Construction employers can often focus their safety efforts where hazards are most visible: equipment operation, electrical exposure, fall protection, and lockout procedures. While those efforts remain essential, a recent decision from the Occupational Safety and Health Review Commission (OSHRC) serves as a reminder that compliance does not stop at physical conditions on the shop floor. Administrative and reporting obligations under OSHA can carry real consequences, even when an employer has otherwise invested in safety.

In Secretary of Labor v. Pleasant Mount Welding, Inc., the Administrative Law Judge (ALJ) vacated a cited electrical violation but affirmed a penalty for failing to timely submit an OSHA injury and illness summary electronically. The decision highlights two important lessons for construction employers: first, not every alleged “extension cord violation” will withstand scrutiny; and second, OSHA reporting requirements are to be strictly adhered.

OSHA’s inspection in this matter did not arise from an accident or anonymous call regarding unsafe practices (i.e. unprogrammed inspections). The inspection originated through OSHA’s national emphasis program (an NEP) to address the hazards of amputations in specific industries. OSHA’s NEPs are temporary programs focused on specific and particular workplace hazards and high-hazard industries, which sets forth that OSHA’s officers shall initiate randomized inspections under an NEP if a company falls under a specific classification indicating that the company falls under a designated high-risk industry (which includes construction and manufacturing) and has 10 or fewer employees. During these inspections, an OSHA officer may also identify any plain view violations, and the scope can be expanded if the company has history of employee injury or illness as noted on their OSHA 300 or 301 forms.

Here, during the inspection of Pleasant Mount Welding (PMWI)’s facility in Carbondale, PA, OSHA identified flexible cords powering a milling machine and a rotating bending machine and issued a serious citation under 29 C.F.R. § 1910.305(g)(1)(iv)(A), alleging that extension cords were being used as a substitute for fixed wiring.

At the hearing, the evidence showed that the machines were mobile, frequently repositioned to meet production needs, and powered through cords connected to existing wall outlets. Importantly, fixed wiring existed throughout the facility and was actively in use. The cords did not run through walls, ceilings, or floors, nor were they concealed or attached to building surfaces.

The ALJ focused on the language of the standard, which prohibits flexible cords from being used “as a substitute for the fixed wiring of a structure.” The ALJ rejected OSHA’s attempt to equate a machine with a “structure” and emphasized that the cords were being used to power equipment, not to replace building wiring. The citation was therefore vacated.

For construction employers, the takeaway is not that extension cords are risk-free, but that citations must be grounded in the actual text of the standard. Cord usage should still be evaluated for trip hazards, damage, overloading, and improper routing. However, where equipment is portable and fixed wiring is present and functioning, employers should not assume that any long- term cord use automatically violates OSHA’s rules. Documentation of equipment mobility and electrical layouts can also be critical in defending these claims.

However, the ALJ maintained the record-keeping citation. PMWI employed more than 20 employees and fell within a covered NAICS classification. As such, it was required to electronically submit its OSHA Form 300A Summary of Work-Related Injuries and Illnesses by March 2 of the following year.

Although PMWI maintained OSHA logs on-site and had only one recordable injury for the year, the summary was never submitted electronically. PMWI’s management conceded as much, testifying that they were unaware of the electronic submission requirement and believed the obligation ended with maintaining the forms internally. As the maxim goes, “ignorance of the law is no excuse” and so the ALJ affirmed this citation and upheld the monetary penalty. The decision makes clear that OSHA reporting violations are established simply by the failure to comply regardless of intent, injury frequency, or overall safety performance. PMWI presented evidence of safety committees, third-party inspections, and insurer-provided training. While those efforts are commendable, they did not offset the reporting violation or warrant a reduction of penalty especially in the absence of a written, employer-maintained safety program.

Construction employers should view this as a reminder that administrative compliance is part of safety compliance. Training programs, toolbox talks, and hazard assessments do not excuse missed deadlines or incomplete submissions. The policy behind the forms is that OSHA utilizes this data to identify trends, target inspections, and evaluate industry risks. When an employer fails to submit required information, all employees are deemed exposed because OSHA is deprived of accurate insight into working conditions.

This decision reinforces several practical and administrative points.

• Review OSHA recordkeeping obligations annually, including electronic submission deadlines and post requirements.
• Confirm whether your NAICS classification triggers electronic reporting requirements.
• Assign clear responsibility for OSHA submissions and require confirmation of completion.
• Maintain written safety programs, even when third parties provide training or audits.

Construction safety is often measured by what happens in the field, but OSHA enforcement extends well beyond visible hazards and field conditions. Although this decision shows that employers can successfully challenge overbroad interpretations of safety standards, they cannot overlook their reporting and administrative requirements.

About the author: Costas Cyprus, Esq. practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at ccyprus@wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.

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

Electrical safety remains one of the most unforgiving challenges in the construction and utility sectors. The decision by the Occupational Safety and Health Review Commission in the matter of Secretary of Labor v. Armstrong Utilities Inc. is a reminder of what can happen when routine telecommunications work intersects with energized electrical infrastructure. Although the Commission ultimately vacated the citation, the facts easily resonate across the construction industry: the margin for error around high-voltage lines is incredibly thin and the strength of a safety program is tested in real-time.

The case involved a four-man Armstrong  crew installing new fiber-optic cable along a mile-long stretch of rural roadway in Ohio. The work was standard in many respects. One employee operated the bucket truck, another handled the cable spool, a foreman managed traffic and the aerial lineman worked in the bucket attaching fiber to a pre-installed steel strand. The terrain was wooded, the poles were mixed between I-poles and T-poles, and the crew had to use a weighted ball and mule tape to get the line through trees. This was all part of their normal process. Yet even familiar tasks become dangerous when performed under energized lines. A 7.8-kilovolt primary line ran above the telecommunications space, and the lineman ultimately contacted it, sustaining electrical shocks and burns. 

