of work and then over a course of three days, the crew began and completed the removal of the wooden footbridge. The Project Manager visited the site twice a day and noted his visits in daily reports. On September 28, 2020, the crew began demolishing the first concrete wall, without any issue. On the following day, the crew began to remove the debris from the concrete wall and as planned, they would proceed to demo the second wall. The Project Manager had appeared that morning but then left the site. The crew began cutting the second wall. The foreman was in the parking lot moving the forklift while one of the laborers was cutting the bottom of the wall, and the other laborer watched the power lines. As the laborer continued cutting the bottom of the wall, the foreman saw that the wall began to tip and called-out, but the wall fell on the laborer. Tragically, the laborer would succumb to his injuries.

Following this incident, an OSHA Compliance Officers inspected the site, took photographs and measurements and interviewed the foreman and laborer from Wildcat’s crew and subsequently issued a citation. The first item of the Citation alleged that “an engineering survey was not performed by a competent person to determine the conditions of the walls and the possibility of unplanned collapse…a competent person did not perform and document in writing an engineering survey of 6’ x 10’ cement walls to determine their condition…” The Secretary (of Labor) contended that to the extent Wildcat performed an engineering survey it was inadequate and did not take into account the possibility of unplanned collapse, as it was noted in Wildcat’s scope of work sheet, that no shoring was necessary.

The appropriate safety standard provides that “prior to permitting employees to start demolition operations, an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors and walls, and the possibility of unplanned collapse of any portion of the structure…The employer shall have in writing evidence that such survey has been performed.” The Administrative Law Judge (“ALJ”) in this matter found that nowhere in the standard or its source standard (ANSI A10.6-1969) was the term “engineering survey” actually defined and thereafter looked at how the OSHA’s Review Commission, and other judges have addressed the standard’s requirements. The Commission in Ed Miller Sons Inc. No. 934 (OSHRC July 31, 1974) found that the demolition’s company vice president who was experienced in demolition, had inspected the structure at issue twice, developed a sequence for the work, memorialized his plan and confirmed that he had in fact conducted the inspections in a signed memorandum, which all together constituted adequate compliance to the safety standards.

Here, the ALJ found that Wildcat’s actions mirrored those in Miller that had been found adequate. Mr. Miller had received and reviewed the set of documents that included the “as built drawings” which gave him the height, size and thickness of the concrete walls, the psi of the concrete used, and the steel embedment of the walls, he had visually inspected the structures, took videos and confirmed that the structures were consistent with the drawings and that no shoring or bracing was required and that the most effective method for demolition here was to “score, break and remove”. Mr. Miller believed that this method would keep the wall stable until it was brought down by equipment and how he had used this method “thousand of times”. Further the ALJ noted how Mr. Miller returned to the site on the following day, conducted further visual inspections of the footbridge and concrete walls, and together with Project Manager, agreed on a plan to demolish the structures. These plans were memorialized in a scope of work document which included details of the project, how Wildcat intended to complete the job, equipment to be used, the site conditions and overall means and methods and how shoring was not needed. Moreover, Mr. Miller and the Project Manager communicated the scope of work with the crew and the Project Manager memorialized his visits in daily reports. The Secretary provided an expert who testified that Wildcat’s engineering survey did not meet the requirements of the safety standard because it did not note the hazards on the site and did not contain a plan for using protective measures and therefore showed that Wildcat did not consider the possibility of unplanned collapse. The ALJ disagreed and found that all of Mr. Miller’s steps were in fact adequate to conduct an adequate engineering survey and vacated this item of the Citation.

¹ Defined as “one who is capable of identifying existing and predictable hazards in…working conditions …and who has authorization to take prompt corrective measures to eliminate them.”

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OSHA violations are issued from the observation of unsafe practices at jobsites regardless of whether an accident has occurred. Typically, these violations arise from employee(s) not following a company’s own safety rules. However, the burden to prove the employee misconduct so as to dismiss an OSHA violation is generally high and the recent decision in Secretary of Labor v. Elmer W. Davis, Inc. is informative as to the extensive policies and procedures a construction company has to have in place to successfully argue it.

