Author: Thomas H. Welby

The construction industry is unique, in that — leaving aside very small projects, and some limited to upgrading one or two building systems — on most jobs, there are at least a dozen, and at times literally scores of trades, often with large regional firms working shoulder-to-shoulder with tiny “mom and pop” subcontractors, the trades frequently having wildly disparate modes of organization and management styles.

The responsibility to ensure employee safety and health is shared among the owner, the general contractor, and every employer whose employees may be exposed to unsafe conditions at the site, or who has the responsibility and authority to prevent, detect, or correct hazardous conditions.

Not only do employers on a construction site often have varying management styles, but their employees may speak an array of languages, and trades may vary greatly in the diligence and resources devoted to their health and safety programs.

Since, typically, the general contractor is formally in charge of the jobsite, if you are a general contractor, you may be in the unenviable position of having to keep a large number of employees, employed by a large number of trades, on the “straight and narrow,” in terms of safe work practices and OSHA (and state law) compliance.

Conversely, subs cannot abdicate responsibility for the safety of their employees to the general contractor, and they remain responsible for violative conditions (1) created by their own employees, and (2) to which their employees are exposed.  This remains so even where a subcontractor has but a handful of employees, and little “clout” in determining how the project is managed.  If the general contractor is lukewarm in its approach to employee safety, at times the small subcontractor, as a practical matter, will be hard-pressed to do more than to surveil the safety and OSHA compliance of its own workforce.

Another factor complicating the maintenance of high standards is the proliferation of staffing agencies supplying workers to the construction industry.  These firms vary in how much safety training they provide, and even the better-trained workers seldom have the close relationships with company safety managers and other supervisors that foster the faithful observance of safety rules.

Communication and coordination are the key elements in ensuring effective safety practices on the multi-employer jobsite.  Communication, among other things, entails study and identification — before the physical work of the project begins — of the principal hazards likely to be encountered over the life of the project, and the planning of measures to avoid or control them.  It is important, also, as subcontractors (and, if applicable, staffing agencies) are added to the project, to identify and to have e-mail addresses and cell phone numbers for safety managers or key supervisory personnel from each employer.  This is important, not only for the general exchange of safety-related information, but for reporting hazardous conditions, reporting incidents, and consulting when decisions affecting safety issues must be made quickly.

It is also indispensable to know the location and alternate routes to the nearest emergency room or acute care clinic, and the means to summon first responders.  Since non-supervisory employees are commonly prohibited from carrying cell phones while working, make sure that procedures are in place to summon emergency personnel, without delay, in case of need.  The means should also be at hand to contact the general contractor, owner, and OSHA to get information, report an injury, illness, or incident, or if a safety concern arises.

Usually, the general contractor has the leading role in devising, implementing, and maintaining the project’s health and safety program.  These responsibilities may be spelled out in contract documents, and are usually addressed in pre-construction meetings.  The general contractor typically sets up procedures, whereby it gathers and communicates information needed by each employer to assess and address hazards, while the subcontractors furnish information concerning injuries, illnesses, hazards or concerns reported by their respective employees (or discovered during inspections, inquiries or analyses performed by them).

Where unanticipated operations must be carried out, due to such things as defects discovered in installations, weather events, or natural disasters, it is usually the general contractor (often in collaboration with the project architects or engineers) who collects the relevant information, conducts any necessary analysis, and communicates to all interested parties what must be done to respond to the situation.

Since the complement of trades working on the project usually changes as the work progresses, membership in the “safety committee” will change correspondingly, and it will become necessary to assess from time to time (particularly as major milestones are reached) what work has been completed, what hazards are currently extant at the site, and what counter-measures are indicated, to avoid or neutralize them.

Communication includes, among other things, evaluating and resolving any potential conflicts before work starts.  It is desirable that all subcontracts include express provisions requiring compliance with OSHA and all other safety laws and regulations, and cooperation with the general contractor and other subcontractors in matters affecting employee health and safety.  Pre-construction meetings are additional propitious occasions to clarify key safety issues, measures indicated to combat hazards already identified, and lines of authority and communication regarding safety matters.

Another key element of “coordination” is that careful planning will often enable you to sequence or locate tasks, e.g., to reduce the numbers of employees, not needed to carry out the task in question, who will need to be working in proximity to a given hazard.  You may also be able to isolate work that produces hazardous chemicals or vapors, respirable silicate, or other harmful substances, thereby limiting employee exposure.

Another thing the general contractor can do before the work is underway is to coordinate with the subcontractors, to ensure that all needed safety equipment will be onsite as needed, and that appropriate employee training (which, increasingly, is required by law) has been completed.  Responsibility for “toolbox talks” and other training, as the project goes forward, should also be planned.

One of the most important aspects of coordination is discussion, especially among the primary trades, and firm leadership, to ensure that safety practices, especially regarding hazards that are perennially leading causes of fatalities and serious injuries (and those most frequently cited by OSHA) are uniform, and at the highest and best levels.  Nothing undermines employees’ belief in the sincerity of management’s commitment to safety than seeing such things as supervisors looking the other way while employees work on elevated surfaces without fall protection, or do down into unshored trenches.

Finally, while strictly speaking it’s not part of health and safety practices per se, it’s an excellent idea for the general contractor to do whatever is necessary to ensure first, that its subcontracts all require the subcontractors to name the general contractor as an additional insured on its contracts of liability insurance, and, second, to verify that its own mutual insurance obligations, vis-à-vis the owner and any subcontractors, have all been complied with.  The better practice is to obtain not just insurance certificates, but copies of the actual policies.

Since worker safety involves all participants in a construction project, getting it done right generally requires a difficult-to-achieve mix of patience, firmness and tact.  Coordinating safety efforts among so many parties can be challenging, but most construction companies are increasingly aware of the need for it, since, after all, it’s a life-or-death task not only for your employees, but for your business as well.

Avoiding hand injuries is a too-often-overlooked aspect of construction safety.  On most jobsites, it’s common to see construction workers working barehanded, at least for a part of their workday.  (Our research yielded up one estimate that 80% do so.)  Lacerations and puncture wounds, more than half of which are believed to be avoidable just by wearing gloves, according to the Bureau of Labor Statistics cost the industry upwards of $400 million per year.  (That figure includes medical costs, 4-5 days lost time per incident, downtime, cleanup, and legal costs).

