If divers are employed from time to time on your projects, you should become familiar with OSHA regulations concerning diving operations. While this may be specialized work ordinarily done by subcontractors, remember that if you are the general contractor on a project, you may be liable under OSHA’S “multi-employer doctrine” (as the party with general supervisory control over the worksite) for violations exposing divers to hazards. The general contractor’s duty, as you know, runs not only to its own employees, but “extends to protection of all worksite employees.”

Section 1910.422 of the Code of Federal Regulations, “Procedures during dive,” sets forth the required safeguards. To abbreviate the rules slightly, the regulation addresses eight aspects of diving operations.

Water entry and exit. The first is entry to and exit from the water. There must be “means capable of supporting the diver” for entering and exiting the water. The means of exiting the water must extend below the water surface, and there must be means to assist an injured diver from the water, or into a bell.

Communications. Operational, two-way voice communication systems must be used between each surface-supplied air or mixed-gas diver and a dive team member at the dive location or bell, and (if used) the bell and the dive location.

Decompression. Decompression, repetitive, and no-decompression tables (as appropriate) shall be at the dive location.

Dive Profiles. A depth-time profile (including, when appropriate, andy breathing gas changes) must be maintained for each diver during the dive, including decompression.

Hand-Held Power Tools and Equipment. Such tools and equipment must be de-energized before being placed into or retrieved from the water. They must not be supplied with power from the dive location until requested by the diver.

Welding and Burning/ A current supply switch to the welding or burning electrode must be tended by a dive team member in voice communication with the diver performing welding or burning, and kept in the open position (to interrupt the current flow) except when the diver is welding or burning. The welding machine frame must be properly grounded. Cables, electrode holders, and connections must be properly insulated, and rated for the maximum current required by the work. Divers performing these operations must be furnished with insulated gloves. If closed compartments, structures or pipes which are to be welded contain flammable vapor, or if the work itself may generate such vapors, they must be vented, flooded, or purged with a mixture of gases which will not support combustion.

Explosives. If explosives are to be used in conjunction with diving operations, the regulation cross-references Sections 1910.109 and 1926.912 of the Code of Federal Regulations, which regulate the transport, storage, and use of explosives. The electrical continuity of explosive circuits must not be tested, until the diver is out of the water, and explosives must never be detonated while a diver is in the water.

Termination of the Dive. The working interval of a dive must be terminated if the diver requests it, if he fails to respond appropriately to communications or signals from a dive team member, or if communications are lost and not quickly restored between the diver and dive-team member at the dive location (or between the person in charge, and the person controlling the vessel in liveboating operations).

In Lanzo Construction Co., Inc. v. OSHRC, the contractor was employed by the Miami-Dade Water and Sewer Department to install a force main sewer pipeline. The work required a diver to go into excavated trenches, filled with murky water in which visibility was zero, to assist in connecting sections of the pipeline.

The OSHA compliance officer found the contractor’s diver under about ten feet of water in an excavated trench. The diver , using surface-supplied air diving equipment, communicated via pull and tug signals with a line tender at the surface.

Although parts of the excavation in which the diver was working were protected against cave-ins by trench boxes, the contractor considered that installing protection against cave-ins at the portion of the trench that intersected utility lines was more dangerous than using a trench box there. Of course, it was in this unprotected area that the OSHA inspector happened upon the contractor’s diver.

The published decision from the 11th Circuit U.S. Court of Appeals in Atlanta omitted a full list of the seventeen violations for which this contractor was cited. For purposes of the appellate case, the two that remained unresolved were the failure to provide a two-way voice communications system, and the failure to provide protection against cave-ins in the portion of the trench in which the diver was observed working.

In the Lanzo Construction case, a lawyer for the Department of Labor had, during proceedings prior to the hearing before the Administrative Law Judge, committed an ethical violation by twice contacting the diver, without the consent or knowledge of the employer’s attorney. Hoping, possibly, to downplay these incidents the ALJ found only “serious” and not “willful” violations of the two standards mentioned, even though (with reference to the two-way communications system) the employer had been cited three years previously for the same violation, the diver testified that an operational two-way voice system had not been in use for three years prior to the current citation, and the company’s own safety manual required it.