Elmer W. Davis, Inc. (“EWD”) is a commercial roofing contractor based in Rochester, New York and employes approximately 150 to 300 persons, varying with seasonal needs. On April 30, 2021, EWD assigned two employees, Ory Leach and Cody Pritt, to repair seams on a low-slope roof of a one-story commercial building in Rochester, New York. The roof to be repaired was rectangular and not more than 50 feet wide, and its slope was less than 4 in 12 (vertical to horizontal); the roof’s edge was unprotected and three of its four sides were about 15 feet above ground level. Upon arrival the employees decided that the roof’s configuration permitted them to solely use a safety monitoring system and did not require implementation of further fall protection based on EWD’s work rules. Leach was the designated foreman of the two-person crew based on seniority, and as crew foreman Leach decided he would act as the safety monitor for Pritt while Pritt performed the repair. EWD’s work rules for safety monitoring prohibited Leach from engaging in any roofing work while he was acting as safety monitor for Pritt, and Leach was aware of this rule. While Pritt did the roofing work, Leach held a hand trowel Pritt had been using and he began to do some roofing work himself thus performing work while simultaneously acting as safety monitor for Pritt. Leach’s action of simply holding the trowel violated EWD’s own work rule that safety monitors engage in no activity other than monitoring.

As Leach and Pritt were on the roof, an OSHA Compliance Officer (“CO”) that was driving by noticed them working near the roof’s unprotected edge without using any fall protection and began taking multiple photographs showing Leach standing near the unprotected edge with his back to the edge facing away from Pritt, and the hood of Leach’s sweatshirt pulled fully over his head, limiting his peripheral vision. After observing and photographing the employees for approximately 10 minutes, the CO identified himself to them and asked them to come down from the roof. CO briefly interviewed the employees. EWD’s safety director, Tim Crumb, had also been called by Leach and arrived at the site. After discussion with the CO, Crumb summoned the employees over in which it was established that the employees partook in safety training on fall protection that Tuesday, and EWD established that employees must always have a monitor. The next day, on May 1, 2021, Crumb sent the CO an email stating that “no doubt that a violation occurred” that “this is a case of misconduct”. On May 3, 2021, EWD formally disciplined both Leach and Pritt for their conduct on the roof, the disciplinary notices of each employee imposed a one-week suspension in accordance with EWD’s progressive discipline policy.

Subsequently, OSHA issued a Citation that alleged one serious violation asserting a violation of the standard which prescribes permissible fall protection systems and practices for “roofing work on low-slope roofs” with the alleged violation description providing that “On or about 4/30/2021,… the employer did not enforce the use of fall protection for employees engaged in roof work …Employees were exposed to falling 15 feet to lower levels while working near the roof edge with no fall protection.”

Following the hearings, the Administrative Law Judge (“ALJ”) found that the Secretary (of Labor) had proven by a preponderance of the evidence (i.e., that it was more likely than not) the employee’s conduct was in violation of the applicable standards, which provides that employees working on low-slope roofs with unprotected sides and edges 6 feet or more above lower level shall be protected by implementing a guardrail system, safety net system, personal fall arrest system, warning line system and safety monitoring system. As set forth in the standard, a compliant safety-monitoring system shall conform to criteria that a safety monitor shall be on same walking/working surface and within visual sighting distance of employee being monitored, be able to communicate orally with the employee and that the safety monitor shall not have other responsibilities which would take the monitor’s attention from the monitoring function. The acting foreman violated these rules when he began to do some roofing work which would have reasonably taken his attention away from his monitoring function.