Other types of hand injuries sustained in construction include cutting or crushing injuries resulting in amputations, abrasions, the breaking of fingers or other bones in the hand, chemical burns or dermatitis resulting from contact with certain chemicals, thermal burns, electrical burns, and the absorption through the skin of hazardous substances.  And don’t forget frostbite and bites (insects, spiders, snakes, and animals) as additional dangers.

According to the CDC, work-related hand injuries result in more than 1 million emergency room visits annually (which figure includes “general industry” employees, not just construction workers).  The number of “days away from work” incidents associated with hand injuries is second only to back strains and sprains.

The first line of defense against hand injuries is wearing high-quality, undamaged, properly-chosen work gloves.  To effect a reduction of up to 60% in hand injuries, the gloves must fit properly, and they must actually be worn. Gloves must be inspected regularly, discarded if damaged, and replaced periodically.  (Electrical and chemical protective gloves, in particular, have limited life spans).

In 1994, OSHA amended its PPE standards, by adding 29 C.F.R. § 1910.136.  The impetus for the amendment was a finding that 70% of construction workers suffering hand injuries were not wearing gloves at all, and that nearly all of the remaining 30% were wearing gloves that were inadequate, damaged, or unsuited to the relevant hazard(s).

OSHA’s hand-protection standard requires employers to “select and require employees to use appropriate hand protection when employees’ hands are exposed” to a variety of hazards, and places the burden on employers to “base the selection of the appropriate hand protection on an evaluation of the performance characteristics of the hand protection relative to the task(s) to be performed, conditions present, duration of use, and the hazards and potential hazards identified.”

The challenge, obviously, is identifying hand protection that affords adequate protection against hazards likely to be encountered in your trade, without unnecessarily impeding the employees wearing them in carrying out their tasks.  While OSHA assigns to the employer primary responsibility to make the risk assessment, and the selection of appropriate PPE, employees should be asked to help compile a list of tasks they perform, and the kinds of hand injuries (cuts, puncture wounds, crushing injuries, chemical burns, thermal burns, etc.) that could result.

Among the many types of safety gloves available are the following:

• Leather gloves (protect against rough surfaces);
• Insulated gloves (protection from hot objects or surfaces);
• Cut-resistant gloves;
• Anti-vibration gloves (protect against excessive vibration of hand-tools and machinery);
• Disposable gloves (typically, latex, or nitrile for the 10% of the population that is sensitive to latex) (blood and other biocontaminants);
• Kevlar gloves and stainless-steel mesh gloves (protect against cuts, slashes, and abrasions);
• Certified linesman’s gloves (it’s critical to inspect these before use, as they must be electrically tested every 6 months, and even a pinhole leak can cause death);
• Chemical-resistant gloves (these come in diverse types, and must be matched to the specific chemicals or classes of chemicals [corrosives, solvents, pesticides, etc.] to which the wearer is likely to be exposed).

“Chemical-resistant” gloves are not totally and permanently chemical-proof.  Different glove materials offer protection against particular types of chemicals, and, over time, the material will deteriorate, allowing chemicals to penetrate the glove.  Employees need to ascertain what chemicals they can expect to be handling, and that the gloves being used are made from materials that will protect them.

Fortunately, the industry has made significant advances in recent years in improving both materials and design utilized in protective gloves.  Today’s work gloves are superior (in terms of dexterity and touch sensitivity, as well as strength of materials) to the clumsy work gloves of yore.  Thanks, also, to the internet, and the increased attention given to hand injuries since the 1990s, there now exist more knowledgeable, specialized vendors, and it has become easier to find help and advice in fulfilling the employer’s responsibility to assess the risks, and select suitable PPE.

Of course, while gloves are the chief component of a successful hand safety program, lacerations, broken bones, and amputations are not fully guarded against, even by the improved PPE now available.

Other safety measures that should be included in a hand safety program include, but are not limited to, training employees in the safe operation of machinery, hand tools, and power tools.  It’s especially important to train employees, and to have (and enforce) work rules, on the subject of machine guards —i.e., that they must never be disabled, bypassed, or removed.  Nail guns are another notorious culprit in hand injuries, and training in their safe use is also recommended.

Another thing you can do to reduce the incidence of hand injuries is to require your field employees to wear glove clips.  Especially since a great majority of construction workers who wear gloves remove them to perform certain tasks, the gloves are at risk of being forgotten, or left aside, once removed.  A glove clip attaches to a belt loop, harness, or belt, and workers, upon removing their gloves, should be required to put them on the glove clip.  In that way, the gloves are kept close at hand (pun intended) and can be put back on, once a task requiring a high degree of dexterity, or the removal of gloves for any other reason, has been completed.  One study showed that this simple and inexpensive measure can reduce hand injuries by as much as 85%.   We did a quick online search, which showed glove clips available at prices between about $5 and $13 each, or as low as $2.80 apiece if purchased in bulk.  They’re a good investment, and if you’re not already requiring your workers to wear them, you should give serious consideration to doing so.

Yet another thing you can do to reduce the risk of hand injuries is to train your employees to report perceived dangers to hands, especially defective, damaged, or otherwise unsafe equipment and tools.  Work station housekeeping is another important item in any hand safety program.  Sharp items must be disposed or stored, and chemical spills cleaned up thoroughly and promptly.

As with other varieties of injuries, the prevention of hand injuries is largely a matter of leadership and common sense.  If you are fortunate enough to head up a construction company, you owe it to your employees — and to your bottom line — to provide the right PPE and training, and to promulgate and enforce appropriate work rules.  Everyone in your company must be accountable, since the machinery, chemicals, electrical current, etc. on the jobsite are indifferent to worker safety, and will inflict injuries if you fail.

The work done on nearly every construction jobsite is done by the employees of multiple employers.  At any given time, depending on the complexity and the size of the project, there may be dozens of different trades at work on the jobsite.  When an OSHA inspection occurs, and violations are found, which employer (or employers) will receive citations?

