Author: Thomas H. Welby

An OSHA construction standard, 29 C.F.R. § 1926.451(c)(2)(v), forbids using a forklift to support a scaffold platform, unless the entire platform is attached to the fork, and the  fork-lift is not moved horizontally while the platform is occupied.

In Secretary v. Magnum Contracting Inc., while working to erect the steel frame of an office building in North  Dakota, two supervisory employees of the erection company decided to use a JLG telehandler and a Haugen work platform to lift one of them to the height of the second floor, about twelve feet, to perform some last-minute welding at the end of their shift.  The Haugen platform was described as a “screened floor with removable sides,” and an elevated work surface that could be moved around the job site.  Magnum used this equipment only about twice a year; the two men elected to use it because both of the personnel lifts were in use, and work was about to cease for the day.

The telehandler, a rough terrain forklift, had a boom with forks attached, and large knobby tires for use on uneven ground.  The platform originally came with pins designed to secure the platform to the forks, but those had been eliminated, to allow the platform to accept a variety of fork lengths.  The platform also had a chain for use in chaining the platform to the forklift’s mast.  The two men (Brown and a second man, whose name was “Redacted” from the published decision) inserted the forks into iron channels under the platform designed for that purpose.  The men forgot to use the chain, however, or to otherwise affix the platform to the forklift.

The operations and safety manual for the telehandler, as well as a sticker inside the cab, cautioned against driving the forklift while personnel were on a work platform.

 “Redacted,” the second employee, took his welding equipment, and climbed onto the platform.  Brown, operating the forklift,  lifted the platform vertically to a height of about twelve feet, and drove the forklift toward the building, with “Redacted” inside the platform.  As the lift was traveling toward the building, with “Redacted” aboard, the horizontal movement of the forklift caused the platform to slide loose of the forks, and crash to the ground below.  “Redacted” fell from the platform to the ground, suffering three broken ribs and a partially collapsed lung.  The severity of these injuries effectively established the infraction as a “Serious” one, as the definition of “Serious,” for classification purposes under the OSH Act is “a substantial probability that death or serious physical harm could have resulted from the violative condition.”

OSHA cited Magnum Contracting for a single, “Serious” violation, and recommended a penalty of $9,053.00.

Magnum contested the citation.  The parties agreed in writing to most of the material and relevant facts, and submitted their factual stipulations, together with legal memoranda, to the Administrative Law Judge for decision without a trial, each side arguing that they were entitled to judgment as a matter of law.

Magnum, perhaps unwisely, placed its primary reliance on the affirmative defense (i.e., a defense on which the employer had the burden of proof) of “unpreventable employee misconduct.”  While cited employers like to think that the existence of  a company safety program makes most OSHA violations the fault of their employees, actually the requirements to sustain this defense are stringent.  It is frequently asserted, but seldom succeeds.

The ALJ had no difficulty, based on the stipulated facts, in finding that all the elements of an OSHA violation had been established.  OSHA jurisdiction, and Magnum’s status as an “employer,” were conceded.  The telehandler’s status as a forklift was stipulated to by the parties, and the platform was easily found to meet the plain language and case law definitions of a “scaffold platform.”  The applicability of the cited standard did not appear to be a close question.

Similarly, it was short work for the ALJ to determine that the terms of the standard had been violated, as a forklift may only be used to support a scaffold platform if it is secured, and not moved horizontally, which undisputedly is the opposite of what had happened in the case before the judge.

Employee exposure to the hazard, a further element of every OSHA violation, can be established by showing that, during the course of their assigned working duties, their personal comfort activities on the job, or their normal ingress and egress to and from their assigned workplaces, employees were in a zone of danger, or it was reasonably predictable that they would be in a zone of danger.  Where an employee falls and is injured, actual exposure to a fall hazard is indubitable, so this element was established, too.

Brown’s and “Redacted’s” status as supervisory employees ruled out any question but that their employer had had knowledge of the violation.  A supervisor’s actual or constructive knowledge of an OSHA violation is generally imputed to the employer, and actual knowledge on the part of the employer is established, when a supervisor directly sees an employee’s misconduct, or takes part in it himself (which was the case here).

All elements of the violation having been easily established, the employer’s proverbial eggs in Magnum Contracting were all in the basket of the tough, “unpreventable employee misconduct” defense.

Because supervisors have a duty to protect the safety of employees under their supervision, this defense is more difficult to establish when the alleged misconduct is that of a supervisor.

The defense requires an established work rule proscribing the violation cited, adequate communication of the rule to employees, proof of steps taken to discover violations, and effective enforcement of violations discovered.

 Work rules need not be written, but they must require compliance, or forbid noncompliance.  They must be clear enough to eliminate employee exposure to the hazard covered by the standard, and communicated in such a way that their mandatory nature is made explicit, and their scope clearly understood.  “Clear communication” requires adequate training, and instructions designed to prevent the violation.

Magnum, remarkably, stipulated that it did not have a work rule that required securing a platform on a forklift, or forbade moving a forklift horizontally while supporting a platform with an employee on it.

Having stipulated to the lack of the critical work rule just mentioned, Magnum nevertheless sought to rely on a late-discovered safety manual, available to employees, that communicated the substance of the rule, but turned up only 8 months after the accident.  The circumstances, the ALJ found, gave the impression that the written rule was “a recently remembered written formality rather than a clearly communicated and practiced work rule.”  The employer’s seeming unfamiliarity with its own alleged work rule created a reasonable inference, the ALJ found, that the work rule was not clearly communicated or effective.