However, EWD was successfully able to prove the affirmative defense of unforeseeable employee misconduct and overcome the “substantial evidentiary hurdle”. To establish this affirmative defense an employer must prove the following evidence by a preponderance of the evidence: 1) it established work rules to prevent the violation; 2) these rules were adequately communicated to the employees; 3) it took steps to discover the violation; and, 4) it effectively enforced the rules when infractions were discovered. Under the first element it was found that EWD’s work rule prohibited safety monitors from engaging in any activity other than monitoring employees and if Leach had complied with this company’s rule his conduct would have conformed to the mandate that a safety monitor have no “other responsibilities which would take the monitor’s attention from the monitoring function.” EWD’s work rule was adequate because it is both “effectively implemented the requirements of the standard” and was “designed to prevent the cited violation.” Under the second element, adequate communication of a work rule may be accomplished through training and here EWD adequately communicated its work rule. EWD’s written “Corporate Safety Program” addresses the role of a safety monitor in fall protection and is covered during orientation of new employees, in addition to annual training on fall protection training for its employees, and alongside regular participation by its field employees in toolbox talks and on-the-job training. Additionally, Leach and Pritt’s attended refresher training on the use of a safety monitoring system three days before the violation occurred. Under the third element of effective implementation, a safety program requires diligent effort to discover and discourage violation of safety rules by employees, and one of the factors used to determine whether employer effectively enforced its safety rules are the efforts it takes to monitor adherence to those safety rules. EWD established this element by showing it had a designated foreman who is responsible for worksite safety; a separate safety director who devotes much of their time visiting jobsites monitoring compliance with work rules, alongside another member of EWD’s safety department who also conducts worksite inspections. Furthermore, EWD also hires outside safety consultants to conduct unannounced inspections and requests that its insurance carriers conduct their own unannounced inspections. As to the last element it must be shown that an employer effectively disciplines employee misconduct. Pre-inspection and post-inspection disciplinary measures may be considered in determining whether an employee has effectively enforced its work rules. EWD’s progressive discipline policy prescribes an oral warning, as the sanction for first-time rule violations, but an employee’s first-time failure to use required fall protection is an exception, warranting the more severe sanction of a one-week suspension, or at the option of the sanctioned employee, in lieu of suspension, completing an OSHA-authorized training course on their own time. Since 2013, EWD had formally disciplined employees on 83 occasions including for violations of fall protection violations. The two employees here were similarly disciplined with one-week suspensions. Therefore, this affirmative defense was established, and the Citation was vacated.

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With summer approaching and temperatures beginning to rise, construction companies must take every reasonable precaution to protect their workers from potential hazards, including heat-related illnesses. The Occupation Safety and Health Review Commission’s recent decisions in Secretary of Labor v. United States Postal Service, show the importance of providing adequate heat safety training to employees.

In the summer of 2016 two letter carriers in Des Moines, Iowa were hospitalized due to “excessive heat” hazard. The first incident occurred on June 9, 2016, in which the first carrier began texting her supervisor on how she was not feeling well and she was trying to finish her run. The supervisor encouraged her to do as best as she could and offered to provide ice but was unable because she became preoccupied with work, as well. The temperature surpassed 90 degrees Fahrenheit during this period. As the letter carrier felt too ill to continue working, she began to drive back to the station when she vomited out the window of her vehicle. Upon the carrier’s arrival to the station three other letter carriers described her appearance as “extremely red”, “dazed”, and “shaking”. The supervisor acknowledged that the carrier looked “flushed” and noted her collar was wet with sweat and instructed her to sit down and proceeded to call the station manager. The station manager instructed the carrier to finish her route. The letter carrier refused and proceeded to “storm out” and talk to her union representative, and then proceeded to visit an urgent care facility.

The second incident occurred on July 21, 2016, as the second letter carrier, classified as a City Carrier Assistant (a “CCA”), a non-career employee, was delivering mail on-foot, she began to experience a headache, nausea, and memory loss. A supervisor came to the carrier’s truck and the carrier informed the supervisor of her symptoms. The supervisor provided the carrier with three water bottles and left, but as the carrier continued her route, her symptoms began to worsen. Eventually the carrier called her son who called 911 and the carrier was subsequently transported to the hospital.

As a result of these incidents and other related incidents, OSHA issued a Citation alleging repeat violations of the general duty clause of the Occupational Safety and Health Act in which the Postal Service exposed its employees “to recognized hazards related to working outside during periods of high heat levels while delivering the … mail.”

The supervisor from the first incident testified that she had never been trained by the Postal Service on heat-related illnesses prior to this incident, apart from sometimes receiving emails with heat safety information and seeing a poster on heat safety in the breakroom. On the second incident, although, The Postal Service completed an accident report claiming that this carrier had failed to “comply with the rules”, the second letter carrier, a non-career employee, testified that no one at the Postal Service told her what rules she had failed to comply with and during the course of OSHA proceeding her testimony was deemed more credible than that of her supervisor’s.

The Commission found that this evidence had shown the training was deficient and that adequately training supervisors on heat safety would have materially reduced the risks posed by excessive heat. Moreover, safety talks were held when employees such as CCAs were not present. Adequate training requires attendance of all supervisors of safety talks, including ones addressing heat stress safety when all supervisors and employees, including CCAs, are present. Safety talks should not be conducted before certain employees are required to report to work.

