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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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