The cited safety standard that was at issue was §1910.268(b)(7), which requires that an employee maintain a 24-inch minimum approach distance (MAD) “unless” one of the provision’s enumerated exceptions has been implemented: the employee is wearing insulated gloves or otherwise guarded; the lines are insulated or grounded; or  the lines are deenergized. The main question for the Commission was whether Armstrong could have known about the violative condition with reasonable diligence. To prove a violation of the cited safety standard,  the Secretary had to show the standard applied, the minimum approach distance was breached, employees were exposed and the employer knew or could have known about the hazard.

On the first two elements, there was no real dispute. Telecommunications field work of this nature falls under §1910.268, and not the construction electrical standard (for which OSHA had initially cited Armstrong). Moreover, because the minimum approach distance for voltages between 2kV and 15kV is 24 inches, actual contact is definitive proof of noncompliance. The employee was exposed to a deadly hazard the moment he touched the conductor.

The dispute centered on employer knowledge. The terrain created a changing clearance between the energized line and the steel strand. Measurements taken later showed 10 feet, 5 inches of separation at one pole, 5 feet at the next, and 4 feet, 9 inches at mid-span. Although the Administrative Law Judge reasoned that this significant change in clearance should have been detected and communicated, the Commission disagreed, noting that the stipulated distances still exceeded the 24-inch requirement and that the foreman’s pre-work inspection reasonably indicated adequate clearance. 

The foreman drove the run, reviewed blueprints with the crew, and discussed the T-pole section and the trees. He emphasized caution in the area where the terrain changed. The crew was experienced, and the injured lineman had over two decades of field work, including extensive training on energized-line hazards and minimum approach distances. The Commission emphasized that specific instructions must match the training and experience of the employee, and nothing in the record suggested the lineman lacked the ability to judge his clearance or had any history of unsafe conduct. The Commission found that the foreman had reasonably relied on both the crew’s experience and the inspection performed that morning. Because there was no evidence the company knew or should have known the lineman would breach the approach distance, the citation was vacated. 

For the construction industry, the lessons go beyond the legal outcome.  

First, approach-distance discipline must be absolute. Whether the governing standard is a construction electrical rule or, as in this case, the telecommunications standard, the hazard is the same. A minimum approach distance is a line that cannot be crossed, and every crew member must treat it as non-negotiable. Even when clearances exceed the minimum, the slightest misjudgment, footing issue, or unexpected boom movement can erase the margin instantly.

Second, terrain changes matter. Variations in elevation between poles can alter the vertical relationship between energized lines and the work area. Hills, dips, and tree canopies can distort sightlines. The Armstrong case involved a shift of more than five feet between poles, which the judge found “easily observable,” though the Commission viewed it differently. Regardless, construction employers benefit from incorporating terrain-specific observations into pre-task planning. A simple reminder to workers that clearances may vary, even along the same run can prevent a moment of complacency.

Third, pre-work inspections must be deliberate. Here, the foreman rode the run, visually evaluated the clearances, reviewed blueprints, and issued instructions. The Commission found this adequate, but the decision still underscores how important documentation, communication, and follow-through are when a crew is working under energized lines. Even if a hazard seems obvious, articulating it reinforces awareness.

Finally, a strong safety program is not a guarantee against field-level decisions. Armstrong’s safety manual contained clear rules matching the regulation. Employees received classroom and hands-on training, recurring bucket-truck certification, and monthly safety meetings. Even with that foundation, injuries can occur, especially when work involves close proximity to overhead power lines. This makes on-site real-time supervision, hazard recognition, and ongoing communication critical.  Moreover, consistent reinforcement of basic electrical safety principles remains essential, regardless of tenure and experience. 

Workers near energized lines should take this decision as an opportunity to reinforce electrical-hazard awareness, examine how field conditions influence approach distances, and ensure every employee from the most junior apprentice to the most seasoned lineman treats energized infrastructure with the caution it deserves.

About the author: Costas Cyprus, Esq. is a partner at the firm of Welby, Brady & Greenblatt, LLP, in White Plains, NY.   He practices construction law and commercial litigation and can be reached at 914-428-2100 and at ccyprus@wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.

The recent decision in Secretary of Labor v. Sunbelt Rentals Scaffold Services, LLC offers important insight for construction firms navigating the fine line between assumed employee experience and OSHA’s expectations for hazard-specific safety training. The matter arose from a June 6, 2023 incident in which a yard worker at a temporary construction facility in Port Arthur, Texas was hospitalized after sustaining a severe hand injury.

Sunbelt Rentals, a large equipment rental company with specialized divisions, including scaffolding and materials staging operations,  is a well-known player in the construction industry.  It had assigned two employees – a yard helper with five weeks of service and a yard associate with eight months of experience – to build the floor of a temporary “paint hooch” using a battery powered circular saw.  The yard helper had prior experience using the saw as a tree trimmer while the yard associate had experience with the tool having previously worked in roofing. The work took place at a staging yard supporting an LNG project.  While the floor was being constructed from plywood and braces, the injured employee attempted a solo cut without his partner holding the material steady. The saw jumped and his hand was drawn into the blade, resulting in significant injury, which included six severed tendons and a fractured bone.

Following a mandatory employee hospitalization report, OSHA conducted an inspection and issued a “Serious” citation. The Secretary alleged that Sunbelt had failed to provide adequate instructions and training regarding the safe use and set-up of the battery-operated circular saw, in violation of 29 CFR § 1926.21(b)(2). This standard requires that employers instruct each employee in the recognition and avoidance of unsafe conditions in their work environment.