The only other evidence of communication proffered by Magnum was that “Redacted,” one of the two violators, had signed into a toolbox talk on the subject (and that Brown, also, may have been exposed to relevant safety topics).  However, what one or both men had been taught was not that horizontal transit of a forklift with anyone on the platform was forbidden, but that it was not permitted if the platform was elevated to a height greater than four feet.  The ALJ found that Magnum had not proved the existence and conscientious communication of a work rule that would prevent the violation cited, and the citation and the penalty were confirmed.

One obvious take-away here, is that you must not permit employees on platforms supported by forklifts, that are in motion horizontally.

In addition, know that the mere existence of safety rules, absent clear and conscientious communication and enforcement, is useless, both to prevent injuries, and to establish the “unpreventable employee misconduct” defense.

Many of the construction injury cases we read in doing research for this series involve safety violations committed on the spur of the moment with bad outcomes.  We’re aware, however, that, regrettably, many such violations are committed daily, usually without any harm resulting. 

Some transgressions are so hugely dangerous, however, that they should never, ever occur — like operating a crane close to an energized power line.  In the case that we will review, which resulted in the gruesome death of one employee and serious injuries to another, there were at least four employers and six supervisory personnel working on site.  The ALJ found there had never been any meetings to discuss safety procedures with respect to a high-voltage power line crossing a portion of the jobsite.  The employees, including the experienced crane operator, did not know the voltage of the line, or what distance was required to be maintained between the crane boom and the line.  Some employees were wholly unaware that the power line was there at all, even though it was in plain view.  The multiple failures in planning, training, communication, and paying attention were astounding (and lethal).

While the developer was not the sole party responsible (we assume other employers were cited, but chose not to contest their citations) the respondent in the decision we found was Century Communities, which was developing a residential subdivision near Atlanta.  Century had supervisory control over the site.  Its three construction managers (Gaddis, McGinnis, and Schlosberg) and its finishing manager (Harden) all had authority to correct. or to order subcontractors to correct, safety or health hazards.

Century had engaged JLNC, the crane services subcontractor, on the project.  Century also hired E&N Construction as the framing contractor, and E&N hired about 10 subs to performing framing services.  One subcontractor, JP General Construction (“JPGC”) was working on Lot 51, where the incident occurred.

As of the date of the occurrence, about 47 of the 61 residential lots comprising the development had been completed.   Gaddis, one of Century’s construction managers, had primary responsibility for Lot 51.

The construction plan for all lots required the use of a crane to lift the large trusses and other items into place.  A 119 kV power line ran over Lot 51 and adjoining Lot 50. 

At about 7:00 a.m. on the day of the occurrence, Shadwick, a JLNC employee and experienced crane operator, arrived at Lot 51 with a hydraulic boom truck crane.  He set the crane up for operation, and deployed the outriggers and stabilizers.

Century supervisors McGinnis, Hardin, Gaddis and Schlosberg all arrived at the site shortly after Shadwick, as did E&N owner/foreman, Pulido.  Palma, the owner of JGCP (E&N’s sub for the framing work on Lot 51) arrived about 8:20 a.m., with five employees, including the “Decedent” and the surviving injured employee, “Employee #1”.  The latter two first worked with Shadwick, the crane operator, to  successfully lift small trusses on the left side of the crane.

For some reason, the large trusses for the house on Lot 51 had been moved from the extreme left side of the lot, to a place at the far right side, beneath the overhead power line.  The Decedent and Employee #1 connected the chain and wire slings to the large trusses on the ground.

At about 8:52 a.m., Shadwick began operating the crane, to lift one of the large trusses.  As the boom swung to the right side of the crane, the hoist cable, or the boom, came within 20 feet of the overhead power line.  There were two explosions, in quick succession, and the Decedent and Employee #1 were struck by fireballs and set aflame.  Both men were airlifted to hospital in Atlanta, where the Decedent suffered for more than two weeks before expiring.  Employee #1 survived.

OSHA cited Century, as the controlling employer, for failure to protect its subcontractors’ employees from electrical hazards, either by seeing to it that the line was de-energized, or by ensuring that no part of the crane, rigging and lifting equipment approached nearer than 20 feet from the 119 kV line.

Century contested the citation, asserting (1) that none of its own employees were exposed to the hazard; and (2) lack of knowledge of the violative conduct.  A trial before an administrative law judge was had, the citation was affirmed, and OSHA’s recommended penalty of $12,675.00 was approved.

Century’s first “defense” was curtly dismissed, as under the OSH Act “an employer owes a duty . . . not only to its own employees, but to other employees at the worksite when the employer creates and/or controls the cited condition.” The ALJ rejected, also, the defense of lack of knowledge, finding that overall the evidence showed that Gaddis (or at least one Century supervisor) had stopped by Lot 51, and had seen the crane positioned where parts of the equipment, load line or load could get nearer than 20 feet to the power line, which was in plain view.

Conspicuous in the ALJ’s decision was the extent to which hardly anybody was communicating, or even paying attention.  The crane operator did not speak Spanish.  On the day in question, he worked without his bilingual “negotiator” and rigger, on whom he relied to communicate with the Spanish-speaking crews.

Shadwick, the crane operator, did see the power line, but went ahead, despite the large trusses having been moved to a place much closer to the power line.  He testified that no one from Century held a safety meeting with him, or cautioned him about the placement of the crane so close to the power line.  He did not know the voltage of the line, or the correct safe distance.