The dangers of heat illness had been further discussed in the ALJ’s decision in this matter. The most serious illness caused by heat stress is heatstroke, which causes a dysfunction of the brain. Symptoms include slurred speech, disorientation, confusion, unconsciousness, or coma, and death. Symptoms of heat exhaustion include headaches, nausea, vomiting, dizziness, and profuse sweating but does not result in an elevated body temperature or brain dysfunction. It is important that employers and employees recognize these symptoms to prevent “excessive” heat hazards. Moreover, it is vital to implement a heat acclimatation program for employees who are returning to work due to personal or health reasons. In A.H. Sturgill Roofing Inc., the Commission vacated citations that had been issued following an incident where employee who collapsed at a worksite and subsequently died from complications of heat stroke after working on a roofing project. The deceased employee had various pre-existing medical conditions. The employee’s assignment was to stand near the edge of the roof where other employees brought him a cart full of cut-up pieces of roofing. The assignment was intentionally made by the foreman because it was the employee’s first day on the project. All employees were encouraged to utilize the immediate access to ice, water, rest, and shade, without fear of reprisal.

Construction companies should have in place a proper heat illness prevention program that is communicated with all their employees, permanent and temporary, and that ensures adequate safeguards such proper supervision, acclimatizing workers, providing water, and managing work and rest cycles.

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The Occupation Safety and Health Review Commission’s recent decision in Secretary of Labor v. A Crane Rental LLC shows that subcontractors on a construction jobsite must ensure proper compliance with relevant safety standards especially the specific standards applicable to their work. Although a subcontractor might not control or supervise the employees of other contractors on a site, if they in any way violate applicable safety standards and create an unsafe situation, they can be held responsible.

A Crane Rental LLC (“ACrane”) provides cranes, lifting equipment and operators for general contractors. ACrane was among multiple companies working on a communication tower in Norcross, Georgia on March 21, 2019 when another company’s employee fell from ACrane’s personnel platform. ACrane had been contracted to provide a crane, an operator, a personnel basket, and a rigging system to lift to a subcontractor, Superior Broadband Towers’s (“Superior”) workers onto the communications tower. The personnel basket was rated to carry only up to two persons. Superior’s foreman at the site was the Lift Director responsible for determining what and who would be lifted. ACrane’s operator, an employee whose name had been redacted from the record indicated that his responsibilities included crane assembly, determining the location of the crane at the site, and rigging the personnel basket. He had no supervisory job functions but was rather supervised by ACrane’s operations manager, although she had not visited the site until the accident. On the first day, ACrane’s operator hoisted two of Superior’s employees on the personnel platform, while on the second day he hoisted he hoisted one or two Superior employees. However, on the third day, March 21, 2019, Superiors’ foreman, loaded the personnel platform with equipment and three Superior employees. ACrane’s operator testified that due to the platform’s location he could not see it until the personnel platform had been lifted about halfway up the communications tower, at which point he decided it was safer to take three workers to the top of the tower rather than lower them to ground. As one of Superior’s employees attempted to tie off to the tower, he tragically fell 105 feet and succumbed to his injuries.

During OSHA’s subsequent investigations, ACrane’s operator admitted questioning that he had determined the best location for the crane to be set-up and that he could see the personnel basket from the ground to the whole tower. However, based on the submitted evidence, it was shown that the operator was unable to see the personnel platform until it cleared the trees about halfway up the tower at the time of this accident.

ACrane’s written procedures for Crane Hoisted Personnel Platforms required that “workers to be hoisted” must attend a pre-lift meeting. On the day of the accident, Superior’s foreman, in his capacity as the lift director, held a lift meeting with ACrane’s operator. However, the operator did not know which Superior employees would be hoisted that day and he had no knowledge whether the foreman briefed the Superior employees to be hoisted separately, except for observing the foreman walked towards Superior’s crew after their meeting.