The OSH Review Commission upgraded the violations to “willful,” and rebuffed the employer’s attempt to fashion a defense of “good faith” to the violations

As for the unauthorized contacts by the government lawyer, these were criticized, but the Court of Appeals determined that they had not actually prejudiced the employer. Accordingly, the Court upheld the decisions below, which denied dismissal of the violations, based on these ethical violations.

The potential repercussions of a “willful” OSHA violation, of course, far surpass the small cost to the employer of providing the two-way voice communications for its diver. Having once been cited for this violation, this contractor effectively invited a second, “willful” violation. While, certainly, there are OSHA regulations that are complex and highly technical, the rules for diving rules are largely matters of common sense. If your company employs divers, or divers work at your jobsites, it’s in your interests to ensure that these rules are complied with.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

Following up last month’s article, let’s survey some OSHA cases for lessons about particular issues relating to excavations, and some practice pointers as well.

In Secretary of Labor v. McLeod Land Services, Inc. the inspector found two employers in a trench, as sections of pipe for a drainage line were being installed. A 154,000-pound excavator was hanging over the end of the trench. The vertical wall that supported the excavator was not shored, braced or supported. When the compliance officer ordered work to stop, the excavator had just been used to place an 8-foot section of 24″ concrete pipe. The excavator bucket was hanging above that pipe, and one employee in the trench stood directly below the bucket and the excavator arm.

The employer was cited for failing to protect its employees from equipment that could pose a hazard by falling or rolling into excavations, in violation of 29 C.F.R. ¬ß 1926.651(j)(2). The employer was also found to have violated OSHA standards that require daily inspections of excavations by a “competent person,” and that the employer instruct its employees in the recognition and avoidance of unsafe conditions, and the regulations applicable to his work environment.

A thread common to each of the OSHA violations in McLeod Land Services is that employers cannot rely upon the experience of its employees. “An employer has a duty to provide adequate training even if employees are experienced.” In McLeod, foremen and management employees received comprehensive materials on excavation and trenching, but “rank and file” employees received only a “mini” version of that manual. The company relied on foremen to relay information from monthly safety meetings to rank and file employees, but there were no regularly-scheduled toolbox talks, and attendance was optional at meetings for non-supervisory personnel. The employer did nothing to ascertain that the workers actually read and understood the abbreviated safety manual they were given. The Commission found this to be insufficient.

In Secretary v. Lakeland Enterprises of Rhinelander, Inc., a co-owner of the employer was excavating an 18-foot deep trench, as an employee in the trench dug by hand around a sewer pipe, so that the backhoe would not rupture the line. There was a ladder lying alongside the trench, but no ladder in the trench, to provide a means of egress for the employee. We note this case for three points. First, a safety program that looks good on paper, but is not sufficiently communicated to employees (and enforced) is useless as a defense. Second, in Lakeland, the backhoe operator did not order the endangered employee out of the trench, but continued to dig out the nearly vertical trench wall close by, actually increasing the danger. Third, it can negate an “unavoidable employee misconduct” defense, and support a finding that a violation was willful, that an owner or other supervisor ignored the violation, and the safety of the employee.

A similar lack of common sense was displayed by the employer in Secretary of Labor v. B&B Plumbing, Inc. In that case, the principal of a sanitation plumbing contractor, engaged in building a school, found that, due to a pipe not shown on the plans, a 75-foot long, unshored trench, that was to have been a maximum of 4′ deep, was 8′ deep in places, with vertical sides and no ladders. The contractor “knew shoring was necessary in an 8 foot deep trench, but he did not have the equipment.” Employees were allowed to work in the trench, and one died in a cave-in in the 8′ depth area. “Where the competent person finds evidence of a situation that could result in a possible cave-in” or other dangers, “exposed employees shall be removed from the hazardous area until the necessary precautions have been taken to ensure their safety.” 29 C.F.R. ¬ß 1926.651(k)(2). This employer was cited also for violating the “no-brainer” OSHA standard that employees working in trenches should wear hard hats. 29 C.F.R. ¬ß 1926.28(a).