Because of the weight of the evidence to the contrary, the ALJ gave “no weight” to testimony by Gaddis, Century’s manager in charge of Lot 51, that he had discussed the power line with the subcontractors, had not passed by Lot 51 that morning, and did not know that the crane was coming on that day.

Century construction manager McGinnis was responsible for the lot adjoining Lot 51, which also had the power line overhead.  He did not know the voltage of the line, or the minimum safe distance to be maintained.  He denied seeing the crane set up on Lot 51.

Schlosberg, another of Century’s construction managers, admitted he knew of the power line running over Lots 50 and 51, but denied knowing the voltage.  Schlosberg, who was not in charge of Lot 51 (although he did have authority to correct safety hazards) testified that he “wasn’t paying attention to a crane.”  Hardin, Century’s finishing manager, although onsite that morning, was at a place from which Lot 51 could not be seen.

Pulido, who owned E&M and had hired the crane services company, denied he ever met with Century’s managers for pre-construction safety meetings, or discussed the power line above Lots 50 and 51.  While admitting having driven past Lot 51, and observing the crane on the day of the accident, Pulido denied he knew of the power line at any time prior to the accident.

“Employee #1,” the injured survivor of the accident, denied that anyone from the developer, or the crane company, ever spoke with the framing crew about the power line.  He did not know the minimum safe distance, and denied noticing the power line prior to the accident.  Another member of the framing crew denied discussions about the power line; and, while he did see it, and inferred from its height that it was a high-voltage line, did not know the voltage, or the minimum safe distance.  Since the crew had arrived late on the morning of the accident, he testified, “we didn’t even think about that.”

Whenever cranes are to be used on a project, the site must be inspected for overhead power lines.  Advance planning, training, and communication (perhaps including the use of electronic listing software, and cellphone photography to make it impossible for overhead power lines to go unobserved) are keys to avoiding potentially fatal accidents.

While the OSH Act does require that you train your employees concerning recognized hazards and OSHA compliance, it doesn’t prescribe a comprehensive, formal safety program.  Nevertheless, our view is that it’s highly desirable to have one.

If your budget will not support a full-time Safety Director, the alternative we recommend — which has proved effective in many smaller companies — is to make all of your company’s employees your “Safety Directors,” with everyone having an active role in ensuring workplace safety.

Employees should have a seat at the table when management sets goals, and formulates your company’s safety program.  They should also be involved in the development, implementation, and evaluation of health and safety training programs, and identifying ways to improve them.

To maximize employee participation, strive to assure them that their involvement is desired, that their proposals will be heard, and that there will be effective reporting procedures.

To eliminate or reduce barriers to participation, try to ensure that employees can take part, regardless of their skill level, education, or language.  If you want a sustained level of participation, provide frequent feedback, to show that employees’ safety and health concerns and suggestions are being heard and addressed.  Meetings that involve employees should take place during regular working hours, and both supervisors and ordinary workers should be made aware that both the law and company policy forbid retaliation for reporting injuries, illnesses and hazards, participating in a company safety program or activity, or otherwise invoking employee protections under OSHA.  The area where you have minimum wage and other postings of information required to be imparted to employees should display, also, a copy of the “Section 11(c) Fact Sheet,” which advises employees of the “whistleblower” protections they are afforded by the OSH Act.

Once you have enlisted as “safety directors” so many of your employees as display any interest in acting as such, you can proceed to identify and assess those hazards as may exist on your current jobs, or that are commonly encountered in your trade.

This requires, first, the collection and review of information concerning hazards present, or likely to be encountered, in performing work.

Employees, including members of the rank and file, should be involved in identifying hazards in regularly-performed tasks, and implementing measures to mitigate them.  Safer work practices should be defined, documented, and made known to all affected employees.  Employees (not only supervisors) should be involved in site inspections, close call/near miss investigations, and the training of employees and new hires.

After an initial inspection has been made, there should be periodic follow-up inspections, to identify new or persisting hazards.  Injuries, illnesses, close calls, and near misses should be investigated, to determine the nature of the underlying hazards, their causes, and gaps in your safety program.

Management and employees should, together, brainstorm foreseeable, if uncommon, scenarios (fires, workplace violence, weather emergencies, infrequently-performed maintenance operations, restarts after equipment shutdowns, etc.) to plan, in advance, how to respond to such scenarios.

Health hazards (typically more complex than physical safety hazards) may require special attention.  Things such as chemical hazards, excessive heat or noise; exposure to pathogens; and ergonomic risk factors (e.g., heavy lifting, repetitive motions, etc.) should be identified, via inspections and testing of the air on jobsites, a review of operations, and medical data, where available.

Procedures should be prescribed for investigating workplace incidents.  Investigators should include representatives of management, workers, and persons with the technical competence to identify and analyze root causes.  The results of investigations should be communicated to managers, supervisors and workers, and preventive measures implemented.

As information is compiled concerning hazards actually existing, others typical in operations by your trade, and ones which, although infrequently encoun­tered, are foreseeable, you need to assess the universe of such hazards, and consider the likelihood of each of them occurring (or recurring), the severity of potential outcomes, and the number of workers actually or potentially affected.  Once you have done that, you need to prioritize the risks identified, and address them accordingly.  Keep in mind that OSHA imposes a continuing obligation to control all recognized, serious hazards. 