OSHA investigated the tragic accident and subsequently issued a two-item citation to ACrane alleging violations of OSHA’s Cranes and Derricks in Construction standard. Under the Item #1, OSHA alleged that when a “two person personnel basket was utilized by the crane operator to hoist the…crew consisting of three employees to heights above 90 feet from ground level… the maximum capacity of the personnel basket was exceeded exposing employees to fall and struck-by hazards” given that the cited OSHA standard mandates that the “number of employees occupying the personnel platform must not exceed the maximum number the platform was designed to hold or the number required to perform the work, whichever is less.” Under Item # 2, it was alleged that ACrane committed a serious violation of OSHA’s standard when it did not ensure that “employees hoisted in a personnel basket attend the pre-lift meeting with the crane operator and competent person responsible for the communication tower work” as the cited standard requires that the pre-lift meeting must be attended by “the equipment operator, signal person (if used), employees to be hoisted and the person responsible for the task to be performed.”

The Secretary established that cited standards applied to the cited conditions and that they were violated since A.Crane’s operator could not identify anyone else besides the foreman/lift director who had attended the pre-lift meeting and he did not know whether Lift Director had separately briefed the workers to be hoisted. However, the Administrative Law Judge found that ACrane did not have its own employees exposed to the violative conditions, and it was not a “controlling employer” under OSHA’s Multi-Employer Citation Policy (which provides that an “employer who… controls the cited hazard has a duty… to protect not only its own employees but those of other employers engaged in the common undertaking”) and therefore vacated the Citation.

The Occupation Safety and Health Review Commission disagreed and reversed the ALJ. The Commission found that although ACrane was not a “controlling employer” it rather was a “creating employer” (which as defined by relevant precedent provides that an “employer who creates a violative or hazardous condition is obligated to protect its own employees as well as employes of others who are exposed to the hazard.”) Therefore, the ALJ should reconsider their legal analysis accordingly, to determine ACrane’s noncompliance and knowledge elements with respect to the Citation.

Even if a subcontractor lacks authority to direct other contractors’ employees at a site, it must still take “effective steps” to keep all workers safe, and, especially from any dangers and hazards associated with its own work.

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The Administrative Law Judge’s decision in Secretary of Labor v. Rene Silverio Gonzalez/RG Roofing shows the importance for a construction company not to neglect but rather timely respond to any OSHA citation(s) and file a written notice of contest within 15 working days of receipt of the citation to preserve its ability to defend and challenge its merits.

Upon receipt of a citation, a company can chose to engage in an informal settlement process, and the documentation included with the OSHA citation typically outlines those procedures. However, should the matter not be resolved, and if the company does not accept the citation (and its corresponding fine(s)), in order to ensure its rights to challenge, it must send a written Notice of Contest within 15 work-days of receipt of the citation, or else risk having the citation and any corresponding fine/penalty become final, and the last word.

In this underlying matter, following a November 12, 2020 OSHA inspection at a worksite in Hitchcock, Texas, the Secretary of Labor issued a Citation alleging three serious violations on safety standards in relation to the RG Roofing’s operations at the site and a proposed penalty of $8,097. The Citation was mailed on December 28, 2020. Upon receipt of the Citation, RG Roofing’s owner, Rene Silverio Gonzalez, attempted to contact the local OSHA office but he could not offer any details as to when or the exact number of times he called the office and he never left any voicemails. RG Roofing never filed a written notice of contest and the Citation became a final order on January 27, 2021. OSHA thereafter sent a payment demand letter to RG Roofing. As payment was not received, the matter was referred to the respective debt collection office in May 2021. The local OSHA office on July 9, 2021 received a voicemail in Spanish from Mr. Gonzalez and the call was returned on July 12, 2021, and which point it was explained to him that the matter had been referred to debt collection and their office could take no further action.

On January 19, 2022, OSHA conducted another inspection of RG Roofing’s worksite in Texas City, Texas and based on the inspection, issued a Citation, alleging repeat violations of the same regulations as those cited in the December 2020. RG Roofing filed a timely notice of contest for this latter Citation and thereafter its representative, made an application for RG Roofing to be relieved from the final judgment arising from the December 2020 Citation.

The ALJ denied the motion on both procedural and meritorious grounds. The motion was procedurally untimely (as it was late by two months) and RG Roofing had not demonstrated excusable neglect. The ALJ, citing to applicable case law, “takes account all relevant circumstances surrounding RG Roofing’s failure to file a timely notice of contest, including the danger of prejudice to the Secretary, the length of delay and its potential impact on the judicial proceedings, the reason for delay and whether RG Roofing acted in good faith.” Here, the record showed little evidence of how RG Roofing handled its mail. Mr. Gonzalez testified that he receives his business mail at his home, the Citation was properly addressed, and although he does not read or write English, he engages his son when receiving mail in English. No other evidence of its mail handling procedures were offered. Although, Mr. Gonzales testified that he had resolved prior OSHA citations by calling the area office, and he attempted the same process unsuccessfully here but since he could not offer any details as to these attempts, this was given little evidentiary value.