Similarly, in Secretary v. RMS Construction, Inc., in addition to allowing employees to work in an unshored, unsloped trench as deep as 11′ and not equipped with ladders or other exits, the workers were engaged in form work, and tying rebar that was not capped. Although, strictly speaking, 29 C.F.R. ¬ß 1926.701(b) speaks of guarding “protruding reinforcing steel . . . to eliminate the hazard of impalement,” the Commission upheld a “serious” violation, as employees could have sustained deep cuts or wounds had they tripped and fallen against the rebar.

Long experience in trenching does not necessarily make one a “competent person,” as OSHA requires to be on-site, and to perform at least daily inspections. In McLeod, a foreman, Jenkins, told the compliance officer that he was the “competent person” having dug trenches for 25 years. However, Jenkins, when asked about his knowledge of soil mechanics and whether he had done any field tests to classify the soil, admitted that he guessed he must not be the “competent person.” The definition of “competent person” in 29 C.F.R. ¬ß 1926.650 is as follows:

Competent person means one who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

The employer in McLeod Land Services failed also to establish its fallback position, that one Brenton, a utility superintendent who kept a logbook to record daily conditions, comments and jobsite conditions, was the “competent person.” However, as Brenton’s logbook excerpts did not show that he had kept the logbook in the capacity of a “competent person,” there was not even a suggestion that Brenton had ever actually inspected the trench in question, and the employer’s general superintendent (and the boss of both Brenton and Jenkins) had identified Jenkins, not Brenton, to the OSHA compliance officer as the “competent person,” this proffer was likewise rejected.

In P. Gioioso & Sons, Inc. v. OSHRC, the employer was laying water lines on a project in Massachusetts. OSHA compliance officers chanced upon an 18-foot deep trench at the site. What they saw was alarming:

[T]he trench’s walls were unsloped and unsupported, the two workmen standing in the trench were visible only from the shoulders up, and a ten-foot section of cast metal pipe was suspended aloft from the bucket of a piece of heavy construction equipment located at one end of the trench.

As an aside, employers cited for excavation violations sometimes try, usually without success, to assert a defense based on Fourth Amendment protections against warrantless searches. As illustrated by Secretary v. Arapahoe Utilities and Infrastructure Inc. (involving a trench dug on a public golf course) the employer has no reasonable expectation of privacy where its activities are conducted out of doors, and open to public view. Whatever the public can see, an OSHA inspector is entitled to look at without a warrant.

The employer in Gioioso filed a timely notice of contest, but the ALJ found that the violations had occurred, and imposed monetary penalties. In its PDR (Petition for Discretionary Review), the employer contested the ALJ’s finding of fact, whether the employees were exposed to trench-related hazards without an adequate protection system, and the ALJ’s rejection of its “unpreventable employee misconduct” defense.

On appeal to the U.S. Court of Appeals, the employer sought to raise three issues in addition to those raised in its PDR. Too late, the employer found it had committed a common procedural misstep. The doctrine requiring the exhaustion of administrative remedies bars consideration of unpreserved defenses. While providing for review by a court of appeals, Congress directed that “no objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” The employer’s argument that urging an objection before the ALJ was the functional and legal equivalent of urging it before the Commission was rejected. The court of appeals stated:

[A]n aggrieved party desiring to preserve an issue for judicial review must raise it before the ALJ, articulate it clearly in its PDR, and offer a modicum of developed argumentation in support of it.

Failing that, the court of appeals concluded, “we lack jurisdiction to hear those [unpreserved] issues.” Thus, all available issues must be raised both before the ALJ at the hearing, and in the PDR.

In Secretary of Labor v. Complete General Construction Co., the employer, cited for its failure to locate a spoil pile at least 2 feet away from the excavation, argued that language in the first sentence of 29 C.F.R. ¬ß 1926.651(j)(2), (viz. that “[e]mployees shall be protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations”) renders less than absolute the prescription, in the next following sentence, that “[p]rotection shall be provided by placing and keeping such materials or equipment at least two feet . . . from the edge of excavations” or by using retaining devices. The employer claimed its spoil pile, although within 2 feet of the excavation, was sloped and “very stable,” and thus posed no hazard.

