Author: Thomas H. Welby

The U.S. Supreme Court has held that Section 5(a)(1) of the OSH Act, the “General Duty Clause,” was intended to place on employers a mandatory obligation — independent of the specific health and safety standards promulgated by the Secretary of Labor — in order to reduce the number of occupational illnesses and serious injuries.

Although the General Duty Clause is not truly, as some believe, a catch-all provision requiring employers to provide protection against every imaginable danger in the workplace, nonetheless it does expand, well beyond the list of hazards having their own particular standards, the range of such risks that need to be addressed by your company’s safety program.

To prove a violation of the General Duty Clause, the Secretary must prove that (1) an activity or condition in the employer’s workplace presented a hazard to an employee; (2) either the employer, or the industry, recognizes the condition or activity as a hazard; (3) the hazard actually caused, or was likely to cause, death or serious physical harm; and (4) a feasible means existed, to eliminate or materially reduce the hazard.

One hazard for which there is no specific OSHA standard, but which lies within the coverage of the General Duty Clause, is the danger of employees being struck by lightning.  In a typical year, approximately 50 to 80 people in the U.S. are struck and killed by lightning.  Hundreds more suffer burns, damage to the nervous system, hearing or vision loss, or other serious and permanent injuries.  While the likelihood of an individual being struck by lightning over a lifetime is only about 1 in 10,000, in most years lightning kills more people than any weather-related cause, except for floods.  Lightning usually kills more Americans than hail, wind, rain and tornadoes combined.

Construction workers, so much of whose work is performed outdoors, have an elevated risk of being struck by lightning.  A recent OSHA decision, Secretary of Labor v. Key Energy Services, LLC, held that an employer in the well-servicing industry in Texas violated the General Duty Clause by permitting its employees to continue to work outdoors during a thunderstorm.  The ALJ in Key Energy rejected the employer’s argument that “being struck by lightning is not a preventable hazard,” and therefore lies outside the scope of the General Duty Clause.  “Preventable” does not occur in the OSH Commission’s current formulation of the first element of proof for a General Duty Clause violation, and the Secretary is not required to show that the proposed abatement would completely eliminate the hazard.

You need to have safety policies, work rules, and sufficient training, to minimize the risk that lightning poses to your employees.

One elementary thing you should do is to have your supervisors check the weather forecast daily before the morning shift begins.  If the report includes a “chance of thunderstorms,” your crews need to be cautioned accordingly, and a plan announced (or repeated) for what workers are to do if a thunderstorm approaches.

Although thunder and lightning can occur even during a snowstorm, thunderstorms are most common during the months between April and October.  If the possibility of a thunderstorm is in the weather forecast, one of your supervisors should be tasked to check the weather report every hour or two.  Virtually all cell phones have “apps” that permit checking the weather forecast in a matter of seconds, and there exist apps specifically designed to allow you to enter your location and receive warnings, if lightning is observed in the area.  Large banks of cumulus clouds, especially if they display grayish or dark undersides, are also an early sign of a thunderstorm.

As you probably are aware, lightning tends to strike higher ground and prominent objects, especially materials that are good conductors of electricity.  If you find yourselves outdoors in a thunderstorm, stay away from trees, flagpoles, lawn mowers, metal fences, golf clubs, ponds, etc.  A lightning bolt is roughly a million times more powerful than household current, and carries up to 100 million volts of electricity.

Remember that although sharp, crackling thunder, following a lightning flash almost instantaneously, indicates that lightning is very near, if a storm is close enough that you can hear even “low, rumbling” thunder, there is danger.  A thirty-second lapse between when you see the lightning, and when you hear the thunder, indicates a distance of roughly eight miles.  However, lightning can travel horizontally for tens of miles, far outside the rain-producing part of the storm, and it is not uncommon that lightning will strike up to ten miles, and out of a clear sky.  Thus, whenever thunder is heard, even in the distance, your employees should proceed to take cover, and any delay should be avoided — especially if workers must cover more than a very short distance to get inside a substantial building.

Advance planning should be done, and employees instructed as to the nearest available substantial building in which they should take cover in the event of a thunderstorm, or an approaching thunderstorm.  By “substantial building,” I mean a fully-enclosed structure, having plumbing and/or a grounded electrical system.  Structures lacking plumbing or electrical fixtures (e.g., picnic or bus shelters, sheds, greenhouses, carports, tents, etc.) are not grounded, and therefore provide no real protection against lightning.

Even within a “substantial” building, employees may not be totally safe.  All windows should be kept closed, until 30 minutes after the last lightning is seen.  Don’t use landline phones, as lightning can travel through phone lines.  Suspend  all work, even indoors, on metal pipes and wiring.  Power tools and machines should be turned off, to protect the equipment from power surges.

The next-best refuge from lightning is a fully-enclosed metal vehicle (car, truck, or piece of construction equipment, provided that it has a totally-enclosed cab).  An open-cab excavator, golf cart, topless, soft-top, or fiberglass vehicle will not serve.  When inside a vehicle during a lightning storm, keep all windows rolled up, put your hands in your lap, and wait out the storm.  You should avoid touching any part of the metal frame, or any wired device within the vehicle (steering wheel, door handles, plugged-in cell phone).  Contrary to widespread belief, the vehicle’s rubber tires do not provide absolute protection.  Don’t park near a tree, or other tall object, that could fall onto your vehicle due to storm conditions.  Be aware, also, of downed power lines that may be touching your car.

Workers need to be trained to take shelter if possible, but also as to what to do if no good shelter is available. If you find yourself outdoors, and cannot get to a grounded building or vehicle, you want to assume a low profile (crouched, on the balls of your feet, like a baseball catcher) with your hands over your ears.  Do not lie flat.  If you can get from higher ground to lower ground, such as a valley or a ditch, you should do so (but watch for flooding!).  If you are with a group of people, you should not be touching one another, or huddled together, but should spread out at least 5 yards apart.  A wooded area, with trees of roughly equal height, is safer than being out in the open;.  You should avoid, however, being close to a tree or a metal structure that is the highest object in its immediate area.

Resist the temptation to put your employees back to work as soon as the rain stops, and the thunder fades to a “low rumble.”  Employees should remain indoors at least thirty minutes after the last flash of lightning.