Moreover, the ALJ found that RG Roofing had not acted in good faith in that it only sought to contest the Citation only after it had received a subsequent citation and the negative consequences of failing to challenge the initial Citation became evident.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

Governor Kathy Hochul recently signed legislation known as Carlos’ Law, which amends New York’s Penal Law and increases the penalties for criminal corporate liability for the death or serious physical injury of an employee, a felony or misdemeanor, by fines of up to $500,000, as per the Governor’s press release. The legislation is named after Carlos Moncaya, a 22-year-old construction work who died at a construction site in New York City in 2015. Harco Construction, the company overseeing the construction site where Mr. Moncaya was killed, had been convicted of manslaughter and ordered to pay maximum penalty, which was $10,000 at that time. The construction site had been repeatedly cited for safety violations.

The new law drastically increases the potential criminal fines that construction companies could potentially face. According to the Governor’s press release, under the newly signed legislation, “a corporation is guilty of criminal corporate liability for the death or injury of a worker when it negligently, recklessly, intentionally, or knowingly causes the death or serious physical injury of its employees while they are on the job”.

Pursuant to the statutory language, the legislation increases the fines from a felony conviction from $10,000, to a minimum of $500,000 and a maximum of $1,000,0000, while raising the fine for a misdemeanor conviction from $5,000 to a minimum of $300,000 and a maximum of $500,000. These drastic increases are meant to have a strong deterrent effect on construction companies to ensure the safety of its workers and of construction sites.

The law goes into effect on January 23, 2023. We will continue to monitor and report of developments as to this law’s implementation.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

As has been previously shown in this safety series, Labor v. Sentinel Systems, LLC emphasizes the need for construction companies to provide proper instruction and training to their employees in the proper use of heavy equipment so as to avoid hazards associated with their use, in this instance the use a utility vehicle on paved surfaces with tires designed for off-road use, only.

Sentinel Systems, LLC (“Sentinel”) was one of the contractors involved in the construction of the American Dream Mall complex in East Rutherford, New Jersey (the “Project”). Its scope involved applying resinous floorings in the indoor amusement park and installing epoxy flooring in a parking garage. It had about 100 employees working on the Project.

On October 9, 2019, a Sentinel employee was driving a Bobcat Utility vehicle (“UTV”) when he fatally crashed into the front end of an empty flatbed semitrailer in a parking structure. The accident occurred at around 2:15 pm, in a parking structure that was used as a staging area for construction materials. A semitruck dropped off the flatbed for the offloading of material. The front end of the flatbed was exposed and was supported by front landing gear. This portion of semitrailer did not have any reflective materials and its location was not demarcated by traffic cones. Although the artificial light was sporadic, there was enough ambient natural light that the front end of the semitrailer would have been properly observable a reasonably attentive driver. The decedent employee was last seen by the GC’s superintendent driving the UTV about 10 mph, and in the parking structure when he struck the flatbed. It was inferable form the circumstances that the decedent did not discern the presence of the parked semitrailer before striking it.

After an investigation, OSHA issued a Citation with a single violation of construction industry standards titled “Safety training and education” which provides that “The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury” and that Sentinel violated the standard by not providing “the Bobcat operators instruction on operating a Bobcat utility vehicle on pavement with tires that are designed for off-road use only”. The Citation proceeded to quote two provisions from the manufacturer’s Operation and Maintenance Manual (“Manual”) for this equipment: 1) “AVOID INJURY OR DEATH. Read this…Manual. Understand all…precautions and operating procedures before operating this vehicle.”; and 2) “This vehicle’s tires are designed for off-road use only, not for use on pavement. Operating this vehicle on paved surfaces…can alter the vehicle handling and may cause loss of control. Avoid operating the vehicle on pavement. If it is unavoidable, travel slowly and avoid sudden turns or stops.” The Recommended Abatement Action, included with the Citation, re-quoted the same 2 Manual provisions indicating OSHA’s Compliance Officer’s (“CO”) position that had Sentinel provided its operators with instructions that conformed to the two referenced provisions, the accident could have been avoided.