 The next stage in developing your program is hazard prevention and control.  This requires you to target hazards that are characteristics of the work you do, and to review the relevant OSHA standards, NIOSH publications, industry consensus standards, manufacturers’ literature, and engineering reports, to identify potential control measures.

Solicit input from your workers, who will often be the best sources for insights into how hazards can be controlled.  Using a “hierarchy of controls,” select control measures for each of the primary hazards you have identified.  Then, make a second list, addressing foreseeable emergencies and non-routine operations.

The “hierarchy of controls” has, at its topmost level, the physical removal of the hazard.  This will usually be the most effective response, but often the most difficult, impactful, complicated, and/or expensive.  Beneath removal is replacing the hazard, which, in some cases, may not be quite as effective as removal, but will get the job done.

Next in the “hierarchy” is to isolate employees and others from the hazard.  It may be impracticable to remove or replace hazardous substances, equipment, or activities, but sometimes you can attenuate the risk of harm, by keeping people at a distance, or minimizing the number of persons exposed.  Administrative controls, or changing the way people work (limiting their time exposure to high levels of noise, for example) if not as effective as replacing noisy equipment, may keep risks within prescribed acceptable limits.  Finally, protecting workers with Personal Protective Equipment, may be the easiest, and cheapest, effective solution.

After you have identified hazards and potential controls, and selected measures for each of the primary serious hazards that your employees face, then you should integrate that information into a coherent plan, fixing priorities, and assigning responsibilities.  Starting with the most dangerous and frequently-encountered hazards, work downward, and have a separate set of controls for emergencies and non-routine operations.

After you have developed and implemented your hazard-control plan, you need to follow up, to ensure that controls have been properly implemented, and that they remain effective.

Managers, supervisors, and workers must be trained regarding safety and health policies, goals and procedures, contacts for questions or concerns, the reporting of hazards, injuries, illnesses, and close call/near miss occurrences, and rights and responsibilities under the Act.

Employees must, of course, be trained concerning the hazards they may encounter, and how the same are to be avoided or controlled.  This must be done in a language and at a level of sophistication that your workers will comprehend.  Stress that the program works only in the measure that all interested parties remain involved, and actively encourage suggestions, the communication of concerns, and the reporting of injuries, incidents, and hazards.

Your program should, finally, be shared and coordinated with the efforts of host employers, contractors, and staffing agencies, and be constantly re-evaluated to ensure participation, effectiveness, and ways it can be improved.

The construction industry continues to be a fertile field for the small entrepreneur, and an engine of upward mobility for immigrant and low-income populations.  And, if OSHA (approaching its fiftieth anniversary) has not yet fully achieved Congress’s stated purpose of providing every working man and woman with a safe workplace, we should take considerable satisfaction that the number of workers killed and seriously injured in workplace incidents has dropped sharply (as it has).

The entrepreneur looking to start a small contracting firm, however, faces significant challenges and competitive disadvantages in operating his or her business in a manner that will minimize injuries in what remains a hazardous sector, while keeping the OSHA inspector at bay.

Especially if you aspire to outgrow small, home improvement jobs and move up, say, to becoming a subcontractor on significant commercial or public projects, to compete successfully, you need to build a record and a reputation for safe operations.  However, you may not have the funds to hire a full-time Safety Director or industrial hygienists with master’s degrees, or to bring in consultants to evaluate the hazards of each new project and customize training for your employees accordingly.

How, then, does the small or startup contractor begin to establish a sound safety program?  That will be the subject of this month’s, and next month’s, installments.

A first step, an essential one although obviously not sufficient of itself, is that every co-owner and senior manager in your company must firmly resolve that, as long as your company is in business, sending all employers home every night, alive and uninjured, will always be a top priority.  Good intentions don’t get the job done, of course, but your company’s commitment should be in writing, signed by all owners and senior personnel, and communicated not only to office and field employees but, at appropriate times ,to subcontractors, staffing agencies, temporary employees, suppliers, customers, and visitors.

While your field supervisors are critical players in a successful health and safety program, leadership and the commitment to safety must always be seen as coming from the very top.  Everyone from the CEO on down must faithfully observe the safety rules that the rank-and-file are expected to follow, and most meetings concerning operations should not only  have an agenda item devoted to health and safety concerns, but that item should be at, or near, the top of the list, not an afterthought.  Rank-and-file should never see the company president in a bucket lift while not tied off, or a project superintendent without a hard hat, or going down into an unshored trench.  You have to lead by example.

Something else you need to do from the start of operations is to plan for foreseeable emergency situations, including but not limited to fires, weather emergencies and natural disasters, serious injuries and other medical emergencies, incidents of workplace violence, the collapse of walls or ceilings in structures, and releases of chemicals and hazardous substances.  Don’t go on your first job without a well-stocked first aid kit, and without knowing how to summon first responders and get injured employees to an emergency room or urgent care facility without delay.

As your company grows, goals and expectations regarding safety and health should be formalized and communicated to all managerial and supervisory personnel, and expectations prescribed for all employees and for the program overall.  OSHA standards relevant to the work that you do should be studied, and compliance made a priority.  However, while avoiding OSHA violations should certainly be a high priority, that should always come behind your #1 top safety priority, which is avoiding serious injuries and fatalities.  It’s probably unrealistic to expect to stay in business for ten, twenty or thirty years without being cited for an OSHA violation now and then (especially if you work on larger projects, which attract more attention from OSHA inspectors).  You should aspire, however, to avoid fatalities, and you should strive for 100% success in avoiding deaths and serious injuries.