During this proceeding and at trial, Sunbelt produced documentation that its employees had received both general orientation and site-specific safety briefings.  Its safety program included training through the Houston Area Safety Council (HASC), internal job safety analyses (JSAs), weekly toolbox talks and visual reminders such as posters at each branch. Significantly, Sunbelt also had a task-specific JSA created in 2017 covering circular saw hazards, including instructions on avoiding kickback, among the risks present in this incident.

Both employees had signed off on JSAs from June 3 and June 6, which included references to saw hazards. The foreman testified that he had instructed the crew to use both hands, brace materials with a partner, and keep hands clear of the blade. The yard associate corroborated these instructions and recalled similar guidance from his earlier general training.

Sunbelt’s safety director further explained that company policy required saws to be used only on flat, stable surfaces and it emphasized the prohibition against holding materials in the air during cuts. These safety principles were included in the 2017 saw-specific JSA, made available online and posted prominently at Sunbelt’s yards. Sunbelt also maintained a progressive disciplinary policy and terminated employees for safety violations.  In fact, it had a documented culture of safety observation and reinforcement.

The Administrative Law Judge  found that the Secretary failed to prove non-compliance with the cited standard. First, the ALJ held that the cited standard clearly applied, as the circular saw posed recognized hazards. However, the ALJ determined that Sunbelt had met the standard of a reasonably prudent employer by providing adequate instruction on the hazard through a combination of general training modules (that included power tool use), daily JSAs identifying saw risks, direct verbal instructions from the supervisor, a task-specific 2017 circular saw JSA, and it posted reminders in training rooms and yards.

The ALJ also rejected OSHA’s reliance on unverified interview notes that conflicted with employee trial testimony. These notes were unsigned and not reviewed for accuracy and the ALJ afforded them limited evidentiary weight. Where they conflicted with credible, corroborated testimony from the yard associate and foreman, the latter was favored.

Consequently, the Citation was vacated. Yet, this decision still underscores the need for companies to proactively document and reinforce safety instructions through both formal training and daily on-site communications, particularly when assigning hazardous tools to workers in temporary or transient yard conditions, or rotating assignments. Some key takeaways are as follows:

Training Must Be Hazard-Specific: A general orientation alone is not enough. Employers must demonstrate that training addresses the specific tools and tasks employees will use.

Documentation Matters: Signed JSAs, training logs, disciplinary records, and job-specific instructions (like Sunbelt’s 2017 circular saw JSA) are crucial when facing scrutiny.

Don’t Rely on Experience Alone: It is not enough that employees say they’ve used a tool before. Employers must verify and document that proper instructions have been provided.

Verbal Instructions Still Count, if Credibly Delivered and Corroborated: The ALJ accepted verbal safety briefings as adequate when supported by written materials and consistent testimony.

The Sunbelt decision may offer relief to employers who fear that even well-designed safety programs can be second-guessed after an accident. However, it should not be read as a license for laxity. Rather, it highlights the importance of layering safety communications, documenting hazard-specific training and reinforcing expectations through site supervision.

Just because a tool is portable doesn’t mean the risks are too.  Employers must ensure that safety instructions follow the worker from the shop floor to every jobsite. Doing so satisfies regulatory expectations,  and it can prevent injuries before they occur.

About the Author: Costas Cyprus, Esq. is  a partner at the law firm of Welby, Brady & Greenblatt, LLP, in White Plains, NY. He practices construction law and commercial litigation. He can be reached at 914-428-2100 and at ccyprus@wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.

Construction operations that have a dynamic worksite consisting of the constant movement of heavy equipment with blinds spots where workers on-foot can very easily be subject to struck-by hazards if and when these workers are placed in the “zone of danger.”  To minimize such risks and injuries, employers must maintain proper safety protocols such as an internal traffic control plan (ITCP).

The decision in Secretary of Labor v. Hall Trucking, Inc., arising from the tragic death of worker shows that even when a company has “a lot of policies written down,”  its safety program can be found “incomplete at best, and merely an unrealized, unimplemented paper program at worst.” 

Hall Trucking is a North Dakota-based heavy haul company specializing in oil and gas rig moves. A typical rig move involves coordinating dozens of trucks and pieces of equipment, such as flatbeds, gin pole trucks, skid steers and bobcats, alongside laborers called “swampers” working on foot.  On November 2, 2022, a preventable tragedy occurred at a drilling site in Epping, ND.  A young swamper, barely two months into his job, was fatally struck by a reversing flatbed truck during a routine rig move.  Following an extensive investigation, OSHA issued a citation to Hall Trucking for violation of the general duty clause, setting forth that the employer did not furnish a place of employment that was free from recognized hazards, which were caused or likely to cause death or serious harm in that employees were exposed to struck by hazards.

OSHA’s citation indicated that an abatement method it could have developed was an ITCP to address the struck-by hazards; and, the plan should have included an employee training program for supervisors, drivers and ground crew members.

The incident was captured on dashcam video and although the truck had a functional back-up camera, sun glare prevented the driver from properly using it.  Moreover, the trucks were equipped with reverse alarms,  but  because the workers became accustomed to the sound, they would ignore it.  While Hall Trucking did conduct a daily safety meeting and provided some on-the-job mentoring, the company’s policies were vague, inconsistently communicated and not enforced.  For example, the reversing truck had a spotter assigned, but he walked with his back to the truck and failed to maintain visual contact. The driver was also unable to use the backup camera due to sun glare. Tragically, the deceased employee had been in the blind spot and directly in the truck’s path when he was struck. 