If anyone on your jobsite is struck by lightning, don’t be afraid to touch them:  they don’t remain electrified.  If the victim is not breathing, administer mouth-to-mouth resuscitation.  If the victim doesn’t have a pulse, CPR should be administered at once, by a person competent to do so.  Have someone summon emergency responders, even if the victim has a pulse and is breathing normally.  While estimates of the survival rate among persons struck by lightning range between about 75% and 90%, long-term, debilitating injuries from lighting may be attenuated, if prompt medical attention is obtained.

We’ve all caught a whiff of hydrogen sulfide gas, with its odor of rotten eggs.  It’s a colorless, extremely toxic gas, produced from decaying organic matter.  It is detectable at concentrations as low as 0.13 parts per million, but a temporary loss of smell (“olfactory fatigue”) can occur at levels of 100 to 150 ppm, which can result in the mistaken, and potentially lethal, belief that the gas has cleared away.

The applicable OSHA construction standard limits H₂S exposure to 10 ppm, with an 8-hour limit.  Exposure to levels above 300 ppm can cause coma in less than 20 minutes, and serious eye damage, while 500 ppm can cause loss of coordination and unconsciousness within 5 minutes.  Exposure at levels over 1,000 ppm can cause almost immediate coma and death.  The inhalation of H₂S can also cause fluid to build up in the lungs (pulmonary edema) 24 to 72 hours after exposure.  Other effects of exposure include nausea, tearing of the eyes, conjunctivitis, headaches, loss of sleep, bronchial construction, fatigue, drowsiness, loss of appetite, headaches, irritability, throat irritation, and coughing.

In the construction industry, H₂S sickness and fatalities are most commonly associated with confined spaces (pits, manholes, tunnels, and wells) and work in or near sewers or landfills.  Work in marshy areas and in hot weather (which accelerates the breakdown of organic material) also heightens the risks of exposure.  In researching this article, I read a nightmarish account of how H₂S (a/k/a “swamp gas”) was released as workers drove test pilings into a 27’ deep pit, excavated on marshy land on a New Jersey barrier island.  A worker collapsed into the pit, and others attempting his rescue were sickened.  Several were hospitalized, one remaining in a coma for five days.  A local police officer fell unconscious, and drowned in water that had accumulated at the bottom of the pit, and approximately 30 area residents were seen in the local emergency room.

The speed at which exposure can cause unconsciousness is sometimes referred to as hydrogen sulfide’s “knockdown effect,” and it can produce both an inability to escape the area of exposure, and serious injuries from falls.  Even workers who do not wholly lose consciousness can quickly become unable to extricate themselves, or respond to instructions.  In some cases, workers who do lose consciousness due to inhaling H₂S, suffer longer-term health effects, including headaches, reduced attention span and memory, cardiovascular and motor problems.

In addition to being highly toxic if inhaled, H₂S is highly flammable and explosive.  As a liquid, hydrogen sulfide can cause frostbite and, as a gas, it burns, and produces sulfur dioxide and other toxic vapors and gases.

To protect your employees, you need to ascertain whether hydrogen sulfide is present and, if it is, at what levels.  OSHA recommends a “Job Hazard Analysis,” to identify sources of H₂S, evaluate potential respiratory, fire, and explosion hazards, and devise control strategies.  A “qualified person” should use proper test equipment (e.g., detector tubes, direct reading gas monitors, alarm-only gas monitors, and explosion meters) to monitor the air before, and at regular times during, any work activity during which H₂S exposure is possible.

OSHA commends OSHA Sampling and Analytical Method 1008, which involves specially-constructed H₂S samplers, containing silver nitrate coated silica gel, and NIOSH Method 6013, in which air samples, collected with a glass tube and sampling pump, are analyzed with ion chromatography.

Whatever testing method you select, do not rely on your sense of smell to monitor the air  Eliminating the source is obviously the ideal strategy — but, if that is not possible, then engineering controls, administrative controls and safe work practices must be effectuated.

Exhaust and ventilation systems are a primary method of reducing H₂S levels.  Because H₂S is flammable and corrosive, it is essential that your system be:

• Explosion-proof;
• Non-sparking;
• Grounded;
• Corrosion-resistant; and
• Separate from other exhaust ventilation systems.

When work is being performed in confined spaces, ventilating systems should be operated continuously, and in accordance with all relevant OSHA standards.

If engineering and administrative controls do not suffice to reduce exposure levels below OSHA’s 10 ppm limit, the employer must provide respiratory protection and other personal protective equipment, including eye protection and, possibly, fire-resistant clothing.  For exposures below 100 ppm, use an air-purifying respirator, equipped with specialized canisters or cartridges for hydrogen sulfide.  A full-face respirator will provide eye protection.

Exposures above 100 ppm are “IDLH,” which means “Immediately Dangerous to Life and Health.”  At these levels, employees need a full-face pressure demand, self-contained breathing apparatus, with a minimum service life of thirty minutes, or a combination full-face pressure, demand-supplied respirator, with a self-contained, auxiliary air supply.

It is mandatory to complete a PPE hazard assessment and equipment selection process, in compliance with OSHA regulations before beginning any work activities in which H₂S may be encountered.  You need to comply with OSHA’S Respiratory Protection standard (29 C.F.R. 1910.134) which includes, among other things, proper respiratory selection, fit testing, medical evaluations, and training.  Respiratory equipment must also be inspected regularly prior to use, and worn or damaged equipment removed from service.  OSHA also publishes a “Small Entity Compliance Guide for the Respiratory Protection Standard” (call 202-693-2300 for help in accessing this material).

Needless to say, if your employees work in confined spaces or are otherwise at risk of H₂S exposure, they must be trained about H₂S hazards, and how to control them.  Training topics should include sources of exposure, symptoms, detection methods, exposure limits, protective workplace practices, emergency plans, rescue techniques and first aid, and confined space procedures.

It is critical that employees be trained, also, in rescue procedures, since there are many stories of multiple fatalities occurring when would-be rescuers are themselves overcome by H₂S while attempting to help others.  Rescuer protection should include positive-pressure, self-contained breathing apparatus, and a safety line, to allow for rapid exit.