Management should develop plans to monitor OSHA compliance (with special emphasis on perennial, and deadly hazards, such as falls), implement and improve employee training, enforce safety rules, and involve employees in reporting issues as they arise.  Assessment of success in these areas should be continuous, and if shortcomings are reported or detected, appropriate personnel should be assigned to devise and implement remedial measures.  Such individuals should report directly to senior management.  If appropriate (for example, if you experience a spate of injuries or “near misses”) it should be announced, company-wide, that shortcomings have been discovered, and that correcting them must be given a high priority.

A safety program cannot succeed without resources being allocated to it.  That means not just safety as a budget item, but time must be allocated in workers’ schedules for training and further participation in the program.

It’s essential, also, to expect success and to require accountability.  Establish ways for all employees to communicate freely, and often, about successes and problems encountered.  It’s critical that employees (some of whom may be immigrants from cultures in which worker safety is not exactly a priority, and speaking up can get you fired, or worse) have confidence that there will be no retaliation if they report problems.  Retaliation against workers raising safety issues with their employer, or reporting them to OSHA, is unlawful.  Not only should you have a policy of non-retaliation, but you should have an “open-door” policy.

Workers should be assured that reported information will be used only to make safety improvements, and when improvements are made, based on information imparted by employees, that should be made known, so that your employees will know that their input is welcomed, and has a positive impact.  Workers should be empowered also to order, or at least request, temporary shutdowns of operations they believe to be unsafe.

Workers can participate in your program in a meaningful way only if properly trained.  OSHA-sponsored programs are useful, but not really sufficient.  Regular toolbox talks are essential, and training must (as a matter of effectiveness, as well as OSHA compliance) be in languages understood by your workers. Apropos of this, if you’re running a construction company in the Greater NYC area, chances are good that some of your employees have Spanish as their first language.  Here’s a website that has a useful set of “toolbox talks” in both English and Spanish:  https://www.cpwr.com/publications/toolbox-talks.

In next month’s continuation, we’ll talk about further things you can do to make health and safety a company-wide activity, involving every employee, and how you should go about identifying and controlling conditions that are non-compliant with OSHA, or otherwise hazardous.

Summer alas has flown, and we are now moving into the fall, with winter and its cruel conditions just over the horizon.  Working in winter weather presents real challenges in terms of safety, and you need to plan ahead, if you are to meet those challenges successfully.  Tasks, projects, and jobsites should be evaluated for potential exposure to harsh winter weather, and plans made and employees trained accordingly, in advance.

PPE, in the form of clothing, footwear headgear and gloves appropriate to the temperature and prevailing weather conditions, is probably the most critical line of defense against stress from winter weather.  Clothing should usually be layered, and the head, hands and feet appropriately covered.  Fabrics that wick perspiration away from the skin are a good idea for the first layer.  It is indispensable to train employees on the proper use of protective clothing and equipment, and other precautions to take during cold-weather work.

To protect against both frostbite and slips, trips, and falls, insulated, waterproof or water-resistant boots or overshoes with good rubber treads should be mandatory for your field employees.

Employees should be instructed to keep an eye out for patches of ice, and to exercise heightened caution in mounting or dismounting vehicles or equipment.  Areas in which equipment and tools are stored should be kept clear of snow, ice or mud accumulations.

Especially when there is snow or ice on the ground, winter is a time for particular care in driving (and operating equipment).  Speeds must be reduced to those appropriate in light of road conditions (and reduced visibility, if applicable).  Drivers should be advised that foggy conditions create a visual illusion of traveling more slowly than you truly are.  Also, tailgating is especially dangerous when traction is impaired due to roadway conditions.

Workers should be advised to consider increasing their caloric intake by 10-15% in sub-freezing conditions, and to drink plenty of water and warm, sweet fluids.  Workers generally, and especially older workers, should be encouraged to consult their physicians if they have diabetes, heart disease, high blood pressure, or other health conditions that might make them more vulnerable to dropping temperatures, or restrict their working in cold weather conditions.  Alcohol consumption — never a good idea when working on a construction site — is especially bad in wintertime, since it contributes to dehydration, enhances heat loss, impairs judgment, and reduces sensitivity to cold.

To the extent possible, outdoor work in winter should be scheduled for the warmest hours of the day.  Weather forecasts should be monitored regularly (as in all seasons) to avoid your being caught off-guard by the unexpected arrival of severe weather.  If a blizzard or major storm should be approaching, get the work covered, all equipment etc. secured, and your workforce home (or at least on the roads, if the same are passable) before the storm arrives.  Roadways into and out of the jobsite must be kept cleared and opened at all times.

At the beginning of each shift, time should be built in, to permit stretching, and at least a 5-minute warm-up, before anyone ventures into the cold outdoor conditions.  This helps to counteract the tendency of muscles to tighten up and contract in the cold (and improves performance, while helping to avoid injury).  Another important thing to do at the beginning of every shift is to have your supervisors inspect the site, to check for, and report on, potential problems related to snow, ice, or actual or anticipated severe weather or extreme temperatures.

Evaluate whether engineering controls (barriers to shield against the wind, space heaters, insulating material on metal equipment handles, etc.) could be deployed to good advantage.  Portable heaters, although potentially useful, can create hazards.  Heaters should be inspected by competent technicians before use, and used in the correct manner, in accordance with the manufacturer’s instructions.  Among other things, heaters should be placed on fire-resistant surfaces with plentiful ventilation, with their hoses unobstructed and clear.  Combustible materials should be kept away from them.  Propane tanks should be placed upright on stable surfaces.  While securing them is important, the use of metal to do so is probably not a good idea, as metal on metal can result in sparks.