The Citation focused on two issues. 1) What instructions and training did Sentinel provide if any to driving the Bobcat UTV on paved surfaces when the tires were designed for off-road use only; and 2) Whether the Secretary met its burden to show that a “reasonably prudent employer” under the same circumstances would have done more to instruct its authorized operators on driving the Bobcat UTV on paved surfaces with tires that were designed for off-road use. Here, the record showed that Sentinel met its burden while the Secretary did not.

Sentinel was able to show that it had authorized only 9 managerial employees to operate the Bobcat UTV and that each authorized operator had prior experience operating similar vehicles. Sentinel had established that it had instructed each employee to review the Manual and had instructed each to drive no faster than 15 mph at the site, and it had assessed the knowledge of competence of each employee in individual test drives at the site. The Bobcat UTVs had been delivered to Sentinel at the Project and its president and Director of Field Operations (“DFO”) were present to accept them. The president had advised the DFO that he would be responsible for employee training. The equipment dealer representative trained both the president and the DFO and tailored the training to the conditions at the Project site. The surfaces for vehicle traffic at the Project were in constant flux and included gravel, earthen and paved surfaces. The dealer advised the president and DFO that the UTVs must not be driven at speeds of more than 10 to 15 mph, specifically on paved surfaces and advised them that operators not familiar with the vehicle should read the Manual. Only nine management level employees were authorized to operate the UTV, including the president and DFO. These seven employees including decedent had informed the DFO that they had experience operating similar vehicles. Moreover, the DFO provided one-to-one training on the operation of the UTV especially since Sentinel recognized that operators may encounter the hazard of losing control of the UTV when operating on paved surfaces. The training including the instruction of not driving faster than 10 to 15 mph at the Project and to drive in two-wheel mode when driving on paved surfaces for better handling. The DFO also rode with each of the seven employees on test drives at the site. After the training and test drive, each employee expressed confidence to the DFO that they could safely operate the UTV. The DFO also instructed each operator to review the Manual which was in the UTV’s glovebox. Before this accident there had not been any instances of any authorized employees driving the UTV in an unsafe manner.

The cited safety standard by OSHA is a general safety standard and therefore the ALJ utilized a reasonable person standard – would a “reasonably prudent employer” under the same circumstances have done more to instruct its authorized operators on driving the UTV on paved surfaces with tires that were designed for off-road use. Here, although Sentinel appeared to have initially offered conflicting accounts to OSHA’s Compliance Officer during the investigation following the accident, the evidence that was submitted showed that in fact Sentinel had taken adequate steps and instructions that were specific enough to advise employees of the hazards associated with use of this particular equipment and the Citation was vacated.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445

Construction companies must not only ensure that they have a proper safety program in place, but that it is also adequately communicated and enforced by documented audits and consistent employee discipline, as shown in the matter, Secretary of Labor v. J.D. Abrams, LP. In this matter, the Administrative Law Judge (“ALJ”) affirmed the citations arising from an employee working in a trench excavation, over five feet deep (without proper cave-in protection) and the use of ladder in that trench that did not extend the minimum requirement of three feet above the landing surface.

J.D. Abrams, LP (“Abrams”) performs highway construction projects with about 500 employees. On December 3, 2019, Abrams, was engaged in a large waterline installation project in Austin, Texas. The installation supervisor (foreman) had worked for Abrams approximately two years and he had worked in excavation for over thirty years. He was supervising a three-person crew on this project: one person operated the excavator; the second worked in the trench; and the third worked outside the trench. This particular crew had worked on a section of trench that had been flooded on the previous day when a trench box crushed a section of pipe. No one was working inside the trench at that time and that portion had been repaired. On December 3, the foreman advised his crew that they would not use a trench box that day due to the prior day’s issue. They began excavating the trench, which ran parallel to the road on one side and to the sidewalk on the other. About 18 inches of rock was excavated from the lower layer while the middle layer was determined to be Type B soil. The top layer consisted of about a foot of asphalt on the wall closer to the roadway and six inches concrete and wire mesh material, closer to the sidewalk. One employee would use a ladder to go down into the trench, and prepare the base for a section of pipe, the excavator would then place that portion of pipe. The process would be repeated, and the ladder would be moved further down.