Under OSHA policy, the general contractor, as well as each subcontractor or other employer of workers present on the jobsite, may play one or more of several roles, any one of which may subject it to being cited for OSHA violations.  These roles are referred to as the “creating,” “exposing,” “correcting,” and “controlling” employer.

As the name implies, a “creating” employer is one who causes a condition that violates an applicable OSHA standard.  Since, unsurprisingly, it is forbidden to create hazards that violate OSHA standards, any employer that does so will be cited, even if none of its own employees are exposed to the violative condition, and even if the extent of the employer’s overall control of the project is slight.  (Naturally, it remains a requirement that someone’s employees be exposed to the hazard, although it need not be the “creating employer’s” employees).

Also subject to being cited for any OSHA violation is an “exposing employer,” which is to say every employer whose employees were exposed to the condition that violated an OSHA standard.  An “exposing employer” is liable as such, even if its employees created the hazard, but if the exposing employer was not also the creating employer, it must be shown that it had actual or constructive knowledge of the hazard, and failed to take steps to protect its employees.

Actual or constructive knowledge on the part of the cited employer is an indispensable element of every OSHA violation.  “Constructive” knowledge means that the employer ought to have known of the violation, in the exercise of reasonable diligence.

An “exposing” employer, if lacking authority to correct a given hazard, has a duty to ask the “creating” or “controlling” employer to do so.  It must also inform its employees of the hazard, take reasonable alternative protective measures, and remove its employees, if the hazard presents an imminent danger.

The “controlling” employer — most often, the general contractor or construction manager — is the employer having general supervisory authority over the jobsite, and the power (whether by contract, or in practice) to correct safety hazards, or require others to do so.  Note that project architects and engineers are sometimes deemed to be “controlling employers.”  A “controlling employer” must take reasonable care in preventing and detecting OSHA violations.

Although the Evergreen Construction case, discussed below, calls into question the extent of the controlling employer’s responsibilities in inspecting the jobsite to discover hazards created by others, traditionally the level of care required of a general contractor, in safeguarding the trades’ employees, is lower than is mandated in looking out for its own employees.

However, among the factors in determining how frequently a “controlling employer” must inspect the site, to detect hazards created by others, is what the controlling employer knows about the safety and health efforts of the subcontractors.  “Reasonable diligence” on the part of the controlling employer requires fewer inspections, where the subs are known to be conscientious with respect to safety, and more frequent ones, where there are subcontractors known to have been non-compliant, or about which little is known.

Finally, a “correcting employer” may be cited for an OSHA violation.  Such an employer must be engaged in a common  undertaking, at the same worksite as the exposing employer, and responsible for correcting a hazard.  It must exercise reasonable care in preventing and discovering violations, and diligence in meeting its obligation to correct hazards.

Naturally, a particular employer may simultaneously exercise more than one of the roles of creating, exposing, controlling, and correcting employer.

The recent decision by the OSH Review Commission in Secretary v. Evergreen Construction Company calls into question just how much diligence is required of a general contractor, or other “controlling employer,” in discovering and remedying violations by project subcontractors.

The facts in Evergeen Construction were straightforward.  Evergreen was general contractor on a hotel construction project in Atlanta.  This project was for the construction of a six-story building on 3 acres of land, with up to 20 subcontractors working onsite at any given time.

The masonry subcontractor, Nuñez, was cited for a fall-protection violation, with the OSHA compliance officer arriving onsite for his inspection one morning at about 10:00 A.M.  Nuñez’s employees were building walls close to the unprotected edge of the building’s fourth floor, without exterior walls, guardrails, or safety nets to protect against falls.  The employees were not wearing harnesses or lanyards, and, at the time of the inspection, no anchorage points to affix lanyards had been installed.

In addition to citing Nuñez as the “creating” and “exposing” employer, OSHA cited Evergreen as the “controlling” employer.

The facts established at trial showed, on the one hand, that overall Evergreen appeared to be highly conscientious, its supervisor and safety manager walking the site up to four times daily to check on the progress of the work, look for safety issues, and point out to subcontractors any safety violations he observed.

However, Evergreen’s supervisor had repeatedly observed Nuñez employees working without fall protection.  Indeed, on the day prior to the inspection, the supervisor had inspected the jobsite twice, and saw Nuñez’s employees working without fall protection both times.  On both occasions, he had admonished them to use fall protection.  From 7:00 A.M. the following morning until the compliance officer’s arrival at about 10:00 A.M., the supervisor had been in meetings in the jobsite trailer, and did not inspect the worksite before OSHA arrived, and found Nuñez’s employees once again working without fall protection.

The ALJ affirmed the violation as against the general contractor on two grounds, finding (1) that reasonable diligence required Evergreen to inspect Nuñez’s work during the period of 1-3 hours on the morning of the OSHA inspection (wherefore, it would be deemed to have had constructive knowledge of the violation); and (2) that Evergreen’s program was deemed inadequate, with regard to enforcing Nuñez’s compliance with OSHA requirements.

On review by the Commission, Commissioner MacDougall expressly, and Commissioner Attwood tacitly, disapproved the ALJ’s view that Evergreen’s enforcement program was insufficient.  Commissioner MacDougall, moreover, stressing Commission precedent that the controlling employer does not need to inspect as frequently as an exposing employer, found that requiring Evergreen to inspect the jobsite before work even began on the morning of the inspection would raise the standard for “reasonable diligence” to an unreasonable level.  As one subject of Evergreen’s meeting on the morning of the inspection was again to remind Nuñez of its OSHA obligations, Commissioner MacDougall found that Evergreen had informed Nuñez of those obligations three times in the 24-hour period preceding the inspection, and that requiring more would be to effectively punish Evergreen for its laudably attentive past efforts, while disregarding the obligations and constraints placed on a controlling employer’s onsite supervisor on a large, active jobsite.

Disagreeing, Commissioner Attwood opined that Evergreen’s superintendent’s knowledge that Nuñez had violated the fall protection standard twice on the day before the inspection required it to exercise reasonable diligence to prevent the same violation from occurring prior to OSHA’s inspection of the worksite on the following day.

In light of the impasse between the two participating commissioners, they determined to vacate the Commission’s direction for review, allowing the employer the choice to appeal the ALJ’s decision to an appropriate U.S. Court of Appeals.