Even in favorable weather, falls remain the #1 danger in construction.  The danger is compounded in cold weather, especially if it is necessary to work on elevated surfaces where snow and/or ice may be present.  Without minimizing the dangers from slip-and-fall occurrences on snowy surfaces at ground level, work on elevated surfaces should be avoided during winter weather conditions, if at all possible.

If roofwork or other work on elevated surfaces absolutely must be performed, special controls must be put into place.  You need to have a thorough and conscientious check of all platforms, fall protection and edge protection, and the work surfaces need to be de-iced.

It should go without saying that, if there is the slightest weakness in your fall protection training, or in the enforcement of your work rules requiring fall protection, you need to correct it before permitting anyone to go on a snow-covered roof in windy winter weather.  Consider doubling up on fall protection, for example by deploying safety nets, in addition to having workers use lanyards and harnesses.  Winter is also a time for redoubled caution (and perhaps a toolbox talk or two) in the safe use of ladders, and avoiding energized power lines.  Ladders, of course, as well as scaffolds must be well-maintained, protected and kept clear of snow and ice, and covered at the end of the shift.

Walkways in general (whether elevated or not) should be kept clear of snow and ice, and salt or sand applied and re-applied, to reduce the danger of slip and fall incidents.  Overhead surfaces should be kept clear or snow and ice that might fall on persons working below.  Icicles should be (carefully) removed if practicable; and, if it is not practicable to remove them, areas should be roped off, to prevent anyone having to work or walk beneath them.  Hoses should not be left running, as the water will likely freeze, and increase the slip hazard.  Areas that might have unseen ice or snow underfoot should be kept well-lighted.

Entrances to premises (especially access steps) and handrails should be kept clear of snow and ice, also well-lighted, and workers instructed to exercise caution in entering and exiting premises.

Sheltered facilities (heated sheds, trailers and/or vans) should be provided, where workers can go to warm up, get warm beverages, and dry or change their clothing.  It is important to change out of wet clothing at once, in order to avoid hypothermia and frostbite.  Workers should be educated concerning symptoms of cold-related stresses (numbness, shivering, frostbite, and trenchfoot, a/k/a immersion foot) and instructed to check their extremities at regular intervals, to detect numb or hard areas that might indicate frostbite.  First-aid equipment and supplies should be kept close at hand, and telephone numbers for emergency assistance (medical and other) should be on every supervisor’s cell phone.

Workers should generally work in pairs in severe or cold weather, and told to take prompt action if they experience, or see anyone else who appears to be experiencing, symptoms of cold stress, such as changes in behavior patterns, numbness in the extremities (including cheeks, ears, and the tip of the nose), changes in skin or lip color, or shaking.  Affected individuals should be brought indoors as soon as possible, and emergency medical attention summoned if necessary.

 As with most health and safety precautions, advance planning, preparation and training for performing construction work safely in wintertime are essential.  While preparedness in responding to potential cold-related health emergencies is paramount, you need to conduct appropriate training in advance of the onset of winter weather, and underscore the main points (PPE, attentiveness to possible symptoms, extra diligence in fall protection, the safe use of scaffolds, ladders, etc.) repeatedly.

Finally, resign yourself to the reality that work will proceed more slowly in cold, snowy winter conditions than when conditions are ideal.  It’s a safety requirement, and an inevitability as well. 

For several years, there have existed auditing programs that can be used with smart phones and tablets to create checklists.  While you may not be very knowledgeable about checklists, as the same are used in industry, you’ve probably seen commercial pilots, if only in the movies, going through their pre-flight checklists (which is just one example).

Checklists, in fact, have long been used in many industries, but over the past few years, software developers have  digitized the old-fashioned paper checklist, and put it on subscribers’ smart phones and tablets.  From there, the digitized checklist can be accessed and used (together with the digital camera that nearly every smart phone and tablet now has).  Employees can now more easily use checklists to audit information of almost any kind, and  the checklists can be modified and updated more conveniently, and reliably, than the paper forms we used to use.  Once completed, the audits, together with photographs taken with the electronic device’s camera, can be delivered instantaneously, and as often as desired, to senior management at the home office (and to any other authorized recipients).

Once delivered, the audit reports are searchable electronically, and can be stored and made accessible digitally.

These programs are readily available, and a number of them can be downloaded for free (although most require a subscription, at moderate cost, at least for access to the more muscular features).

Companies are using “digitized checklist” technology for a huge, and growing, variety of applications.  To cite just a few examples, airlines use them to monitor preflight inspections and adherence to aviation regulations.  Retailers use them to curb stock losses.  Event management companies use them, to keep track of conditions and occurrences at key locations at the event site.  Hotel chains use them, to ensure that rooms are properly cleaned, and facilities well-maintained.

Until recently, many quality control, auditing, and oversight operations, in businesses of all kinds, required the dispatch of an employee from the home office, delays, expenditures for travel, lodging and meals, and reports (perhaps accompanied by photographs, developed over a period of several days at the local photo shop) to be drafted upon the auditor’s return to the home office.