Paying special attention to hydrogen sulfide is a “no-brainer,” if your trade involves work in confined spaces, or in proximity to sewers or landfills.  There are other contexts, however, in which exposure is possible (I suspect the workers on the barrier island in New Jersey did not anticipate encountering it) and it is such dangerous, nasty stuff that air monitoring (if perhaps not the full panoply of preventative measures) is a good idea, even if you’re not working in manholes or other confined spaces, where decaying organic matter is likely to be found.

A review of your operations for possible exposure to hydrogen sulfide is an opportune time to review, and to ascertain that you are in compliance with, the updated OSHA rule for construction work in confined spaces, which became effective in August 2015.  The final rule is available online at http://osha.gov/FedReg_osha_pdf/FED20150504.pdf

After a long and somewhat contentious public comment process (that included 14 days of public hearings, and the receipt of more than 2,000 comments totaling more than 34,000 pages of material) OSHA has issued its final rule (with standards for the construction industry and for general industry/maritime) to limit employee exposure to respirable silica.

The final rule takes effect on June 23, 2016, after which construction industry employers will have one year to comply with the rule’s new, more stringent provisions.

The new rule is the culmination of a yearlong effort to cut employee exposure to respirable silica for the first time since OSHA was first enacted in 1971.  It can be read in its entirety at www.federalregister.gov/articles/2016/03/25/2016-04800/occupational-exposure-to-respirable-crystalline-silica.

The dangers of silica have been recognized going back at least to the 1930s, at which time U.S. Secretary of Labor Frances Perkins convened a panel of experts and stakeholders to determine the best ways to protect workers from it.  OSHA estimates that approximately 2.3 million American workers are exposed to respirable crystalline silica in the workplace.  These include about 2 million construction workers who drill, cut, crush or grind silica-containing materials such as concrete and stone, and some 300,000 workers, in a wide range of general industry operations, ranging from brick manufacturing, sandblasting, foundries, and hydraulic fracturing (a/k/a/ fracking) to glass manufacturing, dental laboratories, and jewelry production.  The inhalation of tiny particles of silica can lead to silicosis, an incurable and sometimes fatal lung disease, as well as lung cancer, chronic obstructive pulmonary disease, and kidney disease.

In construction, silica exposure can occur during such common tasks as using masonry saws, grinders, drills, jackhammers, and hand-held powered chipping tools; operating vehicle-mounted drilling rigs; milling; operating crushing machines; and using heavy equipment for demolition or other tasks.

The construction standard does not apply, it should be noted, where exposures will remain low under any foreseeable conditions.  Examples of tasks to which the standard does not apply include mixing mortar, pouring concrete footers, slab foundation and foundation walls, and removing concrete formwork.

Typically, the main line of defense against silica inhalation involves controlling dust with water or a vacuum system, or the use of respirators, where wetting down surfaces and vacuums are insufficient or impracticable.    The main reason why standards are being tightened is that the ones in place are based on research dating back to the 1960s, and silica exposure at levels currently permitted was found to cause lung cancer and kidney disease.  A secondary reason for the new standards is the expansion of new industries, including fracking and stone and artificial stone countertop manufacturing, that entail worker exposure to silica.

The new rule, therefore, reduces sharply — from 250 to 50 μg per cubic meter of air (averaged over an 8-hour shift) — the “PEL” (permissible exposure limit) for respirable silica.  Further, they require employers to:

• Use engineering controls, such as water or ventilation, to ensure that the PEL not be exceeded;
• Provide respirators, when engineering controls do not suffice to limit exposure;
• Restrict access to  high-exposure areas;
• Develop a written exposure control plan;
• Designate a “competent person,” to implement the written exposure control plan;
• Offer medical exams (including chest x-rays and lung function tests) to workers required by the standard to wear a respirator for 30 or more days per year;
• Train workers on silica risks, and how to limit exposure; and
• Keep records of both workers’ silica exposure, and medical exams.

Opposition to the new standards was mounted by groups, including the Associated General Contractors of America and the American Chemistry Council.  Generally, opponents of the new measure maintain that, by more energetically enforcing the existing standards, new silicosis cases could be brought down to almost zero, and that OSHA has greatly underestimated the costs to businesses to implement the new rules.

OSHA claims to have made numerous adjustments in formulating its final rule, with both special flexibility for the benefit of the construction industry, and detailed guidelines as to how workers performing common construction tasks can be protected.  Employers are given a choice between control methods spelled out in Table 1 to the construction standard, and measuring worker exposure and then deciding independently which dust controls work best in their workplaces to keep silica exposure below the PEL.

For example, workers using a hand-held power saw to cut silica-containing materials can, pursuant to Table 1, use a saw equipped with an integrated water delivery system that continuously feeds water to the blade.  If the worker uses the saw outdoors for four hours or less per day, no respirator would be needed.  If the worker uses the saw indoors for any length of time, or outdoors for more than four hours, he or she would need to use a respirator with an “assigned protection factor” of 10 or greater.  A NIOSH-certified facepiece respirator that covers the nose and mouth (sometimes referred to as a dust mask) could be used.  If the worker needs to use a respirator on 30 days or more per year, he or she would need to be offered a medical exam.

Continuing with our example of a hand-held saw, an employer electing not to use Table 1 would have to measure the amount of silica to which workers are exposed, if the same may be above an “action level” of 25 μg per cubic meter of air, averaged over an 8-hour day.

Workers must then be protected from respirable crystalline silica exposures above the permissible exposure limit of 50 μg/m³ (averaged over an 8-hour day).  Dust controls should be used to keep silica exposures below the PEL or, if dust controls do not do the job, respirators should be used instead.

OSHA estimates that, once the new measures are fully in effect (the rules are being phased in over a five-year period) they will prevent approximately 900 new cases of silicosis, and save about 600 lives, each year.

OSHA, by the way, has a number of special programs aimed at helping employers (especially small and medium-sized businesses in high-hazard industries, which describes, I think, many of the readers of this series).  Among these are OSHA’S On-Site Consultation Program, which offers free and confidential help in identifying workplace hazards, advice on complying with OSHA standards, and assistance in improving safety and health management systems.  On-site consultation services are separate from enforcement, and do not result in penalties or citations.  More information is available at www.osha.gov.dcsp/smallbusiness, or by phoning (800) 321-6742.