It was determined that the closest Hall Trucking had to safety rules addressing struck-by hazards  consisting of a Swamper Training series of slides and the Daily Safety Meeting form.  The training slides (128 slides in total) were just one of the 13 training modules that the deceased worker completed upon hiring. (However, these were completed in only 18 minutes, an obvious red flag).  The company admitted no one verified whether he actually read or understood the content.

The daily safety meetings could also discuss “buffer zones” to define the distance a hazard from a moving vehicle, but no specific distance was defined as Hall Trucking’s supervisor explained that they could not in light of the different types of equipment on-site.

The Administrative Law Judge (ALJ) affirmed the Citation against Hall Trucking.  He  found, Hall Trucking’s safety program to be insufficient.  Even if it did have some rules pertaining to the movement of trucks, mobile equipment and ground workers, these rules  were found to be incomplete, disparate and incohesive so that the safety rules were improperly communicated to employees to ensure their comprehension.  Furthermore, there was no evidence of audit, inspections or enforcement for safety compliance on-site to ensure compliance and accountability.

OSHA’s expert testified about the need for an ITCP that would include defined walkways, buffer zones, spotter training, and worker-free backing areas that would have significantly reduced the risk of this fatality. The court rejected Hall Trucking’s argument that a formal ITCP was infeasible, noting that even small changes in layout and communication could have made a life-saving difference.

 An ITCP could be as complex or informal as needed depending on the nature of the work and on-site hazards.  Also, an ITCP is not merely a set of “static diagrams and one-size fits-all measures”,  it is “an entire process that includes training, site-specific evaluation, auditing/observation, and enforcement of policy and best practices.”

This Decision shows how companies must recognize and plan for struck-by hazards.  If a company has workers on foot near moving trucks or equipment, they must actively manage that risk with the assistance of an ITCP .  A well designed ITCP should have a clearly defined traffic flow, dedicated pedestrian walkways or “no-go” zones, trained spotters with defined roles and procedures for when visibility is compromised, such as with glare. Companies must also effectively train their workers and require confirmations, tests and refresher training.  Moreover, even the best policies are useless if no one knows or follows them.  Supervisors must be trained to audit, document and correct unsafe behavior, including taking proper disciplinary action.

About the author: Costas Cyprus, Esq. practices construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at ccyprus@wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.

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

Workplace safety failures related to materials storage continue to be a significant source of serious injuries and citations, on construction and manufacturing sites. The recent decision in Secretary of Labor v. Masis Staffing Solutions, LLC offers a sobering reminder that even momentary or “temporary” positioning of heavy construction materials like roof trusses must meet OSHA’s stability requirements to protect workers from struck-by hazards.

Masis Staffing Solutions (“Masis”), a staffing agency based in Massachusetts, supplied temporary workers to Ridgway Roof Truss Company (“Ridgway”)’s facility in Gainesville, Florida (the “Worksite”). Ridgway manufactures prefabricated roof trusses, which consist of large, heavy components often bundled in groups for staging and shipping. Workers would stack as many as 32 trusses into packages or bundles that were nailed and banded together and then loaded onto trucks. Some bundles can weigh thousands of pounds and stretch up to 60 feet long.

The Worksite was managed by Ridgway’s Director of Operations, Nevada Gellerman and Masi’s on-site production manager, Alejandro Alvardo Jose. Mr. Gellerman dealt with hiring, employee safety, training and discipline at the worksite. Mr. Jose had initially worked for Ridgway as a truss builder about ten years prior, was subsequently promoted to foreman and hired by Masis to continue working at the Worksite and continued as a foreman and had been recently promoted to production manager. In his roles, Mr. Jose, supervised production and ensured compliance of safety guidelines with the authority to discipline workers for non-compliance. Both Messrs. Gellerman and Jose shared safety responsibilities, including conducting safety walk-throughs and communicating with employees related to potential hazards such as falling truss bundles. A truss package standing vertically was pyramid shaped with top pointing upwards, and employees had been told that they could stand the packages vertically if stable. However, both Messrs. Gellerman and Jose had observed many “close calls” with the packages falling over, so they instituted an informal policy to only permit vertical storage against buildings or the Worksite’s fence. This informal policy was communicated over many meetings and yellow lines had even been painted in the middle of the yard where the packages were to be stored horizontally.

The underlying accident occurred on June 10, 2023, at the Worksite as a Masis worker was assisting with loading a large truss bundle onto a trailer. A nearby bundle, weighing approximately 2,000 pounds – and placed vertically without support or leaning against a building or fencing – fell and struck the worker, seriously injuring him. The accident was captured on video, showing multiple employees moving about the yard as the vertically stored truss towered overhead for nearly ten minutes before the Accident. The video showed how workers ignored the painted lines and continued to store bundles vertically in that area.

Following an OSHA investigation, Masis was cited under a safety regulation, which requires materials stored in tiers (like bundles or packages) to be “stacked, blocked, interlocked, and limited in height so that they are stable and secure against sliding or collapse.” Masis contested and challenged the Citation, claiming the applicable safety standard was not applicable as they argued that truss bundle was not “stored” but was merely a “load in process” and temporarily placed upright by a forklift to make space.

The Administrative Law Judge (the “ALJ”) disagreed finding that even short-term placement of bundle constitutes “storage” under OSHA’s standards if the material remains stationary and creates a hazard and available video evidence clearly showed that the standard was violated.

Critically, the ALJ found that Masis bore supervisory responsibility through its onsite production manager, Mr. Jose, who had previously been a foreman. He not only directed day-to-day operations and enforced safety rules, but also had warned workers to avoid vertical truss storage due to prior “near-miss” incidents. Although informal efforts had been made to prevent vertical storage in unsafe areas these efforts were inconsistently enforced, and no formal safety policy prohibited the practice outright.