Most people are aware that carbon monoxide (CO) gas is a colorless gas with no taste or smell, and, when inhaled, inhibits the blood in bringing oxygen to cells, tissues and organs.  We have all heard accounts of people being overcome and dying from carbon monoxide poisoning, and many of us have carbon monoxide detectors or alarm systems in our homes.

Carbon monoxide is a common hazard, resulting from the incomplete combustion of natural gas and any other material containing carbon, such as gasoline, kerosene, oil, propane, coal, or wood.  CO exposure at high levels can result in death, or permanent organic injury, in a matter of minutes.  Since construction operations often involve gasoline-powered or other fuel-burning equipment, and work indoors (or in poorly-ventilated outdoor spaces) it’s a construction hazard, with welders and forklift operators at particularly high risk.

Situations in which carbon monoxide can pose a serious hazard in construction include the use of equipment powered by gasoline or by liquefied petroleum gas (propane and/or butane), such as generators or cut-off saws, in enclosed spaces — indoors, certainly, but also in trenches, or outdoor spaces where plastic sheeting is in place to protect against dust, rain, etc.  CO tends to build up in pockets in poorly-ventilated areas.

CO gas may be a hazard, also, where building renovations disturb gas flues or ventilation systems, or where gas-powered stoves, fireplaces or other appliances are incorrectly installed.

All fuel-burning equipment emits some quantity of carbon monoxide.  This includes car, truck and forklift engines, gasoline-powered power washers, construction equipment powered by gasoline or propane, and non-electric heaters.  Any fuel-burning equipment to be used indoors, or in semi-enclosed outdoor spaces, must be maintained and tuned regularly, as a poorly-tuned gasoline engine can produce up to 12 times as much CO as a well-tuned one.  (Water heaters, space heaters, and cooking ranges that produce CO should also be maintained in good working order, to reduce CO formation.)

Indications that incomplete combustion is occurring, and that CO may be produced, include yellow or orange rather than blue flames, soot or yellow/brown staining around or on appliances, pilot lights that frequently blow out, and increased condensation inside windows.

Keeping gasoline-powered equipment well-tuned, however, is not sufficient, where such equipment is to be used indoors, or in confined or semi-enclosed spaces (such as a garage, crawl space, or basement).  Generators should never be operated indoors — and, when operated outdoors, they should be kept away from doors, windows or vents, which could allow CO to enter the structure, and build up in occupied spaces.  The generator should also be placed with at least 3 to 4 feet on all sides and above it, to ensure adequate ventilation.

Optimally, fuel-burning equipment producing more CO than, say, a gas range should not be used at all in indoor or partially-enclosed spaces.  Where it is necessary to operate such equipment in such spaces, however, all areas where fuel-burning equipment is to be used must be ventilated by mechanical means to the outside air.

 Air-monitoring devices with audible alarms should be deployed wherever practicable.  OSHA’s PEL (averaged over 8 hours) for CO is 50 ppm; a maritime standard (not applicable to the construction industry) requires that employees be removed from the premises, if CO levels reach 100 ppm.  Other agencies recommend that long-term exposure not exceed 35 parts per million, and that the alarms should be set at a lower value.  (The maximum short-term exposure value for CO is 400 ppm; 1500 ppm is “immediately dangerous to life and health”).  OSHA prescribes that tests for CO concentrations are to be made by designated persons, using gas detector tube units (e.g., Drager, Gastec) certified by NIOSH under 30 CFR Part 11, or other instruments, whose accuracy is as great or greater.

Respirators with appropriate canisters may be used for short periods under certain circumstances, where CO levels are not exceedingly high.  More heavy-duty equipment, such as a full-facepiece, pressure-demand self-contained breathing apparatus, certified by the National Institute for Occupational Safety and Health, is indicated, where work must be performed (or rescue operations carried out) where CO concentrations in the “immediately dangerous to life and health” range are suspected.

During the planning stage, in advance of building renovations, the impact of the work on existing gas-fired systems should be carefully evaluated.  Also, future maintenance access to flue systems concealed within voids should be provided for, and properly documented.

It’s a good idea, also, to use electrical appliances in lieu of gasoline or propane-powered ones, or to locate generators, etc. outside, and in well-ventilated spaces.

As always, equipment maintenance and employee training are essential.  In addition to knowing how to implement the controls properly, employees should be taught that drowsiness, faintness, headache, breathlessness, nausea and an irregular heartbeat are early signs of CO poisoning, and that these symptoms may be confused with food poisoning, the flu or other viral infections, or fatigue.

If not properly trained concerning the dangers of carbon monoxide, workers experiencing these early signs may not know that they need to move away from the source of the CO gas, alert others, and seek immediate medical attention.  It is critical that employees be trained that they must never ignore symptoms that may be the result of carbon monoxide poisoning.  Workers should be trained, also, to alert supervisory personnel to any situation that might cause CO to accumulate.

 Workers responding to an emergency situation where CO may be present may themselves be exposed to potentially-fatal levels of CO gas, and all employees should be warned accordingly as part of their training.  Obviously, it is best if rescuers are skilled in in carrying out such operations, and in the use of recovery equipment.  They should use supplied-air or self-contained respirators in entering any area where concentrations of CO may be present.

The victim should be moved at once to an open area, and “911” or other emergency responders summoned.  If the victim is breathing, 100% oxygen should be administered, using a tight-fitting facial mask.  If the victim has stopped breathing, CPR should be administered by a trained individual.  Appropriate respirators, supplies of oxygen, etc. must be kept on hand, if your employees work in proximity to fuel-burning engines or equipment, whether the same is in use by your employees, or by other trades.

Finally, the design, installation, maintenance, alteration and inspection of fuel gas piping and equipment is governed by a variety of state and local codes.  To ensure safety, it is critical that all such work be performed in strict conformity with all applicable codes, and by persons holding appropriate licenses or permits, as may be required by state or local law.

Carbon monoxide is a formidable danger.  Because it is detectable only with special equipment, can cause serious injury or death within minutes, and can accumulate from something as easily done as the improper placement of a generator too close to windows and vents, it must be guarded against assiduously.