In contrast, in Secretary of Labor v. Black Construction Corp., the employer had not provided trench shields to protect employees from loose rock or soil that could pose a hazard by falling or rolling from an excavation face. The Commission vacated this citation item, finding that the Secretary had not met her burden to show that shoring or sloping of the trench walls was necessary to avoid exposing employees in the trench to a substantial likelihood of serious injury or death. This was so “notwithstanding the fact that automobile and truck traffic traveled in close proximity to the trench wall.”

Black Construction Corp. is hard to reconcile with Secretary of Labor v. A. P. O’Horo Co., Inc. That case involved a fatal cave-in in a 10-foot deep trench dug parallel to a highway trafficked by vehicles “ranging from automobiles to tractor trailers.” 29 C.F.R. ¬ß 1926.652 requires “additional precautions by way of shoring and bracing” where “excavations are subjected to vibrations from railroad or highway traffic” or other sources. The trench in Black Construction Corp. was centered about 9 feet from the edge of the roadway. Following an older case, the Commission concluded that the proximity of the roadway established that the trench was subjected to vibrations, and there was no requirement to show “that the vibrations created an additional danger of collapse, for the standard already makes the judgment that vibrations have that effect.”

In Black Construction Corp., the Commission explained that:

Most [OSHA] standards include requirements or prohibitions which, by their terms, must be observed whenever specified conditions, practices or procedures are encountered. These standards are predicated on the existence of a hazard when their terms are not met. Therefore, the Secretary is not required to prove that noncompliance with these standards creates a hazard in order to establish a violation. Certain standards, however, contain requirements or prohibitions which, by their terms, need only be observed when employees are exposed to a hazard described generally in the standard.

The upshot of the apparent inconsistency between Black Construction Corp. and Complete General Construction Co. is that language such as “. . . that could pose a hazard” is not a reliable indicator that the Board will categorize a particular OSHA standard as one requiring proof of an actual hazard, as opposed to one in which danger will be presumed from a technical breach. The cases must be researched, to see whether the Commission has consigned the standard in question to one category or the other.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements. 

The risks to life and safety posed by unsafe excavation and trenching work at construction sites are under-appreciated. Foresight in this area is critical: when cave-ins occur, even in shallow trenches, workers can be trapped in an instant, and suffocated by the tremendous force of a load of dislodged earth.

Studies show that excavation safety compliance is often lax on small jobs, performed by smaller companies. Many injuries and deaths occur when workers go down into insufficiently-shored trenches or excavations, intending to work there for only a brief period. Plumbers and others are often afflicted with over-confidence, as they do so much below-ground work, usually without incident. Their bravado, however, should be discouraged, as cave-ins can happen swiftly. The weight of collapsed earth and, often, tight access to the site of a cave-in, make successful rescues the exception rather than the rule. Indeed, workers attempting to rescue colleagues in cave-ins are themselves often injured, and occasionally killed. A cubic yard of earth can weigh a ton and a half or more, and every time a trapped worker exhales, the weight of the load makes it harder to inhale the next breath.

OSHA initiated a special emphasis program for trenches and excavations in 1985, and revised its trench and excavation standards in 1989. A study published in the Journal of Occupational and Environmental Medicine showed that OSHA’s revised standard, and a targeted inspection program that began in 1990, sharply reduced fatality rates from cave-ins. Indeed, looking just at construction industry fatalities, deaths from other causes dropped about 28% in the 10-year period that ended in 1995, but deaths in cave-ins fell approximately 50%.

While the same study was hesitant to draw conclusions concerning the relationship between deaths in construction site cave-ins, and company size and union versus non-union status, it’s clear that OSHA inspections are more frequent at large companies and jobsites, and that non-union death rates from cave-ins are roughly double those for union workers. What this indicates is that OSHA regulations are highly effective in reducing risks associated with trenches and excavations, but only if workers are sufficiently trained, and employers enforce the standards. Workers and employers both are far too often casual about safety in trenches and excavations. Following three cave-in deaths in an eight-month period in the Pittsburgh area last year, one safety official (representing management) estimated that only 20% of the people working in trenches are properly protected. If they could meet and talk with a former plumber or other worker living with severe, lifelong and disabling injuries, sustained in the blink of an eye when soil collapsed on him exerting pressure of up to 100 pounds per square inch, perhaps they would be more careful.