By way of Mr. Jose, Masis had the knowledge and the authority to prevent the hazard. Despite seeing workers repeatedly stand trusses upright in unsafe ways, the ALJ found that Masis failed to enforce corrective actions before the injury occurred even if Mr. Jose had not witnessed the “Accident” or the circumstances leading to it on that day since he was aware that employees were improperly placing the packages vertically in the months prior to the Accident.

Masis also tried to argue that the injury resulted from employee misconduct outside its control- specifically that the forklift operator had violated their unwritten rule prohibiting placement of trusses vertically in the center of the Worksite’s yard. The ALJ rejected this defense, emphasizing how Masis had not clearly established a formal work-rule to prevent this struck-by violation and had failed to adequately communicate or enforce the rule. The alleged rule was unwritten, inconsistently applied, and only formally clarified after the incident.

Therefore, the Judge affirmed this Citation, constituting a serious violation, and imposed a $10,938 penalty.

Employers must ensure proper supervision and enforceable safety procedures for their employees are in place even if in instances they do not directly control the site. Moreover, the temporary placement of materials does not excuse failure to follow relevant materials handling standards. Bundled materials like trusses must be stored with full regard to their stability, even if they will only be upright “for a few minutes.”

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

A commonsense principle of scaffold safety is to protect not only those working on the elevated platforms, but also those working beneath them. A recent decision before the Occupational Safety and Health Review Commission in Secretary of Labor v. Precision Refractory Services, LLC reinforces this obligation after a serious incident left a worker injured on a Florida construction site. The unfortunate injury serves as a reminder that even seemingly routine work, like ground-level cleanup, can become hazardous in the absence of proper protections.

Precision Refractory Services, LLC performs fireproofing and refractory work that consists of laying insulated brick or fireproofing inside furnaces, boilers and other structures, employing approximately 100 individuals. PRS had contracted with the general contractor, Koch, to perform refractory work inside the furnace of a property in Cantonment, FL. PRS’s work here consisted of laying fireproof brick inside the furnace. Koch had also contracted with Coastal Industries Services, Inc. to erect and maintain the scaffold which PRS utilized to perform its work. The furnaces were large cylindrical concrete structures for which PRS workers needed scaffolds. Specifically, PRS employees used the scaffold to lay fireproof brick inside the furnace, working in shifts around the clock. The scaffolds consisted of a system of eight decks high, with six feet separating each deck. On November 12, 2022, a PRS worker was assigned to clean up debris beneath a scaffold at a furnace. While several workers were stationed on upper decks stacking bricks, the injured employee was stationed on the ground level directly beneath the scaffold and exposed to falling debris. During this shift, a metal scaffold component, described as a three-inch pipe, rolled off the upper level of the scaffold and struck the employee’s arm, resulting in a fractured wrist and hospitalization.

Following the mandatory injury reporting by PRS, OSHA dispatched a Compliance Safety and Health Officer to investigate. The inspection led to two citations under the OSHA’s scaffold safety standards. The first citation alleged that PRS allowed unauthorized alterations to the scaffold without the supervision of a competent person (who is able to capable of recognizing predictable hazards and who had authority to take prompt remedial measures).

The Secretary of Labor alleged that PRS employees had altered the scaffolds to place bricks and removed toeboards that Costal had installed. The second citation alleged PRS failed to protect employees from falling objects by not barring access to the area below the scaffold.

After a hearing, the judge vacated the first citation due to insufficient evidence that PRS employees had altered the scaffold. The Secretary’s reliance on hearsay statements from other contractors—without live testimony or corroborating documentation—did not satisfy the evidentiary burden. The court noted that the hearsay lacked sufficient guarantees of trustworthiness and that PRS employees likely lacked the tools or authority to alter the scaffold while “Coastal management had motive to shift the blame.”

The second citation alleged a violation of the scaffold safety standard that requires employers to prevent access to areas below scaffolds when there is a danger of objects falling such as tools or materials. The federal safety rules provide several alternative means of compliance, including toeboards, netting, canopies, or barricades.

In this case, no such protective measures were implemented despite PRS supervisors being fully aware that workers were stationed above. Objects that included bricks, tools and other “destructive objects” could fall, causing serious injury. Practically speaking, PRS employees worked with small hand tools such as trowels and saws that could easily fall.

Significantly, PRS’s own Job Safety Analyses identified falling object hazards, and its supervisors acknowledged the risk during pre-shift briefings. Yet the only mitigation efforts involved verbal warnings but not physical safeguards. The judge emphasized that actual injury, such as the one sustained here, is not required to prove exposure. The lack of any form of physical protection and the employee’s placement directly beneath active work areas constituted a clear violation.

Although PRS conceded non-compliance, it attempted to shift responsibility by arguing it had no control over the scaffold’s configuration that was erected and maintained by Coastal. A toeobard would have prevented the accident and since they could not have installed one, they did not violate the standard. The Judge firmly rejected this argument, noting that as the “exposing employer,” PRS was nonetheless obligated to protect its own employees. Even if PRS could not modify the scaffold, it retained the authority and responsibility to prohibit employees from entering dangerous areas. Where feasible, employers must take reasonable alternative measures to protect workers, such as restricting access to hazardous zones.

The Judge affirmed this second citation, constituting a serious violation, and imposed a $7,000 penalty.

This case illustrates the importance of proactive and layered safety measures in elevated work environments:

• Barricade or restrict access to areas below scaffolds whenever there is a risk of falling objects.
• Use toeboards, debris nets, or canopies as appropriate, especially in multi-level work zones.
• Train supervisors and workers to recognize and respond to falling object hazards but not just with warnings, but with physical protections.
• Ensure documentation of daily hazard analyses and confirm that mitigations are actually implemented.
• Scaffold safety is not limited to those working on the structure but it also extends to anyone who may be working in their proximity.