“Lockout/Tagout” refers to procedures to protect employees from injury or death resulting from the unexpected startup of equipment or machinery, or an uncontrolled release of energy, during the performance of installation, maintenance, service or repair tasks.

“Lockout/tagout” requires, among other things, that a designated individual turn off and disconnect the machinery or equipment from its energy source(s) before performing service or maintenance, and that he either lock or tag the energy-isolating device(s), and verify that the energy has been effectively isolated.

In addition, if the potential exists for the release of hazardous stored energy (or the re-accumulation of stored energy to a hazardous level) appropriate protective measures must be taken.

Lockout devices hold energy-isolation devices in the “off” position.  They employ physical restraints, that cannot be removed without a key or other unlocking mechanism (or a bolt cutter) to prevent the machine or equipment to which they are affixed from becoming energized. Tagout devices, which provide less protection, and are therefore approved only where locking out is not an option, are prominent warning devices, cautioning employees not to re-energize the machine during service or maintenance operations.

While OSHA’s primary lockout/tagout standard, CFR 1910.147, is a general industry standard, not applicable to the construction industry, if your employees service or maintain machines or equipment, and the unexpected startup, energization of the machinery, or the release of stored energy might cause injury, lockout/tagout probably applies to you during set-up activities and the servicing and maintenance of equipment, whenever the unexpected startup of the equipment, or the release of stored energy, could occur.

Lockout/tagout most often comes into play in construction with respect to electrical circuits, and concrete and masonry construction.  Electrical controls to be deactivated during work on energized or deenergized equipment or circuits must be tagged.  For concrete and masonry, maintenance or repair activities must be prohibited, where the inadvertent startup of the equipment could occur and cause injury, unless and until all energy sources have been locked out and tagged.

Generally, lockout/tagout does not apply to portable hand tools, and other cord-and-plug connected machinery and equipment, where electricity is the only form of hazardous energy to which employees might be exposed, and the user can control exposure by simply disconnecting the device from the outlet.

The failure to implement and to observe lockout/tagout protocols is one of the most-cited OSHA violations in general industry, and a significant cause of injury and death in construction.  One study based on OSHA accident investigation reports from 1984-97 found that lockout procedures were not even attempted in more than half of the cases investigated.

You need to have (and train your employees concerning) a written energy control and lockout/tagout protocol.  It must include steps to shut down, isolate, block, and secure machines; designate the safe placement, removal, and transfer of lockout/tagout devices, and provide for testing, to verify the effectiveness of lockout/tagout devices, and other energy-control measures.  You should use lockout devices for equipment that can be locked out, and ensure that new or overhauled equipment is capable of being locked out.

You should employ tagout devices and procedures only where the equipment in question cannot be locked out.  Lockout/tagout devices used must be durable, standardized, and substantial.  The devices used should identify the individual users, and, generally, only the employee applying a lockout/tagout device should be permitted to remove it.

OSHA has additional energy control provisions, to be observed when machines or equipment must be tested or repositioned, when outside contractors are at work onsite, in group lockout situations, and during shift or personnel changes.

Among the measures recommended to employers by NIOSH are the following:

• Make sure there is a written protocol in place, employee training, and inspections, before any maintenance or service work is performed.
• Make sure all employees know when the lockout/tagout procedures apply, and are trained in how to carry them out.
• Procedures developed should be specific to each machine.
• Workers must have available an adequate number of lockouts and tagouts, and other hardware, as may be required.
• Isolation devices (breaker panels, control valves, etc.) must be clearly labeled.
• After lockout/tagout devices are removed, but before circuits are re-energized, or equipment re-started, make sure that all employees who work with them (or nearby) know that the devices have been taken off, and that that power has been restored.
• Strictly forbid anyone under age 18 from working on machinery deemed hazardous in the Child Labor rules (29 C.F.R. 570.120).

Workers must be conscientiously trained to do all of the following:

• Before beginning machine adjustment, maintenance or servicing, de-energize all sources of hazardous energy, by disconnecting or shutting down engines or motors, de-energizing electrical circuits, cutting off liquid or gas flow in hydraulic or pneumatic systems, and blocking machine parts against motion.
• Lockout and tagout all forms of hazardous energy, including electrical breaker panels and control valves.
• Block or dissipate stored energy, by discharging capacitors, releasing or blocking springs under compression or tension, and venting fluids from pressure vessels, tanks, or accumulators.  Exception:  toxic, flammable, or explosive substances must never the vented directly into the atmosphere.
• Verify that all energy sources have been de-energized.
• Make sure that only one key exists for each individual’s assigned locks, and that only the worker in question holds the key (master keys must be kept under supervisory control and used rarely, as when the worker assigned to the locks is absent, or unavailable).
• Inspect repair work, before removing locks and activating the equipment.
• Make sure that all workers are clear of danger points, before re-energizing the system.

Naturally, employee training is an indispensable part of lockout/tagout compliance, and the employer must:

• Establish procedures to interrupt the supply of energy to machines, and to put appropriate lockout or tagout devices on the energy-isolating devices, to prevent unexpected re-energization.
• Where applicable, address stored or potentially re-accumulated energy.
• Train employees in the correct application, use, and removal of energy controls; and
• Review procedures at least annually, to ensure that employees are following them, and that the procedures remain effective.

In addition to a host of standards that cover specific hazard, Section 5(a)(1) of the OSH Act, known as the “General Duty Clause,” requires employers to furnish employment and a place of employment free from recognized hazards causing, or likely to cause, death or serious physical harm.

This provision is often described as a “catch-all.” Many believe it to be sufficiently broad as to make it an OSHA violation whenever an employee is injured and the compliance officer detects a hazardous condition.

The General Duty Clause, although broad, is not quite that broad, as demonstrated by a recent case, Secretary v. Capitol Concrete Contractors, Inc., in which an Administrative Law Judge vacated a General Duty Clause citation, based on the legal insufficiency of the Secretary’s proof at the trial.

A Capitol Concrete employee suffered a broken wrist, while training others in the use of a skid-steer loader.  Sometimes referred to as a “skid-steer,” this piece of equipment is generally described as a small, agile front-loader with left-side wheels and right-side wheels operable at different speeds from one another.  The machine turns by skidding, or dragging its fixed-orientation wheels across the ground.