In this month’s installment, Welby “the Engineer” will run through some of OSHA’s basic precepts concerning excavations, trenches and associated safety issues. In next month’s follow-up piece, Welby “the Construction Lawyer” will discuss some court decisions, in which trenching cave-ins and related hazards have been dealt with.

Although falls, electrocution, falling objects (or a backhoe) and bad air (which can poison workers, or result in fires) pose additional risks in trenches, the primary danger is from cave-ins. These occur when the soil forming the side of the excavation can no longer resist the forces being applied to it. This results from a reduction in the frictional and cohesive capacities of the soil to resist forces. Freezing and thawing, or the addition or removal of water from the pores of the soil, are frequent causes in reducing the soil’s ability to resist forces. Dynamic loads from vibrations caused by pile driving or other construction operations, or even nearby railroad or vehicular traffic, can have the same effect.

An “excavation” under OSHA means “any man-made cut, cavity, trench or depression in an earth surface, formed by earth removal.” A “trench” is a sub-species of excavation, generally, a narrow excavation below the surface of the ground, not more than 15′ wide at the bottom.

The most widely-used protective systems include support systems, sloping and benching systems, and shield systems, a/k/a trench boxes.

Before opening an excavation, the approximate locations of utility installations (sewer, telephone, fuel, electrical, water lines or other underground installations) are required to be determined. While beyond the scope of this article, these determinations present significant technical challenges and are often unreliable, generally as most detection technologies can’t locate lines that are neither metallic, nor installed with ferrous or other magnetic markers attached, to enable them to be found. Major utilities, of course, can usually provide reliable information, but surprise encounters with PVC or other difficult-to-detect underground installations are not uncommon.

Excavations must be inspected daily prior to the start of work, and as needed throughout the shift. Inspections must also be made after every rainstorm or other “hazard-increasing occurrence” if employee exposure can be reasonably anticipated. A “competent person,” defined generally as one capable of identifying existing and predictable hazards and unsanitary, hazardous and dangerous conditions, and having authority to take measures to eliminate them, is to perform such inspections.

OSHA requires employers to train workers about excavation hazards, and how to protect themselves. Video and other safety instruction materials, of varying quality, are available from a number of sources, but while the following is not a complete or sufficient “course of instruction,” a few of the most basic rules need to be repeated, and repeated often. “Before you work in a trench,” workers should be told, “get a ‚Äòcompetent person’ to approve it.” Equipment (such as ventilators and water pumps) should be checked. The trench should have all electricity, gas and water pipes shutoff, and booms should never be used near overhead power lines (unless the “competent person” has first ascertained that the power has been cut off, and the lines have been grounded).

If “bad air” is expected, a “competent person” must test the air to ensure that the air has between 19.5% to 23.5% oxygen. Gasoline, methane, or other substances that can burn or explode should be at less than 20% of the lower explosive or flammability limit. The air should also be checked for toxins like chlorine, carbon monoxide, sewer gases, and hydrogen sulfide. These toxins can kill, and it is the “competent person’s” job to ascertain if blowers can keep the air safe, if any such substances are present. If “bad air” is anticipated, there must be a rescue plan, and rescue equipment present on-site. Rescue teams must have special training.

OSHA classifies soils as stable rock, or type A, type B, or type C soil. Stable rock, and type A soils are the safest. Most soils are type B. Sand, and trenches with water, are type C soils. Water in a trench is a “red flag” of possible danger. Clay soils can be of type A, B, or C, depending on how much water is in the clay. Testing is imperative, because cave-ins occur with alarming frequency in clay soils, because they look safe.

Protective systems — usually, sloping, benching, shoring, or a trench box — must be in place whenever workers are down in a trench. If a trench is 4 feet deep or more, there must be ladders within 25 feet of all persons who will be working in the trench. The spoil pile must be kept a minimum of 2 feet from the edge of the trench. Rocks, soil or other materials must be prevented from falling into the trench. Barriers should be used, if needed.