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

The perils of cave-in or trench collapses are well-documented in this Safety Watch series given the large number of workers who have died from such instances.  Construction companies must ensure that all proper safety precautions are taken during excavation activities, including the use of proper shoring or use of trench boxes. Companies must also ensure that equipment and spoil piles are placed at a safe distance from the edges of any excavated trenches – and at least two feet away- to prevent collapse/cave-ins of trench walls and avoid materials and equipment from falling in and striking workers.  

The recent decision in Secretary of Labor of Montroy Development LLC affirms the need to keep trench edges clear at worksites.  This matter did not involve an accident or anonymous call regarding unsafe practices.  Rather, it originated through OSHA’s national emphasis program (NEP) to address the hazards of excavations that can lead to “high fatality” situations.  OSHA’s NEPs are temporary programs focused on specific and particular workplace hazards and high-hazard industries, in this instance pertaining to excavation and trenching activities. Under the applicable NEP, OSHA’s Compliance Safety and Health Officers (CSHOs) shall initiate inspections whenever they observe an open trench or an open excavation, regardless of whether a violation is readily observed.  

On May 8, 2023, a CSHO was driving by a worksite in Camillus, NY and noticed an excavation site where a person appeared to be standing on the edge of the excavation speaking with someone in the excavation.  The CSHO parked her vehicle, and began her investigation by taking video recordings, photographs and measurements at the excavation.   She also interviewed individuals at the site, including the owner of Montroy Development, LLC – who was the individual initially observed standing at the edge of the excavation – along with a Montroy worker who had been in the excavation and another individual observed in the excavation.  The CSHO observed a lack of adequate protective systems (no shoring or trench box). The excavated materials did not consist of stable rock, and Mr. Montroy admitted not knowing the soil type.  In fact, the soil included aggregate, supporting that it was of a loose type or classification.  The excavation site also had various spoil piles consisting of the excavated materials.  One of these spoil piles was right at the excavation’s upper edge, between the path of egress from the excavation and the CAT excavator, and one could not distinguish the separation from the spoil pile and the excavation’s beginning. The excavator was at the edge of the spoil pile and parked at a slight angle to the excavations’ rim, with a portion of its tread appearing over the upper part of the excavation.  Given the observed dangers, the CSHO did not enter the excavation but rather assessed the excavation’s depth by placing a stud board across the excavation and using a measuring tape suspended from a rod to determine the distance between the ledge and the bottom of the stud board, measuring a depth of at least five feet, which was also confirmed by her other observations.  From the CSHO’s inspection, OSHA issued various citations against Montroy, for improper cave-in protections and for failing to have adequate protection from materials or equipment for workers in excavations.  Under the applicable federal safety regulation, equipment and materials, including excavated materials that can “pose a hazard for falling or rolling into an excavation…” must be placed “at least two feet (.61 m) from the edge of excavations, or by use of retaining devices…or by a combination for both if necessary”. The Citation alleged that Montroy violated this safety standard by not protecting employees from excavated materials and the excavator’s tread, protruding over the edge, also constituted a struck-by hazard for workers as it could fall or roll into the excavation. 

Montroy contested the citations.  At the hearing, the Administrative Law Judge found that photographic and video evidence confirmed that materials and equipment were within two feet of the excavation even if the CSHO acknowledged that she did not physically take measurements of the distance (as it was unsafe to do so at that time). The excavator and spoil pile were along the upper edge of the excavation and that there was no “discernible distance” between the excavator’s tread and the top of the excavation, while the end of spoil pile aligned with the excavation’s edge.  Montroy’s attempts to rebut and refute this evidence were found unavailing.  Although Montroy’s employee claimed that while the CSHO was investigating, he had measured the distance between the excavator and the excavator’s edge, showing a distance of approximately five feet, he then corrected his prior statement to allege that it was 28 inches.  However, even this revision lacked any corroborating photographic evidence, while the CSHO’s testimony and her photographs showed there was no distinction between the excavation edge and excavator tread and her testimony was found to be more credible.  Similarly, the ALJ found both the CSHO’s testimony and her photographic evidence more credible, showing no distinction between the spoil pile and the excavation edge.  Moreover, the violative condition was “readily apparent” to the individual that had the authority to abate the hazards.  Consequently, the ALJ affirmed the citation against Montroy.   The key takeaways from this Decision are as follows: 

• Proper cave-in protections (such as trench boxes or shoring) must be in place at excavation sites to prevent fatalities and serious injuries.
• Spoil piles and heavy equipment must be kept at least two feet away from trench edges, pursuant to federal safety regulations, to reduce the risk of collapse or struck-by hazards.
• Observations by OSHA Compliance Officers can prompt inspections without complaints or incidents, as occurred in this case with a drive-by inspection.
• The case emphasizes the importance of visual clarity of trench boundaries, consistent documentation, and proactive hazard abatement at job sites.

This case reinforces that even absent an accident, OSHA can and will act on visible noncompliance, and employers must maintain clear, consistent safety practices with supporting documentation.

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 powered industrial trucks is a significant source of serious and fatal injuries to workers. Violations for the unsafe operation of powered industrial trucks (PITs), such as forklifts and lift trucks, are among the most cited by OSHA following work-site inspections. In fact, an average of 100 workers are killed each year and 20,000 workers are seriously injured by fork truck-related incidents. Half of the forklift fatalities occur in construction and manufacturing, according to the U.S. Department of Labor.

Federal safety requirements, which are enforced by OSHA, mandate an operator’s training and certification in a set of topics such as equipment operation, load handling, proper maintenance and recognition of applicable safety hazards, etc. The training “shall consist of a combination of formal instruction (e.g. lecture, discussion, interactive computer learning, video tape, written material), practical training (demonstrations performed by the trainer and practical exercises performed by the trainee), and evaluation of the operators in the workplace.”