Unlike a conventional front loader, the lift arms in a “skid-steer” are alongside the operator, with the pivot points behind the operator’s shoulders.  Because of this proximity between the operator and the moving booms, most modern skid loaders have fully enclosed cabs, and other features to protect the operator.  The skid loader is capable of zero-radius turning, making it especially useful where a compact, agile loader is needed.

Following a report that one of the Respondent’s employees had been admitted to a hospital following a work-related injury, OSHA conducted an inspection, and cited the employer for a “Serious” violation of the General Duty Clause (with a proposed penalty of $10,800).

The facts of the occurrence were that, during skid-steer operator training, the trainee lifted the bucket of the skid-steer into an elevated position.  This was unusual, because the skid-steer had nothing in its bucket at the time.

The trainer walked over the skid-steer, reached into the cab while the bucket was still in a raised position, and tried to point out the controls.  As he did so, the bucket arms unexpectedly came down, and fractured the trainer’s wrist.

The violation of the General Duty Clause alleged was that, during operator training for the new skid-steer, the trainer “would routinely approach the operational loader at the construction jobsite and was exposed to a struck-by hazard from the equipment.”

The employer contested the citation, and the matter was brought to trial before an ALJ.  The Secretary’s case, which the ALJ characterized as “perfunctory,” consisted solely of testimony by the compliance officer.  The employer cross-examined the CO, and introduced a single exhibit into evidence, but called no witnesses of its own.

The employer having rested without calling any witnesses, the ALJ’s task was simply to determine whether the complainant’s evidence was legally sufficient to meet his burden of proof.  The ALJ determined that it was not.

The General Duty Clause requires the Secretary to show that (1) a condition or activity in the workplace presented a hazard; (2) the employer, or its industry, recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) a feasible means existed to eliminate or materially reduce the hazard.

As with any OSHA violation, a violation under the General Duty Clause requires the Secretary to establish also, by a preponderance of the evidence, that (1) the standard applies to the facts; (2) the employer failed to comply with the terms of the standard; (3) employees were exposed to the hazard covered by the standard; and (4) the employer had actual or constructive knowledge of the violation (i.e., the employer knew or, with the exercise of reasonable diligence, could have known of the violative condition).

In Capitol Concrete, the ALJ noted that, while the trainer had been injured while reaching inside the skid-steer cab, the General Duty Clause violation alleged was more general:  that he had approached and operational skid-steer during the training process.  “As far as the Court can tell,” the ALJ observed, “this activity was characterized as hazardous because the trainer could presumably be struck by the skid-steer loader or its implements.”

While presumably, the ALJ remarked, the trainer would have avoided breaking his wrist, had he not approached the running skid-steer, extrapolating from the avoidance of this particular injury to a general prohibition against “approaching” a running skid-steer at all requireds more evidence than that the particular individual was injured when he reached into the cab.  The Commision has held that “it is the hazard, not the specific incident that resulted in injury, or might have resulted in injury, that is the relevant consideration in determining the existence of a recognized hazard.”  In the case before her, the ALJ found, there was little persuasive evidence with respect to the purported hazard.

The Secretary sought to rely upon a NIOSH Alert,” “Preventing Injuries and Deaths from Steer-Skid Loaders,” selected portions of the skid-steer’s operation manual, and warning labels affixed to the skid-steer.

While the NIOSH Alert cautions about operating or working near a skid-steer loader, the same recognizes that if the skid-steer is to be used at all, employees will inevitably be operating, or working in proximity to it.  And, while the NIOSH Alert is explicit in describing safe operating procedures and the proper method to enter and exit the cab of a skid-steer, the Court found it did not clarify the Secretary’s allegation that approaching a running skid-steer during training is hazardous.

The ALJ found, further, that the additional documents introduced by the Secretary all targeted hazards associated with the loader arms during entry, exit, while performing maintenance, or during regular work.  Noe of them contained explicit warnings about approaching the cab of a skid-steer.

While, obviously, approaching an operational skid-steer may be hazardous when the bucket is raised, or when it is actually “in operation,” those were not situations addressed by the citation item, which was directed to approaching an “operational” (i.e., capable of being operated) machine during training.

Due to the failure to show safety warnings addressed to the alleged hazasrd, or evidence, such as prior injuries or citations (as would suggest that the Respondent was specifically aware of a hazard) the ALJ found that the Secretary had failed to show a recognized hazard.  Indeed, the CO testified that he was unaware of any industry standard stating how close to an operational skid-steer an employee may safely stand.

The ALJ found that the Secretary had failed to prove another necessary element of a General Duty Clause violation — a feasible means to abate the hazard.  The only discussion of preventative conduct at trial was the CO’s testimony that a brace bar would have prevented the injury suffered by the trainer, but that discussion (the ALJ found) did not address the alleged hazard, which was the positioning of the trainer relative to the cab during training.

Finally, the ALJ found that the Secretary had failed to prove employer knowledge of the violation: it did not show that the trainer’s conduct was foreseeable, and there was no competent, credible evidence that either of the other supervisors at the scene were aware of how the trainer was carrying out his task, or that the employer’s training procedures required him to act as he did.

Capitol Concrete, therefore is a good example of how the ALJs generally do require the Secretary to prove the elements of a General Duty Clause violation, and do not reflexively apply it whenever there is an injury based on a perceived hazard that does not have its own OSHA standard.

Anyone who works on (or near) construction sites is aware that such environments are noisy.  However, unless most of your employees are spending most of their days operating jackhammers, chances are good that noise is a subject that receives less attention in your company’s safety program than it deserves.

While hearing loss can result from a one-time incident, more commonly it occurs over time, from the cumulative effects of exposure from day to day to excessive noise levels.  The gradual nature of most job-related hearing loss often causes it to go undetected, until its impact is significant.