Two OSHA officers arrived at the site to observe the conditions, take photographs, measurements, and employee statements. The trench was six feet wide and between 60 to 86 feet long. The trench depth was measured in three separate locations, and each was over five feet: five feet, eight inches; six feet; and six feet, seven inches. The top of the ladder used to access and exit the bottom of the trench was two feet, eight inches above the landing surface. The foreman at the site admitted that he knew that a trench over five feet in depth had either to be sloped back or protected with a trench box, but he had avoided its use to avoid the incident that occurred on the previous day. He also knew that the top of the ladder should extend three feet above the landing surface, and he had verified it at the beginning of work that day, but he did not continue checking as work progressed.

OSHA cited Abrams for two items: Item 1 pertained to failure to properly protect workers from cave-ins during excavation, which specifically provides that adequate protective systems are required unless excavations are made entirely in stable rock or the excavation is less than five feet in depth and an examination of the ground by a competent person provides that there is no indication for a potential cave-in. Here, employees were noted to have been working in a trench approximately six foot seven inches in depth, without shoring, a trench box or other adequate protective system. Abrams unsuccessfully attempted to argue that the depth of the trench was less than five feet by not including the bottom layer of solid rock and the top concrete/asphalt layer. The ALJ dismissed this argument given that the case law is clear that depth of a trench is measured from the base to the top regardless of the various types of soil or other materials that it consists of. Moreover, the stability of the excavation is evaluated by the weakest material in the structure. Therefore, no exceptions applied, and an adequate protective system was needed, and not provided.

Item 2, cited Abrams for failure to require a portable ladder extend at least three feet above the upper landing surface, exposing the employee to a fall hazard. Here, the top of the ladder extended by two feet, eight inches, and clearly did not comply with the requirements of the cited standard. Given that it was also clearly known by the foreman, the Secretary proved its case for this violation.

Abrams asserted an unpreventable employee misconduct defense as to both citation items and referred the ALJ to its extensive Safety Program. To prevail, on this defense, an employer must show that it “1) established work rules designed to prevent the violative conditions from occurring; (2) adequately communicated those rules to its employees; (3) took steps to discover violations of those rules; and, (4) effectively enforced the rules when violations were discovered.” The ALJ found that Abrams met the first two criteria. Abrams had established adequate work rules that in effect mirrored OSHA’s standards that were cited here, and they were effectively communicated to its employees.

Abram’s Safety Program included a 72-page employee safety manual (the “Manual”) available in English and Spanish, training, and Abrams employed area safety coordinators. Each employee was provided a copy of the Manual during company orientation and received training. The Manual is organized into twenty-five safety topics including excavations, fall protection, stairways, and ladders, etc. The Manual specifically set forth that that no one should enter into an unprotected trench with a depth greater than five feet, unless protected by a trench box, or the sides of the trench are sloped back. Ladders must be set-up with side rails extending a minimum of 36 inches above the landing. Abrams also employs four safety coordinators dedicated to safety, training, auditing of worksites for safety compliance and investigating incidents. The foreman had received excavation training about four of five times during his tenure, as well as interactive training. Abrams conducts every Monday, a 30-minute safety meeting for its staff at every active project where attendance is documented by the signing the Supervisor’s Safety Training Report attendance sheet. Moreover, each day a foreman has a five-to-ten-minute meeting with the crew to go over the work plan and necessary safety measures.

However, Abrams failed to prove that it took steps to detect violations to its safety rules and it did not ensure enforcement and consistent discipline. According to their policies, Abrams’ safety coordinator was required to audit each project at least once per month. If any safety violations are found, the project’s superintendent would be notified so that violations are corrected immediately. Each month, the safety coordinators should report the results of their audits to their management team that would include safety issues and their remediation. However, no documentation of the audits or reports were submitted. The fact that no safety coordinator came to the project on the prior day as result of the crushed pipe flooding the trench suggested that the safety coordinators did not consistently respond to near misses.

According to Abrams, employees who failed to follow their work rules were disciplined either by verbal warning, suspension or termination depending on the nature and severity of the violations. Here, the only offered examples of such discipline were that Abrams’ foreman and worker (in the trench) were suspended for a week without pay following the OSHA inspection. Such post-inspection discipline alone is not sufficient, and no further evidence was submitted of any discipline or enforcement action as a result of its discovery of violations at a worksite.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445