On a recent appeal from an Administrative Law Judge (ALJ) decision upholding an employer violation of OSHA’S “General Duty Clause,” the Occupational Safety and Health Review Commission (“Commission”) reversed the ALJ, and vacated the citation and assessed no monetary penalty.

The Commission did so, notwithstanding that the citation arose out of an occurrence in Texas in which two employees died, in an active sewer line manhole, from hydrogen sulfide toxicity, and asphyxia due to low oxygen concentration.  The facts in the case were not pretty.  Prior to entering the manhole, the Crew Leader did not discuss either the dangers of entry or emergency procedures with the crew, or perform any air monitoring, complete an entry permit, wear personal protective equipment, ventilate the space, or set up rescue equipment.

How did the employer beat the citation on such awful facts?  Well, actual or constructive knowledge on the part of the employer is an element of every OSHA violation.  When a supervisory employee participates in the violative conduct, under Commission precedents, his knowledge will be imputed to his employer.  In which case, the Secretary will be deemed to have met his burden of proof as to “knowledge,” without the need to prove any defect or inadequacy in the employer’s safety program.  That’s the “majority rule.”

Happily for the employer, the sewer line fatality appeal was decided in the employer’s favor because the Fifth Circuit (which includes Texas) has a rule in common with the Third Circuit (which includes New Jersey) that imposes an additional proof burden on the Secretary.  This “minority rule,” which governs in three Circuits, is more favorable to the employer than the Commission precedent.  Where the minority rule applies, the Secretary, in a case involving the misconduct of a supervisor, must prove also (for the supervisor’s misconduct to be imputed to his employer) that the supervisor’s misconduct was foreseeable.  To accomplish that, the Secretary must show that the employer’s safety program was inadequate. Not having made such a showing, the Secretary in our Texas sewer line case did not succeed on appeal.

If this rule on imputation were the decisive issue on your next OSHA case, and you had been cited in New York and the ALJ ruled against you, there might be a way to get that outcome reversed, if you could get your case examined, on appeal, where the minority rule applies.  Despite your citation having arisen within the Second Circuit, you would probably get the advantage of the minority rule, if your company’s headquarters are in New Jersey (or anywhere in any of the eleven states that make up the Third, Fourth, and Fifth Circuits).

Thus, a key part of evaluating an employer’s prospects in an OSHA appeal (and a strategic consideration ideally addressed at the trial level) is to identify the critical legal issues, and to investigate whether the outcome might vary, according to whether the same were to be determined under the Commission’s own precedents — or, in the alternative, in one or another of up to three Courts of Appeals by which an appeal might be heard.  (This process is what we refer to as “forum-shopping”).

As you probably know, a majority of the states are overseen by federal OSHA, but others have state-administered “Little OSHAs.”  In states having “Little OSHAs,” trials and appeals are not as described in this article, but generally are conducted in the administrative agencies, and the courts, of the individual State.  While New York, New Jersey and Connecticut do have OSHA-approved, state-administered plans for public sector employment, private sector employers are under the jurisdiction of federal OSHA.  Thus, when your construction company gets cited anywhere in our tri-state area, it will be federal OSHA that issues the citation.

Congress having decided to separate enforcement and adjudicative functions in setting up OSHA, the OSH Act of 1970 created the Commission as an administrative court in (federal) OSHA matters.  “Commission” means both [a] the agency within the U.S. Department of Labor that administers contest proceedings, and employs the ALJs who conduct the trials of such matters, and also [b] the panel of three Commissioners, appointed by the President, who act as an appellate tribunal, where either the respondent or the Secretary disputes the ALJ’s decision as to the violation and/or the penalty.

OSHA appellate practice differs in many respects from appeals in state and federal court systems.  Most state court systems grant a party losing at trial at least one appeal “as of right,” but OSHA appeals are by permission only.  Generally, an appellant in state or federal court has one court only in which to pursue his appeal; under OSHA, he may be able to choose from as many as three.  Another peculiarity is that the Commission, unlike any appellate court of which I have knowledge, has authority to direct the review of an ALJ decision, even in a case in which neither party has requested it.  (This power is infrequently invoked, except to address novel issues, or where ALJ decisions involving similar facts and legal rules have produced inconsistent outcomes).

An ALJ decision not reviewed becomes a “final order” after 60 days but, unless reviewed by the Commission and/or by a Court of Appeals, it does not acquire the force of a legal precedent binding in subsequent cases (although a court in a later case may consider it, as “persuasive authority”).  If the employer wishes to challenge not only the penalty amount, but also the merits of the citation, its petition for review must clearly so state.

If the Commission grants the request for review, it may review any issue raised in the request, or any other issue on its own motion.  Within the range of penalties authorized by the OSH Act, it can not only reduce or vacate, but it can also increase, the penalty imposed by the ALJ.  As an appellate tribunal in operation for 45 years, the Commission has developed an ample body of its own legal precedents.  Usually, however, the Commission will state, and apply, the law of the Circuit to which it expects any petition for appeal to be directed, as a federal Court of Appeals is a higher judicial authority than the Commission.  Of course, not every issue of interpretation of the OSH Act, or OSHA’s myriad standards, will have been addressed by every Circuit.  In the absence of an inconsistent rule from the Circuit to which an appeal is thought to be likely, the Commission will apply its own precedents, if any, or will decide the issue, in its discretion, as a “matter of first impression.”

A final order of the Commission (that is, the Commission’s decision upon review, or an ALJ decision deemed “final” because the Commission has declined to review it) can become the subject of a petition, by any party, for review by any of the U.S. Courts of Appeals for the Circuit (1) in which the alleged violation occurred; (2) in which the employer’s principal place of business is located; or (3) the District of Columbia Circuit.  Review by a Court of Appeals is discretionary, and not a matter of right.

More often than not, in light of the modest penalties in most OSHA cases, your citation will not merit the costs of an appeal.  Even where an appeal might be worthwhile, litigating in a potentially distant court may increase the expense beyond what is prudent.  Assuming, however, that you have identified a sufficient reason to consider even an initial contest and an ALJ trial, you should ask experienced OSHA counsel to evaluate what are the rules that govern your citation, what the Circuits are that might ultimately hear an appeal from an adverse ALJ decision, and whether one forum or another might have a rule affording you better chances for success.