While some degree of hearing loss is an ordinary incident of getting older, if pronounced, it can be isolating, and have a significant negative impact, both on one’s quality of life generally, and one’s ability to hold many kinds of employment in particular.  While damage to hearing is usually less dramatic than an employee falling off a roof or driving a piece of equipment into a retaining pond, it has some potential to be life-threatening, as studies have shown that workers consistently exposed to excessive occupational noise may be at significantly higher risk of serious heart disease than workers not exposed.  Even if damage to hearing is not so dramatic as to impact an employee’s ability to enjoy ordinary conversation or other everyday activities, or to cause heart disease, it can affect productivity, and contribute to workplace accidents.

Since noise-induced hearing loss is incurable and irreversible, the primary strategy must be prevention.  Indeed, you really should be rolling up your sleeves on this one, because (1) mitigating this hazard is practicable; (2) doing so costs relatively little, in terms of cash outlays and lost productivity; and (3) what is required by OSHA is probably less than optimal.

Prevention begins with identifying tasks likely to generate high noise levels — including not only those to be performed by your own employees, but by other trades in proximity to where your employees will be working.

It is important for the general contractor and all trades to communicate, and plan ahead, for construction phases or specific tasks that will produce high noise levels.  A regular agenda item at daily and weekly safety meetings should be a discussion of current and upcoming tasks which, in combination with other jobsite activities, are likely to produce ambient noise at levels exceeding prescribed levels.

Safety meetings should also be the occasion of discussing practical means to reduce noise levels, and restrict workers’ time of exposure.  Often, high-noise tasks can be staggered, rather than performed simultaneously or continuously.  Sometimes, tasks can be relocated, and performed at greater distances from where most employees are working.  High -noise equipment, such as compressors and generators, can often be moved at some distance away from active or highly-populated work zones.

  Prefabricated noise barriers are another commonly-employed means of attenuating noise.  Where a quieter item of equipment (such as a smaller generator) will get the job done, avoid using a larger, noisier, item of equipment.  Reducing time exposure to high noise levels is also useful, as is implementing rest breaks away from noise, and limiting access to unavoidably noisy work zones to employees whose tasks require them to be there.

Another good idea is that, as a matter of policy and consistent practice, your purchasing department should obtain information concerning noise levels produced by equipment to be bought or leased by your firm, and making quiet, or relatively quiet, operation a major consideration in selecting equipment.  Many manufacturers have designed noise-reduction into their products, or their equipment can be retrofitted or used with parts (e.g., noise-reducing blades on power saws) at modest incremental cost.

As always, while the rank-and-file should certainly speak up on this issue, it’s important for leadership to come largely “from the top.”  Company management and supervisory personnel should take noise attenuation and hearing protection seriously, and engage in a continuous process of hazard identification and assessment, and (in collaboration with other trades, union representatives, etc.) devising means to reduce the hazards represented by jobsite noise.

Noise levels are measured in decibels (dBA), but — since, as most people are unaware, decibels are measured on a logarithmic scale — an increase of only a few decibels means that, by way of example, an increase from 90 decibels to 93 decibels indicates that the noise volume has not increased by one-thirtieth, but has doubled.  While other factors come into play (such as proximity to the noise-producing condition, and the effectiveness of barriers, if any, deployed) all things being equal, time of exposure to noise levels at 93 decibels should be cut in half, versus a situation where noise levels are at 90 decibels.

As a rough indicator, these are a few sample items from an OSHA “Sound Level Chart:

• Normal conversation:  60 dBA;
• Schoolchildren in noisy cafeteria:  90 dBA;
• OSHA recommended maximum noise level:  85 dBA;
• Power lawn mower:  90 dBA;
• Forklift:  93 dBA;
• Concrete saw:  98 dBA;
• Wood shop:  100 dBA;
• Snowmobile:  120 dBA;
• Gunshot:  140 dBA.

Measured by construction activity, forming, installing rebar, framing and masonry work (among others) are particularly noisy tasks. Under OSHA, employers are allowed to rely on any combination of hearing-protective devices, coupled with a hearing conservation program, i.e., engineering and administrative controls.

Hearing-protective devices are recommended, but not mandated, at any time that time-site exposures (8-hour average) meets or exceeds 85 dBA.  The employer is responsible for selecting, fitting, and maintaining hearing-protective devices.  The employer must also provide them to employees at no cost, and to train employees in their use.

Our view is that practically all construction projects involve unsafe noise levels, and that high-quality hearing-protective devices should be provided as a matter of course.  While high noise activities are less likely to be continuous, or concurrent, on residential or other smaller jobs, your average chain saw is rated at about 110 dBA, a bulldozer at 100 dBA, and a nail gun at 97 dBA. 

OSHA does prescribe training, not only in the use of hearing-protective equipment, but in how hearing damage happens.  Frankly, instructing your employees in the anatomy of the ear, or how the cilia are damaged over time, is less important than that they understand that (1) hearing loss occurs gradually; (2) is seldom apparent until significant damage has already occurred; (3) is more disabling than commonly believed; (4) cannot be cured or reversed; but (5) can be prevented, in large part by the conscientious use of hearing-protective equipment.

To counter employee resistance to the use of hearing-protective equipment, workers need to be made aware not only of the severity and permanence of job-related hearing loss, but also that today’s hearing-protective equipment is better-designed than in the past, and allows face-to-face conversations, while blocking out dangerous levels of background noise.

While a significant hearing loss, becoming apparent only years after the worker in question has left your company for other employment, may not appear as critical as avoiding fatalities, construction-related hearing loss is a widespread, and by no means trivial, health issue.  Stressing its dangers, implementing engineering and administrative controls, and exceeding current OSHA requirements (notably, by providing hearing-protective equipment, and ensuring that it is both maintained and used) not only protects the health of your workers, but sends a powerful signal that your company’s safety objectives go beyond avoiding OSHA citations.

In reviewing OSHA decisions for this series, we’re startled at how often the OSH Review Commission dismisses untimely Notices of Contest, and upholds citations in cases where the employer simply disregards the citation.

In civil practice, there are deadlines, and there are deadlines.  Some deadlines are hard-and-fast, drop-dead dates.  Some can be excused, “for good cause shown.” Still others are honored primarily “in the breach.”

When an employer is served with an OSHA citation, it has 15 working days to preserve its rights by filing a Notice of Contest.  Fifteen “working days” means that weekends and holidays observed by the federal government are not counted.