If a trench caves in, “911” or other emergency services should be summoned at once. If co-workers can be assisted from outside the trench, fine, but no one should go down into a trench that is caving in, or that has bad air, even to rescue a fellow worker. Such rescue attempts usually fail, and the would-be rescuers can be injured or killed.

Every construction contractor, of course, is conscious of the costs of OSHA compliance, and aware that faster work increases profit margins. However, few things that occur on construction sites are more terrible than a workforce watching helplessly, as a colleague trapped by a trench cave-in suffocates and expires under tons of soil. In addition to the destruction of life and morale, the financial costs of trenching accidents can be huge. They include work stoppage to rescue the victim, time and labor to re-excavate the collapsed trench, workers’ compensation costs, increased insurance premiums, and paperwork and management time lost in connection with the investigation of the accident. OSHA fines for willful and serious violations of excavation standards , and the employer may be exposed to liability for wrongful death, personal injury, and conscious pain and suffering as well.

The combination of potential fines, loss of human life, lawsuits, increases in already high insurance costs, and poor public relations can put a thriving construction company, especially those smaller ones that are subject to increased pressures to cut corners with regard to safety, out of business.

In short, it’s a great idea to bite your lip and write that check for the trench-box rental. It’s well worth the investment. Most of what goes into OSHA compliance, generally, is in the nature of sound planning and organization, not large cash outlays. Properly organized, worker safety instruction and enforcement should not cost employers greatly in lost time and profit — and the downside in shortchanging these efforts can be damaging, even fatal, to your business.

Next month, we’ll discuss some of the cases in which cave-ins and excavation hazards have been addressed.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

We follow up last month’s “Scaffold Law Update” with a look at some OSHA cases involving fall-protection standards, as these are the leading cause, of construction industry citations.

Companies that have not reviewed their safety programs since OSHA overhauled its fall-protection standards in the late 1990s would do well to download OSHA Document 3146 (1998 revision), “Fall Protection in Construction,” which contains both a useful summary, and references for further study. In a nutshell, compatible fall protection measures must be provided wherever employees are exposed to a possible fall from a height of six feet or more. Principal methods include guardrail systems, safety net systems, personal fall arrest systems, positioning device systems (a body belt or body harness system), “controlled access zones,” and warning line systems.

The case law illustrates earnest efforts to enforce fall-protection standards, while avoiding interpretations of OSHA standards that fail to tell employers what compliance with the standards entails.

In Frank Lill & Son, Inc. v. Secretary of Labor, employees were seen working as high as 100 feet aloft without fall protection, or with only a horizontal wire rope, about 18 inches high, at the edge of the platform. Workers volunteered that there was no convenient place to tie off, and that even foremen and project managers frequently worked at great heights without doing so. OSHA cited Lill for a “willful” violation of 29 C.F.R. ¬ß 1925.501(b)(1), and proposed a $49,500 penalty for the “willful” violation.

The Administrative Law Judge downgraded Lill’s violation from “willful” to “serious,” based on proof that Lill had daily safety inspections and safety meetings, provided sufficient personal fall arrest systems for its employees, and disciplined employees who neglected to tie off while working at or close to the edge of platforms.

The Lill case came before the Court of Appeals when a Petition for Discretionary Review (“PDR”) to the OSH Review Commission (“Commission”) was not granted, making the ALJ’s order the final order of the Commission. Lill highlights a procedural pitfall, as the Court of Appeals refused to consider grounds challenging the finding of a violation. By statute, 29 U.S.C. ¬ß 660(a), absent “extraordinary circumstances” any grounds to challenge the ALJ’s findings that are not in the PDR cannot be considered by the courts of appeals. Thus, employers and their counsel should be sure to include all meritorious arguments before finalizing a PDR.

Lill’s defenses to the violation were also dismissed by the Court. Notably, the Court rejected Lill’s argument that the wire perimeter rope qualified as a “guardrail system.” This argument was found wanting, as the inspector testified that he had found the wire cable to be inadequate “because an adequate guardrail system has a toprail at 42 inches and a midrail at 21 inches.”