In a given case, “forum-shopping” could benefit you, without even having to litigate your citation.  While such scenarios may be unusual, it could occur that although you have been cited in New York, the Eighth Circuit has a unique rule on the legal issue determinative of your contest, and your company happens to be based in Omaha.  By pointing this out to OSHA’s attorneys even before the ALJ hearing, not inconceivably you could get your citation downgraded, with penalties reduced, or even withdrawn

A major subset of “struck-by” injuries in construction is “backover” injuries, which occur when a backing vehicle strikes a worker or bystander who is walking, standing, or kneeling behind the vehicle — most often in the vehicle’s “blind spot.”

While vehicles passing at highway speeds are a well-recognized hazard, backover incidents occurring behind the barricades in the work zone cause as many, if not more, fatalities on highway projects.  (Between 2003 and 2010, backover fatalities on highway projects alone occurred at the rate of about 1.5 per month.  Overall, in 2011, backover fatalities, which are not confined to roadway jobsites, occurred at the rate of approximately 6 each month). Substantially all of these deaths are preventable.

Most vehicles in common use in construction now come equipped with backup alarms and operating lights, but while these are necessary, they are not in themselves sufficient.  Alarms may not function properly, and may not be heard because of other worksite noises.  Construction work zones can have a lot of things going on at once, and workers are vulnerable to being distracted.  Vehicle operators often just assume that areas to the rear of their vehicles are clear.  If your personal automobile is a newer model equipped with a rear view camera with dashboard monitor, chances are that you have had the experience of starting in motion in reverse, before checking the monitor, only to have to stop short upon seeing something behind you.

Provided that spotters, equipment and vehicle operators, and “foot workers” are all  properly trained, the use of spotters should reduce — although it will not necessarily eliminate — the danger of persons being killed or injured in backover incidents.  For example, a spotter, assisting the driver of one vehicle, may not detect a different vehicle approaching from outside his field of vision.  In other instances, the driver may take for granted that his co-workers know better than to kneel within a few feet to the rear of a truck with its engine on and an operator visible in the driver’s seat, only to find, inexplicably, a worker doing precisely that, despite having been trained.

The #1 contributing cause to backover accidents overall is that rearview mirrors (and cameras) on vehicles have blind spots, and those on dump trucks and other large vehicles commonly found on construction sites generally have larger blind spots than your Camry or your Lexus.

So, what should you do to avoid backover accidents?  First, if your employees work more than very rarely in situations where vehicles (notably, dump trucks, which are involved in about three-fifths of backover injuries) and equipment (notably, forklifts) will be operated in reverse, preventing backovers needs to be recognized as a primary topic of your company’s safety program and training.  Your company needs to articulate, implement, and enforce safety rules and procedures, that will minimize dangers from working on foot in proximity to vehicles and equipment.

Your vehicles should be equipped with cameras and in-vehicle display monitors (as well as rearview mirrors and audible backup alarms, of course).  Vehicles and equipment should be inspected at the beginning of each work shift, to ensure that safety devices (windows and mirrors, as well as brakes, lights, horns, and reverse alarms) are all in good working order.  Windows and mirrors must be clean and properly adjusted.  Defective vehicles, equipment, and safety devices should be reported at once, and taken out of service until repaired.

Especially if vehicular traffic in your work areas is at times heavy, or includes semis or other large vehicles, you should consider the use of proximity-warning systems (radar and sonar devices, or tag-based electronic systems that alert drivers when other employees are behind the vehicle, and also alert employees when they walk near a vehicle equipped to communicate with the tag worn by the employee).

In selecting vehicles and equipment to purchase or lease for use by your employees, you should choose vehicles and equipment outfitted with rear-vision cameras and/or proximity warning systems, and give consideration to whether items considered for purchase or lease has been designed to minimize “blind” areas.

Your supervisors, especially, should be well-trained, so as to be thoroughly familiar with backover hazards, and assured that management is serious about preventing injuries of that kind.  Before your workers are put to work in the field each day, their supervisors should have made appropriate inquiries of the prime contractor and other trades, and should apprise employees under their supervision of expected changes in traffic flows and equipment usage.

The start of each shift is also a good time to go over communications signals (flags, verbal, and/or hand signals) to be used among spotters, flaggers, machine operators, truck drivers, and persons working on foot.

If you work at night, everyone should be equipped with high-visibility apparel, and special attention should be paid to ensuring adequate lighting, especially in zones in which workers may be in proximity to vehicles and equipment.

Visibility, when vehicles are operated in reverse, is generally poorer than when in forward gear, so you should employ all reasonable measures to minimize the occasion to operate vehicles in reverse.  Most projects can be designed and laid out with internal traffic controls, to channel the operation of vehicles, reduce the need to back up, and to minimize foot traffic in proximity to where vehicles will be operated.  Barrels, portable barricades, and traffic cones should be deployed, to channel construction vehicles and equipment away from workers, and signs should be installed to caution workers with respect to traffic areas, vehicle flow, and areas that are off-limits to workers on foot.

Certainly if your trade involves working on roadways, you need to know, and comply with, Subparts “O” and “G” of 29 C.F.R. 1926, and the Manual on Uniform Traffic Control Devices.

Training the rank-and-file is a key element of preventing backover accidents, and particular emphasis should be given to heightening employee awareness of the extent to which blind spots are greatly more extensive around dump trucks and other vehicles likely to be found on construction sites, as compared with passenger cars and SUVs.  For that purpose, I am attaching a link that you might find useful in making handouts for a toolbox session on the subject: http://www.cdc.gov/niosh/topics/highwayworkzones/BAD/imagelookup.html.  (Blind spots are shown for a variety of common vehicles and equipment.)

A good method to drive home just how large “blind spots” can be is to seat each employee in the driver’s seat of a vehicle of a kind likely to be in operation on your work sites.  Then, have other employees station themselves (in kneeling, as well as standing positions) in the various locations constituting the vehicle’s blind spots.

Excepting, possibly, your most trusted supervisors, employees must not only be told not to use cell phones, mp3 players and similar devices while working, but should be required to stow such items in their personal vehicles.  Most jobsites are simply too dangerous to allow distractions of the kind.