PIT operators must be evaluated on their performance at least every three years with refresher trainings, or, more frequently if an operator is observed to have operated the PIT in an unsafe manner, was involved in an accident or a near-miss incident. PITs must not be used to lift loads beyond the equipment’s capacity, and operators much ensure the load’s stability to prevent circumstances that could compromise balance, such as in instances of improper stacking or overloading. Other workplace-related topics include pedestrian traffic in areas where the vehicle will be operated and the use of ramps or other sloped surfaces that could affect the vehicle’s stability.

Employers must certify that each operator has received the necessary training and evaluation with records noting the names of the operator, the dates of training, the dates of evaluation and the identity of the individual performing the training or evaluation. Operators must also perform daily inspections to identify any issues that could affect safety, and if so, they are not to be placed in service.

Moreover, special precautions must be taken when operating a PIT near open flames, sparks or electric arcs in battery charging areas, a prominent issue in light of recent high-profile fires that have led to deaths and serious injuries caused from the charging of lithium-ion batteries. Although, currently, there are no specific OSHA standards for lithium-ion batteries, OSHA has general industry standards, including for PITs that could apply, such as requirements that facilities shall be provided “for flushing and neutralizing spilled electrolyte, for fire protection and for protecting the charging apparatus from damage…and for adequate ventilation…”

Construction companies must follow these requirements for the use and maintenance of PITs to provide a safe work environment and reduce the risks of accidents and injuries at the worksite. The decision in Secretary of Labor v. Gander and White Shipping, Inc. (“Gander”) exemplifies the need for proper training when operating PITs. The matter was initiated by an anonymous complaint to OSHA on January 21, 2021 where it was alleged that an employee working out of Gander’s facility in Miami, Florida, was working on an elevated scissor lift and checking a box on a shelf when he fell out of the lift and fell approximately nine feet to ground, fracturing his left elbow. OSHA’s Compliance Officer Anthony Campos was assigned the matter and conducted an investigation. Officer Campos learned that Gander’s employee had fallen on January 18, 2021, and that employees were operating the forklift in a warehouse without the requisite training and certification for handling PITs. Consequently, he issued multiple citations to Gander asserting among items that it violated the applicable safety standards by not ensuring “that each powered industrial truck operator is competent to operate a powered industrial truck safely, as demonstrated by the successful completion of the training and evaluation…”

Gander’s Operation’s Manager, Eugene Layton, conceded that they utilized PITs such as scissor lifts and a battery powered forklifts at the worksite and in fact admitted their employees were not trained at the time of the accident. Mr. Layton testified in subsequent proceedings that Gander in fact trained their employees in the use of the PITs after the accident and after OSHA’s investigation. Moreover, Gander’s own foreman, Joel Hernandez admitted to the Compliance Officer Campos that neither he nor his subordinate who operated the forklifts had ever been trained in their operations, while these trucks were frequently used. The admission by Hernandez, a foreman with supervisory capacity, that a subordinate employee operated a PIT without having requisite training was sufficient to impute liability on Gander under a “serious” classification, which applies when an employer knows about and fails to prevent a “substantial probability” that either death or serious injury could result from a work-place condition. A “serious” classification mandates higher monetary penalties as well. The Administrative Law Judge affirmed OSHA’s citation against Gander.

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

Among the most-cited violations by OSHA following work-site inspections in construction are those related to fall protection failures. Fall protection must be provided to all employees working at or near edges with a drop of six feet or more either by a guardrail system, safety net system or other fall arrest system. The recent decision in Secretary of Labor v. Trinity Solar LLC reemphasizes this point arising from a work-site fatality-although this case dealt possibly with the transitionary activity of ascending/descending a portable ladder for which OSHA standards do not require a fall arrest system. Other safety standards still apply but were not cited.

Background

Trinity Solar LLC (“Trinity”) began as a small HVAC company that transitioned to a residential-only solar panel installation company operating in multiple states, including New York and New Jersey. The company employs more than 3,000 workers. In October 2022, Trinity had contracted to install panels on a two-story family home in South Orange, NJ. The multi-day project involved installing panels on two separate roofs of the residence, the upper roof, which was 22 feet in height, and the lower roof which was 12 feet in height. Trinity had two teams working at this site, one team worked on the upper roof and the other team worked on the lower roof. Angel Camacho was the team lead/foreman for the “main crew”. Four workers worked on the upper roof, two on either side of the ridge line, while two workers worked on the lower roof. They would access each roof using two designated ladders, the “large” ladder to get to the upper roof and another ladder to reach the lower roof. Trinity’s workers wore personal fall arrest systems (PFAS) while working. These consisted of a body harness, a lanyard/lifeline, clips/connectors and, in some instances a “shock pack”.

A lanyard would connect from the anchorage point on the roof to the body harness worn by the worker. The lanyard connected to the body harness by a clip. Two types of lanyards were utilized here, a Y-lanyard used as work-positioning device which attached to the front of the body harness at the waist, and a shock absorbing lanyard, which attached to the back of the body harness. The shock pack was used as a fall arrest device because it would absorb the impact if a worker fell within six feet. Critical to the proper function of the PFAS is ensuring that the lanyard is connected to the anchor in the roof. Here, on the first day of the project, Mr. Camacho and another worker installed the anchors on the roof. Pursuant to company policy, the anchors would not be moved or removed until final project completion. Trinity utilized a the “first man up technique,” which in effect means that the first person on the roof is in charge of putting down the anchors and connecting all the lines for use. Mr. Camacho would connect the workers’ personal rope lines, and they would remain on the roof all day. Mr. Camacho would take the lines down at the end of the day and return them to the workers. The rope lines were not left in place overnight although the anchors remained in place for the duration of the project. At issue here were the clips attached to the lifelines on the upper roof and lower roof as depicted in certain marked photographs. These clips would attach to the worker’s harness, with one being the clip connecting the work positioning lanyard and the other connecting to the shock pack.