Now, thanks to these relatively new programs, much of the information can be gathered onsite, audits can be performed daily (or as often as desired) and employees with cell phones or tablets can function as the “eyes” of senior management.  Reportedly, while there does exist a “learning curve,” and modest investments in training, technology and equipment are required, even adults too ancient to have grown up using smartphones can be educated to use the programs.  The latter are (as the designs mature) flexible, and readily modifiable, as the users’ needs may change.

Construction companies can use these programs to conduct safety audits, and to monitor OSHA compliance.  Whereas, historically, senior management seldom became aware of safety problems unless and until an OSHA inspection (or a serious injury) occurred, it’s now a simple, paperless, and not very time-consuming task to have a supervisor, armed with a cell phone, walk the site weekly, or even daily, and use the current checklist, to ensure that the safety rules and OSHA standards relevant to the employer’s trade are being complied with.  The results can then be instantaneously transmitted to the home office, together with high-resolution photos that show both safe practices in operation (as well as any problems).

In addition to being paperless, faster, and more efficient, the “digitized checklist” promotes accountability for purposes of auditing and supervision.

The information gathered can be used company-wide for training purposes, and to demonstrate due diligence on the employer’s part to monitor OSHA compliance, detect and correct any hazards or non-compliant conduct.  That, in turn, may help in the event of an OSHA citation to establish that the employer did not have constructive knowledge of a violative condition (which showing requires due diligence) and, in a given case, the defense to an OSHA citation, based on “unavoidable employee misconduct.”

Although, increasingly, the usefulness of the digital checklist technology for training extends beyond compliance to improved performance, in terms of OSHA compliance, the adage that a picture is worth a thousand words is especially meaningful.  There exist a great number of OSHA construction standards, and while those that have particular relevance to your trade may be less numerous, OSHA’s “multi-employer doctrine” in effect makes you, as an employer, responsible for any and all violations to which your employees may be exposed.  That implies that, while, obviously OSHA’s excavation standards are more fundamental to, say, a sitework contractor than a roofing contractor, every trade has potential OSHA responsibility for any and all conditions as may exist at all places on the jobsite to which their employees have access, even if it’s not where their assigned tasks are performed.

Of OSHA’s myriad standards, many are complex, or require knowledge of equipment, activities or specialized matters that are foreign to many workers.  The abundant use of technical terms, acronyms, and jargon (both in the standards and in safety training) may also make standards all the more difficult to understand and comply with.  We often recall a study made a few years ago, in which graduate students of construction engineering at a prominent university were given the OSHA ten-hour course, but, when tested afterward, were found to have absorbed a shockingly small amount of the information.

If master’s level students struggle to “get” OSHA safety training, consider that your workforce probably includes many employees who are not college graduates and/or and whose first language is not English.  Thus, with all respect to the classroom and the toolbox talk, a purely verbal approach to safety training is of dubious efficacy.

Thanks to the coupling of photographs to the digitized checklist, however, it’s now possible — in fact, it’s easy — to take photos from your actual projects that illustrate not only hazardous conditions, but safe practices, and what is meant by key OSHA regulations.  Photos determined to be useful for training purposes can be blown up and used in the classroom, or even forwarded to what we would estimate to be the 98% of your employees who have smart phones.

Consistent with the developers’ early expectations as this technology first came to market, it has been shown to promote the performance of key tasks, on time, and done in conformity with OSHA standards (or whichever standards may be relevant to the subscriber’s business).  Information from the digitized checklist can be gathered and shared faster, more flexibly, and more economically than on paper.

As “digitized checklist” technology has matured over several years of use and has been adopted by larger numbers of companies in an expanding variety of sectors, benefits exceeding expectations have been noted.  This is particularly true in the attitude and behavior of many subscribers’ employees, and how their use of the technology is changing how they relate to management.

Generally, as employees surmount the “learning curve” and any initial discomfort they may have with this relatively new technology, they perceive a decrease in the distance between their work “in the field,” and decisions and policies decided on in the executive suite of the home office.  Not only in construction, but in the broad array of companies now using digital auditing technology, workers find themselves taking an increasingly greater role in identifying problems and issues affecting the success of the business, and in proposing solutions or improvements.

Information flowing to management is, thanks to the recent technology, more reliable, more current, and originates from a larger range of sources, then previously was the case.  Workers, in turn, feel empowered, which is a boost for employee morale, job satisfaction, and commitment.

While we have not found formal studies verifying (or contradicting) claims that the “digitized checklist” has improved safety outcomes in construction companies that are using it, such claims are likely true. 

At the very least, in addition to being paperless, faster, and more efficient, the “digitized checklist” promotes accountability, for purposes of auditing and supervision, and a culture of safety in your company.

Which statutes and regulations should be the basis of a New York construction company’s safety program?  OSHA has the highest profile in the construction safety realm, with its panoply of standards specific to the construction industry, and a permanent emphasis on enforcing them.

As most of you know from experience, violations of OSHA rules often result in citations, which, unless successfully contested, carry monetary penalties, regardless of whether anyone suffered an injury or illness related to the violation.

Criminal liability under OSHA is limited to circumstances in which one or more fatalities results from a “willful” OSHA violation.  Historically, criminal prosecutions have been rare, but they have reportedly become somewhat more frequent, especially where the employer has filed false paperwork to try to cover up the violation, or simultaneously violated environmental laws, or has exhibited shockingly egregious disregard for employee safety.

Monetary penalties for OSHA violations are paid to the agency, and not as damages for bodily injuries, if any, as the violator’s employee(s) may have sustained as a result of the violation.  Also, in personal injury or wrongful death lawsuits arising out of incidents in which there was an OSHA citation, the fact that OSHA was violated does not establish negligence per se (although it may be found to be some evidence of negligence, provided that it had some causal link to the occurrence that produced the injury).