And, just as you cannot remind your workers too frequently that no one works on a roof or other elevated surface without fall protection, you must remind them unceasingly that no one should ever operate (or allow anyone else to operate) a truck or forklift in reverse gear, except under the direction of a spotter. 

Like fall protection, backover (and other vehicular “struck-by” hazards) present dangers that, however well-known they become to your workforce, are all too likely to be disregarded.  How often do you see workers on elevated surfaces, wearing fall-protection harnesses, who have not bothered to tie off?  Accordingly, this is a safety topic to which you need to return, time and again, with your employees.

If your trade requires employees to work on elevated surfaces, fall protection is probably the most important aspect of your safety program.  In issuing citations for fall-protection violations, OSHA generally cites a total failure to employ fall-protection measures, or the failure by one or more employees to be tied off at all times.

While not being tied off may be the most common predicate for fall-protection citations, OSHA can and will cite you for improper (or improperly-affixed) anchors.  The anchor acts as a base to secure the retractable or the lanyard, when employees are working on elevated surfaces.  The anchor must be correctly secured to a structural member capable of supporting 5,000 lbs. (for each worker who is to be fastened to it).

There exist a wide variety of types of anchors, such as roof anchors for residential or commercial roofing, beam anchors for steel erection, concrete anchors for concrete masonry, and various kinds of specialty anchors.  Online, you can find vendors that specialize in fall protection equipment, and they can help you choose equipment appropriate to the work that you do.

In addition to picking the right kind of anchor, it is crucial to follow the manufacturer’s instructions to ensure a secure installation.  In a recent OSHA case, the employer was using a roof anchor, with two hinged flanges allowing the anchor to be used over a roof’s peak.  Each of the flanges was supposed to be attached with screws to opposite sides of the peak.  The ALJ affirmed a “Serious” OSHA citation, where the employer had an employee tied off, but only one flange of the anchor was screwed down.

There are additional issues with fall arrest systems.  One is that the harnesses are often worn too loose.  Another is that shock-absorbing lanyards are sometimes used in areas with inadequate fall clearance.  A retractable lifeline or fall limiter should be used where appropriate.  Also, to the extent possible, the anchorage should be positioned directly overhead, to avoid a “swinging fall injury,” and the equipment should be set up to limit the free-fall distance to a maximum of six feet.

Using equipment beyond its useful lifespan is another common, and potentially disastrous, error.  Equipment must be inspected regularly.  Pay particular attention to your lanyards, and look for fraying, cuts and deformed metal hardware. Discard and replace any equipment you even suspect of being defective or worn.

Manufacturers’ instructions for all fall-protection equipment need to be communicated to all who will be using it.  Technical terms must be explained, and extra effort expended, as may be necessary to make sure that the information is expressed in language that each worker understands.

Trainers need to be OSHA “competent persons,” and able to explain:

• The nature of fall (and other) hazards at the worksite;
• Procedures for erecting, maintaining and disassembling fall protection systems, and personal fall arrest systems; and
• The proper use and operation of personal fall-arrest equipment, and such other fall-protection systems as may be employed.

Many employers (and safety professionals and first responders) are unaware of the phenomenon of “suspension trauma,” which may occur where the worker is suspended in an upright posture, with legs relaxed beneath his body.

Where a fallen worker is suspended in a harness, gravity pulls blood into his lower legs, and the harness exerts pressure on the veins in his legs.  Within minutes, enough blood accumulates in the legs that return blood flow to the right chamber of the heart is reduced.  The heart’s output begins to fall, whereupon the heart starts beating faster, to maintain adequate blood supply to the brain.  The upright posture will be maintained, even if the worker loses consciousness, which can occur in as little as five minutes and may be followed by death.

Thus, employees and rescue workers must be made aware that a worker suspended erect in a fall-arrest harness is in a potentially fatal situation.  OSHA does not prescribe how quickly a suspended worker must be rescued, but you should aim at limiting time in suspension to five minutes or less, and certainly not more than 15 minutes.

Worker training should include employees gaining (under competent, close supervision) experience in hanging in a harness of the type they will be using.   Workers should be instructed in advance, and reminded in the event of a fall, that they should try to push, using their legs, against any available surface.  If that is impracticable, they should try to maneuver their legs as high, and their heads as close to horizontal, as possible.  Newer equipment features harnesses with a seat and/or “suspension trauma straps,” which can be deployed to ease the strain on leg (and shoulder) straps while awaiting rescue.

Additional measures can be taken to mitigate the dangers of “suspension trauma.” First, avoid allowing anyone to work in a fall-arrest harness alone, or in circumstances in which a fall would not be quickly noticed.  Especially if workers must work with minimal supervision, they should be instructed to affix their lanyards to front (stomach or chest) rather than rear (back) attachment points.  This will aid the worker, if conscious and uninjured, with self-rescue.

Gradual arrest devices can reduce the danger from deceleration injuries.  Locating the tie-off attachment of the harness as near as possible to the body’s center of gravity may also reduce whiplash and other traumatic injuries.  In addition to which, it should make it easier for the employee to move his legs upward, and head downward, while suspended. Self-retracting lifelines, which are available in a number of models, can be set to slowly lower the worker to the ground.  Assuming that the fallen worker remains conscious, and is not badly injured, in most cases a self-retracting lifeline should permit self-rescue, and eliminate the need for a coordinated response from others onsite, or outside rescue forces.

All workers should be trained and re-trained to avoid moving victims rescued after losing consciousness to a horizontal position too rapidly.  Between 30 and 40 minutes is the recommended interval to move the victim from kneeling, to sitting, to a supine position.  Deaths following rescue have occurred, where the worker has been placed at once in a horizontal position.  This is believed to be due to the heart’s inability to tolerate a sudden increase in blood flow to the right heart, following removal from the harness.  Since EMTs and other first responders may be unaware of this danger, preparing and affixing cautionary labels to each worker’s harness is a good idea, and your workers be trained to warn them in appropriate terms.

  Finally, advance planning should precede every project.  You must anticipate the likelihood that falls will occur, and have a plan to rescue fallen workers (and to get them competent medical attention) ideally in under five minutes.  Calling “911” is not enough.  The nearest rescue may be too far away, lack necessary equipment, or lack training for confined-space or tower rescue.