On October 4, 2022, work began at 8 am, and the workers worked on the two roofs without incident. The decedent worker had been working on the upper roof. The team broke for lunch and at some point, after lunch, the decedent fell. No one saw him on any roof surface before the fall nor did they know where he was just prior to the fall. He was wearing his harness, but it was not connected to an anchored rope line. Tragically, he succumbed to his injuries.

OSHA was called to the scene and an officer arrived 40 minutes after the incident. The OSHA officer took pictures at the site from street-level, only, and did not take any measurements. Following the inspection and subsequent interviews, OSHA cited Trinity for failing to utilize any means of fall protection during the process of entry and exit from the roof.

Although the Secretary of Labor was alleging that the decedent fell “while stepping on the roof,” during the hearing and subsequent evidentiary findings, the Judge determined that it was unclear where the decedent was at the time he fell, whether he fell while climbing the ladder or from the rooftop itself. Moreover, Trinity’s employees consistently testified that the rope lines were “reachable” by the worker as they climbed the ladder to comply with Trinity’s safety policy.

Decision

Based on the credible evidence submitted, the Judge found that it was more likely that an anchored rope line was reachable by the Trinity worker from the ladder when they attempted to enter onto the roof. The Secretary’s assertions that the rope lines were too far away for the worker to connect without leaving the ladder leading him to access the upper roof without being tied-off, failed, and the citation was dismissed.

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

Various materials are used in construction activities including those deemed hazardous to human health. Therefore, companies must ensure that they have an adequate and updated written hazard communication program in place consisting of multiple components. Safety Data Sheets (SDS) must be present on-site detailing information about each chemical, along with safety procedures and emergency procedures for potential and improper exposure. Employers must maintain an up-to-date inventory of hazardous chemicals at the site and ensure the proper labeling of all containers of hazardous materials with the relevant hazard warnings. Also, regular employee training must be provided to understand these labels and the SDS sheets and educate employees on the safe use of these hazardous chemicals.

The decision in Secretary of Labor v. Finley, LLC, however, indicates that proper hazard communications should be provided for those materials that are reasonably anticipated to be used by the workers. This matter arose from an anonymous complaint called into to OSHA regarding unsafe trenches at a worksite in Denver, Colorado in March 2020. Finley, LLC (Finley) was an earthmoving and excavating contractor based in Bailey Colorado with about five full-time employees, including its owner Jason Finley, a supervisor, and some laborers. Katerra Construction, the general contractor for the construction of a residential complex in Denver Colorado had retained Finley for certain excavation work at the site. Finley, which had been working at the site for about nine weeks at the time of the OSHA inspection, had excavated multiple trenches, including one for plumbing for lines that would ultimately supply the apartment complex. The trench at issue was approximately 160 feet long, 18 feet across, and varied in depth from 6 feet to 10 feet.

Alerted by the anonymous complaint, OSHA sent a Compliance Safety and Health Officer to the site, and after an investigation, issued multiple citations to Finley. These included a failure to develop or implement a hazard communication program in that its employees were potentially exposed to hazardous chemicals, inclusive of certain pipe adhesives, and that employees were not provided with effective information and training on hazardous chemicals in the their work area at the time of their initial assignment or whenever a new hazard that employees had not previously training about was introduced at the job site. Also, Finley did not have a copy of its hazard communication program on-site as required at the time of inspection, nor did it provide its employees with either chemical or site-specific training as required in the applicable safety standards.

During OSHA’s inspection, water was observed in the trench, extending across about 90% of its length. Although there was conflicting evidence as to the source of the water-that it was either coming from groundwater at the bottom and sides of the excavation or from piping that was being tested as it was being connected by other Katerra employees- it was undisputed that the presence of the water changed the soil classification in the trench and it increased the risk of collapse as well as presented a possible slip-and-fall hazard. The presence of water in the trench should have required a re-evaluation of the type of sloping that was being implemented at the site and the need to take additional precautions. Based on the submitted evidence, the citations for improper trenching and excavation were upheld against Finley by the Administrative Law Judge (ALJ).

However, the ALJ found that the Secretary of Labor failed to prove their case as against Finley for the citations arising from a failure to develop or implement a hazard communication program and to provide its employees with effective information and training on these hazardous chemicals. Although Finley only had a generic hazard communication program, which was only presented at the time of trial-and which did not actually address Finley’s specific business of excavation and earthmoving, Finley denied that their employees assisted plumbers connect piping at the bottom of the trench. At best, Finley employees might have been present in the trench while Katerra’s plumbers were connecting and sealing pipe with certain pipe adhesives, but Finley did not perform any plumbing work. Further, Mr. Finley testified that his company only installed drainage pipes, which did not require the use of any adhesives. The ALJ found that there was no reason to provide independent training on hazards not reasonably anticipated to be used by Finley’s employees. Finley employees had received training and information as provided by Katerra at the site that the ALJ found appropriate for the hazards presented by working adjacent to other workers who were required to use such chemicals. During the trial, the Secretary of Labor attempted to amend this citation to include gasoline for Finley’s vehicles and battery acid present in those vehicles as potential exposures for which Finley had failed to maintain respective SDS sheets. The ALJ found these attempts improper as gasoline did not present “a greater hazard to a trench digger than a stay-at-home day filling up for a soccer practice, or to battery acid, for which there was absolutely no evidence of exposure.”

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