Nor does an OSHA violation, of itself, provide a worker who was exposed to the hazard a private right, separate and apart from bodily injury, to bring a lawsuit for money damages, or injunctive relief, in state or federal court.

While training and compliance with OSHA’s standards are essential, the OSH Act is not the sole source of responsibility (and potential liability) for jobsite safety in New York.

Where an employee suffers an on-the-job injury or illness, in most cases the same will be subject to the Workers’ Compensation Law (all states have analogous, although not identical, laws).  Workers’ Comp is an early twentieth-century reform, which provides for workers to receive compensation for lost wages and medical expenses (and the workers’ estate or his heirs to receive compensation for wrongful death) for most job-related injuries and illnesses.

While Workers’ Compensation laws differ from state to state, generally the employer must provide insurance, and compensate an injured worker without regard to fault. (New York has an exception for injuries solely caused by the worker being under the influence of alcohol or controlled substances).  The injured worker, although relieved of the necessity to maintain a lawsuit (and await a judgment, before receiving any compensation) and prove the employer’s negligence, loses the right to sue in court.  Disputes, e.g., concerning whether the injury was work-related, are decided by an administrative law judge, employed by the state’s Workers’ Compensation Board.

The social compromise under Workers’ Compensation is that the injured employee’s compensation is surer, speedier, and does not require him to prove that it was the employer’s negligence that caused his injuries.  The downside, from the worker’s point of view, is that the compensation he receives will be limited by statute and, in most cases, less than a jury might award, were the employer’s negligence to be proven.

While, in theory, Workers’ Compensation is generally supposed to be the injured employee’s sole recourse against his employer, this exclusivity can often be circumvented by the injured plaintiff suing the premises owner, the general contractor, the manufacturer and vendor of any equipment as may have been involved in the accident, etc.  In such a case, the employer may be brought into the litigation, as a third-party defendant, by other parties claimed to be liable (although the employer’s liability to indemnify third parties may be limited by statute).

New York is notorious for its “Scaffold Law,” Labor Law § 240(1). This statute applies in cases involving falls, falling objects, and height differentials in construction and related activities, where the mishap occurs due to the employer’s failure to provide necessary safety equipment.  It is much detested in the industry because, whereas New York law subjects all other personal injury plaintiffs to having their damages reduced in proportion to their comparative negligence (as found by the trier of fact) plaintiffs in Scaffold Law cases do not have their judgments reduced (unless it be found that the employee’s negligence was the sole proximate cause of his injuries).

In addition to OSHA violations, injuries and illnesses subject to the Workers’ Compensation Law, and the Scaffold Law, there are at least two additional sources of potential liability for injuries to workers related to construction work in New York.

Of these, the least well-known is the Industrial Code, a mostly-vestigial set of safety rules left over from the days prior to OSHA.  While the Industrial Code specifies certain safety requirements on contractors and owners involved in construction, excavation, or demolition work, we are not aware that the Legislature or New York’s Labor Department regularly updates it, or has employees whose job it is to enforce it.

A plaintiff pursuing damages for injuries allegedly due to the violation of any provision(s) of the Industrial Code is limited, moreover, to those provisions deemed sufficiently specific so as to impose an affirmative command.

The remaining legal basis for liability to injured construction workers for damages due to personal injuries on the jobsite is N.Y. Labor Law § 200, essentially a codification of the common law on the subject.  It requires workplaces to be “constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein[.]”

 As observed by the New York Appellate Division in Bradley v. HWA 1290 III LLC (2018)  claims under Labor Law § 200 fall under two categories:  those arising from an alleged defect or dangerous condition on the premises, and those arising from the manner in which the work was performed.

Bradley involved an experienced elevator maintenance mechanic, employed by the company retained by the building owner to provide full-time, on-site elevator maintenance.  Mr. Bradley was found dead in a motor room, and was determined to have been electrocuted while working alone, when his arm came into contract with an electrical transformer.  Although enclosed in a cabinet, the transformer did not have an additional cover.

When the defendant building owner moved for summary judgment, the motion court found the lack of a cover on the transformer (claimed to be contrary to a standard of the American National Standards Institute) to be sufficient evidence of a dangerous condition as to preclude summary judgment for the premises owner.  In addition, a flashlight having been found near the remains, and a coworker (not present at the time of the accident) having stated that the lighting in the motor room “wasn’t that good,” the possible insufficiency of the lighting was held to be an added condition that barred judgment for the defendant without a trial.

On appeal, a panel of the Appellate Division voted 3-2 to reverse and dismissed the action, as the defendants had not designed or manufactured the cabinet, or any of its components.  The Appellate Division found also that the ANSI standard lacked the force of law, and testimony by an elevator consultan that covers were not required because the transformers were in an enclosed cabinet (and that the cabinet had passed repeated Building Department inspections) was held to be conclusive.

As for the lighting, the helper’s testimony was not sufficiently persuasive to create a triable issue of negligence for a jury, because there was no proof that the illumination where the accident took place was dimmer than allowed by Code.

Since even the courts find it hard to agree about what conditions constitute safety hazards giving rise to potential liability for personal injury or wrongful death, prudence mandates frequent, well-documented safety inspections.  And, if you get sued, the credentials and persuasiveness of your trial experts may make all the difference in the outcome.