Rescue planning should begin when you select and purchase fall-protection equipment, and be revisited and revised to take into account the peculiarities of every new project and jobsite.  Especially if circumstances may make speedy rescue problematic, you should consider strategies (such as alternative modes of fall protection, or restricting worker access to areas near the edge of elevated surfaces) to reduce the risk that fall-arrest harnesses will actually come into use.

Proper fall protection is more than just purchasing any old equipment, and nagging your employees to wear it, and to always tie off.  Proper anchoring (the right equipment, correctly installed) and planning for rescue when and if falls occur, are essential aspects of the process.

Construction standards under the Occupational Safety and Health Act are the primary source of safety rules that must be observed in construction (and demolition and excavation) operations.  In New York, New Jersey, and Connecticut, federal OSHA governs substantially the entire non-governmental workforce (except for employees covered under other federal safety laws, as govern certain mining and railroad employment, among others).

Many other states have “Little OSHAs,” with enforcement administered by state OSH agencies, using rules that are usually identical to, but must be at least as protective as, those under the federal OSH Act.

OSHA regulations, as I suspect you are already aware, are enforced around the tri-state area by federal inspectors, and violations can result in citations and monetary penalties.  (Apropos of monetary penalties, see the “Alert” at the end of this article).  In addition to OSHA, you are probably aware of Labor Law § 200, which codifies the common-law duty placed on owners and contractors to provide employees with a safe place to work.

You are no doubt aware, also, of Labor Law § 240(1) (the notorious “Scaffold Law”) which, in addition to providing workers with protection against most gravity-related injuries (i.e., those resulting from falling workers, and objects falling onto workers) essentially carves out gravity-related injuries from the usual rule in tort cases, by providing that the injured worker’s “comparative negligence” will not be considered by the fact-finder in reduction of damages.

However, there is yet another, rich source of duties imposed by New York State affecting construction, demolition, and excavation:  the relatively little-known Industrial Code.

First promulgated prior to the enactment of OSHA, the Industrial Code contains a multitude of health and safety rules affecting many activities:  handling, storing, and transporting explosives, carnival tents, window-cleaning, aerial acts at the circus, and places of public assembly, to name just a few.

Of particular interest to us is Industrial Code Part 23, applicable to construction, demolition, and excavation operations.  These provisions appear to have been added in 1972, a year after the OSH Act was enacted by Congress.  While we assume that the New York State Department of Labor could carry out inspections and force compliance and impose penalties if it chose to do so, we are not aware of regular, ongoing enforcement activities corresponding to those carried out by OSHA.

However, as with Labor Law §§ 200 and 240(1) mentioned above, there is an alternative, indirect means by which the Industrial Code’s Part 23 standards are enforced.  Namely, Labor Law § 241(6) imposes a non-delegable duty on owners and contractors to provide reasonable and adequate protection and safety to workers.  The cases impose liability for injuries resulting from the failure to comply with relevant Industrial Code provisions — limited, however, to specific, implementing regulations (as distinct from provisions stating only generalized requirements for worker safety).

Industrial Code Part 23 (accessible online) states that the same is directed to dangers associated with:

• Falls, and falling objects and materials;
• The operation of vehicles and of construction, demolition and excavation equipment;
• Fires, explosions and electricity;
• The use of and contract with dangerous tools, machines and materials;
• The handling and movement of heavy materials; and
• Exposure to the elements and to air contaminants.

You or your safety manager should become thoroughly familiar with Part 23 (which is much more concise than the OSHA construction standards).  Following a “Definitions” section, there are roughly two dozen “General Provisions” governing such matters as PPE, drinking water and sanitation, hand tools, lumber and nail fastenings, etc.

There follows a section captioned “Construction Operations,” with sub-parts addressing:

• Maintenance and housekeeping;
• Concrete work;
• Structural steel assembly;
• Flooring requirements in building construction;
• The protection of persons in shafts;
• Falls, and falling objects and materials;
• Requirements for catch platforms;
• Painting; and
• Stairway requirements during building construction.

The “Demolition Operations” section of Part 23 has sub-parts captioned, “General Requirements,” “Special Approval Required,” and “Demolition By Hand.”  The “Excavation Operations” section has, in addition to “General Requirements,” a sub-part heading for “Trench and Area Type Excavations.”

Additional sections of Part 23 address the following topics:

• Mobile cranes, tower cranes and derricks;
• Power-operated equipment;
• Exhaust gases from internal combustion engines; and
• The use of explosives.

The New York Appellate Division held, in Irwin v. St. Joseph’s Intercommunity Hospital (1997) that the OSH Act has not pre-empted New York State’s requirements for construction safety, set forth in the Industrial Code.

Although the New York DOL certainly does not have enforcement activities comparable to OSHA’s, and the relevant Industrial Code provisions are not radically different from those under the OSH Act, they do have the force of law, and you should know and comply with them.

Important Alert!  OSHA Penalties to Increase Sharply in 2016!

A provision in the Bipartisan Budget Act of 2015 requires OSHA to increase penalties for violations from year to year, to reflect increases in the Consumer Price Index.

As of August 1, 2016, there will be a whopping, one-time increase in OSHA penalties, to catch up with the fact that the penalties (presently, $7,000 maximum for each “Serious” citation item, and $70,000 maximum for “Repeat” or Willful” items) may go up as much as 150% (although OSHA is authorized to implement smaller increases, if it deems that negative economic or social effects would result from the maximum authorized increases).

In 2017 and subsequent years, increases are to be in line with year-over-year increases in the Consumer Price Index.

An unintended consequence of these projected increases is that, as the amounts at stake go up sharply, employers are likely to become more ready to contest violations and penalties.  Although OSHA, which uses the services of a cadre of knowledgeable, salaried attorneys employed by the Solicitor of Labor, has a considerable advantage in contest proceedings (one of which being that its attorneys are not paid at private attorneys’ hourly rates) OSHA could find itself swamped with an increased number of contests that have to be tried, at increased costs to the government.

However, while for years we have stated that most OSHA citations are important chiefly for their long-term impact on your business, from next summer on, the dollar penalties will become appreciably more significant.  Redoubled efforts to comply with OSHA are called for accordingly.