This deadline is essentially of the hard-and-fast variety.  Occasionally, in truly unusual circumstances, OSHA will not insist on the strictest, to-the-letter observance, but we more often see Notices of Contest, even ones that are just a day or two late, being dismissed.

Thus, for practical purposes, if you are even considering contesting your OSHA citation, do not fail to serve written notice, within the deadline, on the local OSHA office that issued the citation, mentioning the inspection number, and specifying just what it is that you are contesting.  Sometimes it will be all of (1) liability for the alleged violation, or specified citation items; (2) the characterization of all, or some, of the items in the citation (as “Willful,” “Serious,” etc.); (3) the amount of the monetary penalty recommended by OSHA for one or more citation items specified in the Notice of Contest; and (4) the time for abating one or more citation items stated in the citation.

Being over-inclusive in a Notice of Contest is to be preferred over being insufficiently inclusive.  Serving a Notice of Contest will cause the matter to be referred by the local OSHA office to the OSH Review Commission in Washington, D.C., and cause the regional office of the Solicitor of Labor to become involved.  It does not mean, however, that you have irrevocably committed yourself to litigate every contested issue through trial.  Occasionally, an employer will be dead-on certain as to exactly which aspects of a citation it wishes to contest.  An example would be a single-item citation, where the employer (preferably, after consultation with experienced OSHA counsel!) while certain that its employees committed the violation, is equally certain that the characterization of the violation as a “Repeat” violation is wrong (as in the case where neither the employer, nor any predecessor entity, has ever before been cited by OSHA, not just for the specific violation cited, but for any similar violation).

While, in the latter case, you may wish to contest only the characterization of the citation item as a “Repeat” violation, again, it’s best to err on the side of preserving our rights, and contest everything.  You can always withdraw some, as well as all, of the citation, in the course of the contest proceedings.

If you want to contest the citation, or parts of it, treat the 15 working day time limitation as one that will almost certainly not be extended.  Certainly, inattention, or sloppy office procedures, are emphatically not valid excuses.  So, “Tip #1” for this month: instruct all personnel who receive and open the company mail to bring an OSHA citation to the boss’s attention immediately, and count and “tickle” the 15^th working day following receipt of any OSHA citation, as the date by which a written Notice of Contest must be sent out.

“Tip #2” is that, however wrong you may consider an OSHA citation to be, or however adamant your libertarian principles that “the government has no damn right to be telling you how to run your business,” don’t be foolish, and don’t shoot yourself in the proverbial foot, by disdaining to respond to an OSHA citation.  (An example of this we remember from a few years back was the owner of a roofing company, who indignantly told OSHA that since he, the owner, routinely worked on elevated surfaces with no fall protection, OSHA had no right to demand that his employees receive better protection.  No surprise:  the citation was affirmed as “Willful.”)

While recent increases in OSHA penalties make the following proposition less true that it was in the past, it remains the case that the penalties for “Serious” and “Other Than Serious” citations are, usually, sufficiently slight that, as a matter of business judgment, you may not wish to contest an item with only one or two items (“Other Than Serious” citations often carry no monetary penalties at all) (although they can be the predicate for “Repeat” citations at a later date).

Contests, in our experience, are more likely to succeed when they are based on legal grounds, than when the basis is a “he said, she said” “swearing contest,” pitting your supervisor against an OSHA compliance officer.  It’s in OSHA’s interest that employers regard contest proceedings as being unbiased and fair.  The Administrative Law Judges (ALJs) who conduct bench trials of contests of OSHA citations are specialists, and pretty much all of them are earnest and highly knowledgeable about OSHA standards, and the laws relevant to contest proceedings.  Where an OSHA citation is wrong on the law, usually the ALJ will vacate it.

Nonetheless, while we have encountered in the decisions rare instances of an ALJ finding unworthy of belief disputed testimony by an OSHA compliance officer, we perceive a distinct “tilt” in favor of the compliance officers, who are seen as unfailingly truthful guardians of a public interest (namely, employee safety) while business owners, and their upper-level employees, are seen by the ALJs as motivated to prevaricate.  Thus, where the primary basis for your contest is that the compliance officer is not telling the whole truth and nothing but, it’s more of an uphill struggle.

So, often the slim chances of success, coupled with the considerable cost to take a citation contest through trial, make it the more prudent and businesslike decision to accept the citation, pay the penalties, and move on.  Even where your first impression is that that’s the course of action you should take, it’s still a good idea to consult OSHA counsel (which is “Tip #3”).  Especially where the citation has multiple items, counsel may be able to help you negotiate a settlement with OSHA, that will combine two or more items, or drop items, or reduce the monetary penalties.  There are instances, also (especially where you have a recent history of prior OSHA citations) where it’s important to proceed with a full understanding that accepting the current citation may impair your ability to bid on public (and, increasingly, on private) work.

What you should never do is to ignore the citation (that’s our “Tip #4”) or, having served a Notice of Contest, fail to participate in the process.  If you are in construction, you’re in an industry that is targeted by OSHA for enhanced enforcement, and frequent inspections.  Whatever the outcome on your current citation, you will be seeing OSHA again, probably sooner rather than later.  You may want, or need, OSHA to negotiate some reduction on your next citation, which will be more difficult, if their perception is that you do not respect the process, or are inattentive to employee safety and health.

So, even if your decision is not to contest your current citation, it’s usually a good idea to have an informal conference, shortly after the citation is served.  Bring your safety director, bring your written safety plan, and look to impress the OSHA personnel with your concern for employee safety, and that you don’t see OSHA as an enemy.  You can, and should, ask for concessions (in one recent case involving our firm’s client, OSHA was unexpectedly generous) but even if no concessions are granted, you will hopefully have convinced OSHA that your company is not one of the few who are genuinely indifferent to employee safety.

If, after serving a Notice of Contest, you decide not to pursue the contest, be sure to write to the Solicitor, and advise him or her accordingly.  Don’t put them to the trouble of making motions to the ALJ because you’re not filing pleadings, discovery materials, or other pretrial items in a timely fashion.  You will want courtesies (or the benefit of the doubt) from OSHA sometime in the future.  Tip #5, therefore, is to extend appropriate courtesies today.