Lill’s failed also in its defense of “unpreventable employee misconduct.” To make out this defense, an employer must show that (1) it had a work rule to prevent the reckless behavior and/or unsafe condition; (2) it adequately communicated the rule to employees; (3) the employer took steps to discover incidents of noncompliance; and (4) the employer effectively enforced the rule.

In Lill, “there was abundant evidence that employees, including the site manager, did not tie-off while on the catwalks,” signs posted that directed employees to wear safety harnesses failed to indicate when the employees were required to tie off and, while some disciplinary efforts were shown, the employer “presented no proof that it endeavored to enforce its tie-off rule to employees who were not right at the edge.” These factors, plus statements by four employees that the tie-off rule was frequently violated, negated the defense.

In an earlier article, we discussed S. A. Storer and Sons Co. v. Secretary of Labor, which illustrated a noteworthy exception to the rule that elevated areas must be equipped with fall protection devices, and a critical legal principle — namely, that the “substantial deference” accorded the Secretary will not sustain an interpretation of a regulation that is clearly erroneous.

A principal issue in S.A. Storer was whether, where an employee is engaged in overhand bricklaying on a supported scaffold, fall protection must be provided on the side next to the wall being laid. “Overhand” bricklaying, of course, requires the mason to lean over the wall to work mortar into the interstices between the blocks, and “includes mason tending and electrical installation incorporated into the brick wall . . .”

Under 25 C.F.R. § 1926.451(g)(1)(vi), an employee performing overhand bricklaying from a scaffold must be protected from falling from all open sides and ends of the scaffold except at the side next to the wall being laid. This exception, Storer claimed, excused the lack of fall protection at a window opening (which was the basis of the citation).

The Secretary contended that the “overhand bricklaying” exception could not be applied, because Storer’s employees were not actually doing such work at the location of the window opening. Elaborating her position, the Secretary depicted the exception as a “limited,” “practical” accommodation. The exception should be recognized, the Secretary said, where “the presence of a guardrail between the mason and the wall being laid would interfere with or prevent the process of setting and mortaring the masonry.” However, the Secretary maintained, “if there is an opening . . . where wall is not being laid, then no deviation” can be justified from the “mandate” requiring fall protection. Storer, the Secretary asserted, was arguing for an “unlimited exemption,” that would “swallow” the fall-protection requirement “without practical or policy justification.”

Ruling for Storer on this issue, the Court of Appeals upbraided the Secretary for distorting Storer’s position — Storer was seeking “to do only what the words of the exception allow it to do” — and remarked that “a regulation cannot be construed to mean what an agency intended but did not adequately express.” If the Secretary is dissatisfied with the regulation, she should look to amend it, but not “by ascribing a meaning to words they simply do not have.”

The Court of Appeals found that the Secretary’s interpretation failed to reflect “clear, rational decision-making that gives regulated members of the public adequate notice of their obligations,” and vacated so much of the Commission’s order that regarded the window opening area of the wall being laid.

In Secretary of Labor v. Commercial Painting, Inc., the employer was cited for using a rough terrain forklift to support a work platform 21 feet above the ground. “Front-end loaders and similar pieces of equipment” are prohibited by the OSHA standard from being used to support scaffold platforms, unless they have been specifically designed for such use.

The forklift was found to be a “similar piece of equipment” within the standard, and the Commission affirmed a “serious” violation with a $1,250.00 penalty.

Citing ¬ß 17(j) of the Act, 19 U.S.C. ¬ß 666(j), the Commission in Commercial Painting noted that when assessing penalties, the Commission must give due consideration to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the history of previous violations.

“Generally,” the Commission observed, “the gravity of the violation is the primary consideration in assessing penalties.” “Gravity” is measured by “the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.”

The Commission in Commercial Painting found that the two-employee crew was exposed to a 21-foot fall while the platform was elevated. If the platform and forklift tipped, the Commission found, “the likely result would be death or serious physical injury.”

Despite the modest sanction imposed, Commercial Painting still deserves to be read as an admonition that the violation of fall protection standards will not be taken lightly, and may subject the employer to findings of “serious” violations, and greater penalties for “serious” and “willful” violations.

The frequency, and in many cases the severity, of injuries from construction site falls should make fall protection a primary element of a cost-effective strategy for OSHA compliance, and jobsite risk management.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.