As we all know, construction is a hazardous occupation, even when those running the project are paying attention, and using their common sense.  We want to believe that, almost all of the time, our colleagues in the industry are making efforts, in good faith, to keep their employees safe.  Now and then, however, I see cases, such as the one described below, that make me wonder.

The respondents in the OSHA case to be discussed were two related, family-owned companies, which got subcontracts to provide steel erection and masonry work at a mixed retail/residential project under construction in Long Island. The site was on a street corner, with power lines running along both streets.  The lines, each of which carried 13.2 kV, shared a common pole at the corner.  This “Pole #3” was about 10 degrees out of plumb, and encroached over the footprint of the building.  The line running along Fourth Street to Pole #3 fed electricity to several downstream customers and, being a “dead-end” line, could not be rerouted.  Because of that, de-energizing the Fourth Street line connecting at Pole #3 was not practicable.  That line would have to be moved further away from the worksite (at a cost of about $70,000).  The line running along Brooklyn Avenue to Pole #3, however, could be rerouted, and the line de-energized.  At a pre-job meeting, an in-house architect working for the general contractor offered to take the matter up with LIPA (the Long Island Power Authority).

In July 2012, an engineer from LIPA visited the site, and saw that a mobile crane was situated on Brooklyn Avenue, close to the Fourth Street Side.  The crane, he observed, was operating within 10’ of the power line on Brooklyn Avenue, and neither of the two power lines had been de-energized.  He issued a “Cease and Desist” order, directing that work be stopped until the lines were de-energized.  The Brooklyn Avenue line was de-energized, and grounding devices placed on it, but the Fourth Street line could not be de-energized, because there was no feed coming from the other side to pick up downstream customers.

Sometime afterward, in August 2012, another LIPA representative visited the site.  Work had resumed, the crane was now situated on Fourth Street, and it was being used to lift loads over the energized, Fourth Street power line onto the construction site.  Concerned that workers’ lives were in jeopardy, the LIPA representative told a supervisor of the crane company that the crane had to come down.  The following day, LIPA issued a (second) “Cease and Desist” order.  That order was lifted when the crane was moved back to Brooklyn Avenue, on which the line was de-energized.

The GC’s architect spoke with LIPA about relocating the Fourth Street line.  The architect suggested that the masonry subcontractor work on the Brooklyn Avenue side of the building, but did not forbid them to work on Fourth Street while the power line remained “live.”

Although the architect would later testify that he didn’t think that anyone onsite fully understood the danger, or know how much current was going through the lines, or how far away workers had to remain to be safe, both the Cease and Desist order, and the Notice to Precede that lifted it, specifically stated that the lines carried 13kV.

OSHA did not inspect the site until more than three months later, in December 2012.  By that time, the masonry sub had done some foundation work and steel erection, and was performing masonry block and concrete plank installation on the third floor.  Although the crane was situated on Brooklyn Avenue, it was lifting the planks over the Brooklyn Avenue power line and brining them within 8’ of the still-energized Fourth Street line, before setting then down on the worksite.

The OSHA inspector informed the employer’s foreman that the Fourth Street power line represented an imminent danger, and asked that employees be removed from the hazard.  He told the employer that the planks should not be installed, but staged outside the worksite, or installed at another part of the building, at a safe distance from the line. The subcontractor balked at the cost of returning the trucks with the planks to the manufacturer, and indicated that the subcontractor could not stage the planks outside the work area.  It assured the OSHA inspector, however, that it would continue to set planks in other areas of the structure, but not encroach on the energized line.  A number of violations were issued following this inspection.

No sooner had the OSHA inspectors left the site, however, the employer resumed installing planks along Fourth Street, up to and past the corner where the power line, on the out-of-plumb pole, now hung directly over the building.  As the plank installation progressed toward the corner, the crane got progressively closer to the Fourth Street power line.  The workers also continued to build the masonry wall at the corner of Fourth and Brooklyn.

As the wall rose vertically, it, too, got closer to the Fourth Street power line.  Sometime after the first OSHA inspection, the masonry wall exceeded the height of the Fourth Street line.  Because Pole #3 was out of plumb, the line crossed the plane of the wall.  In order to be able to continue to build the wall, the subcontractor created a 5” x 5” hole for the line to pass through.  As the line entered the wall, it was covered by some sort of insulation material.

When LIPA’s design engineer arrived at the site, and saw the wall built around the wall, he expressed astonishment that no one had been killed.  He ordered work to be stopped and, concerned that work would resume once he left the site, he called the police to shut the site down.  LIPA referred the matter to OSHA, which led to additional violations being issued.  Violations issued separately to the two, related employers were consolidated, upon which they numbered two “Willful,” eleven “Serious” and one “Other-than-Serious” in all.  “Willful” violations, of course, are those committed with “intentional, knowing or voluntary disregard” for the requirements of the OSH Act, or with “plain indifference to employee safety.”  They carry monetary penalties of up to $70,000.00.

At the trial, it was estimated that employees had worked as close as four inches to the energized Fourth Street power line, and had phase-to-phase exposure because, while building the wall, they were working between the innermost and middle overhead power lines on the Fourth Street circuit.  It was determined, also, that whoever installed the insulation sleeve on the line had to do so with their hands.

The ALJ dismissed as self-serving and not credible assertions by the subcontractor’s co-owner and primary witness that he was unaware, until the time of the second inspection, that the Fourth Street line remained energized, and that the wall was being built around it.  OSHA had presented multiple options, as would have enabled the respondent to continue working, until problems with the Fourth Street line were resolved.

What the employer tried to characterize as merely “poor planning,” the ALJ found, was really a lack of care, as further evidenced by its repeated disregard of warnings concerning a potentially fatal hazard, its resumption of work close to the line after promising the OSHA inspector that an adequate clearance would be maintained, and the necessity to issue three “Cease and Desist” notices — and even to obtain police intervention — to ensure that the employer discontinue its hazardous activities.

 The “Willful” violations were affirmed, as were a dozen lesser violations,  and penalties aggregating over $175,000.00 were imposed.  This ALJ decision is pending Commission review, but, based on the egregious facts, I will be amazed if the “Willful” characterization of the violation for working so close to an energized power line is disturbed.