Most construction industry employers are at least slightly familiar with the concept that “unforeseeable employee misconduct” will, under certain conditions, constitute an effective defense, which will lead to an OSHA citation being vacated.

It’s what is called an “affirmative defense,” which means that, if and when the Secretary of Labor makes out all of the elements of the violation, the Administrative Law Judge will then — provided that the defense was pleaded — consider whether the employer has made out the elements of the defense.  Ordinarily, in other words, the ALJ won’t reach the “unforeseeable employee misconduct defense,” unless first persuaded that the Secretary has met the burden to show (1) that the cited standard applies; (2) the employer’s failure to comply; (3) employee access to the cited condition; and (4) the employer’s actual or constructive knowledge of the violative condition.  “Constructive knowledge” means that, even in the absence of actual knowledge, the employer will be deemed to have known of the condition if, with the exercise of reasonable diligence, it ought to have discovered it.

The employer has the burden of proving, by a preponderance of the evidence, each and every necessary element of the defense.  Usually, shortly after the filing of a Notice of Contest, the Administrative Law Judge assigned to the case will schedule a conference call to discuss pretrial matters, and will raise with the respondent-employer (or its counsel) the issue of affirmative defenses.  Be aware that the unforeseeable employee misconduct defense can be waived, unless pleaded in the respondent’s answer (or brought up during the scheduling conference call, where the case is being litigated using Simplified Proceedings).

This defense should not be misunderstood as one that will routinely permit management to avert blame for an OSHA violation, by pinning it on a low-level employee.  The nature and scope of the defense is well-illustrated in the recent case of Secretary v. Quandel Construction Group, Inc., in which it was sustained.

In Quandel, the employer construction company was working to convert half of a commercial building for occupancy by a new tenant, and to replace the storefront.  An OSHA compliance officer, sitting in his car outside a fast-food restaurant several hundred feet away, observed two Quandel employees in an aerial lift, and thought that it looked like one of them was not tied off.  Using a camera equipped with a zoom lens, the CO photographed the men, enlarged his photos onscreen, and was able to confirm that such was, indeed the case.

After watching the unconnected worker make three trips up and down in the lift without tying off, the CO initiated an inspection.  It was learned that the workers were working on the building façade, at an elevation of 38’ to 40’, installing metal studs and braces that were being cut to size on the ground below.  Workers in the lift would determine the measurements, and relay them to an employee on the ground, who would then cut the appropriate size bracing.  The lift workers would then descend to the ground to retrieve them, and additional bracing would be cut, while the pieces were taken up in the lift and installed.

The inspection led to a single-item citation, alleging a violation by the one employee of the standard requiring that “a body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.”  The employer contested the “Serious” citation item, and asserted the “unforeseeable employee misconduct” defense.

Of the four elements necessary to the Secretary’s case, two (the applicability of the standard, and Quandel’s failure to comply) were conceded.  At the trial, employee access was readily established, leaving only the issue of whether the unconnected employee, Havens, was — as the CO had assumed — a “supervisor,” knowledge of whose misconduct would be attributed to his employer.

Havens’ job title was “carpenter,” and he was not, formally, a foreman.  He denied having authority to discipline anyone.  Havens was, however, the lead carpenter of the five or six working on the exterior of the project, and it was he who generally ran the weekly toolbox talks for the other carpenters.  He also had, admittedly, authority for his own helper in the basket lift, and the employee cutting bracing on the ground.

Based on OSHA precedent that an employee who is delegated authority over one or more other employees, even  temporarily, is to be deemed a “supervisor,” for purposes of imputing his knowledge of a violation to his employer, the ALJ determined that Havens was, in fact, a supervisor.

However, the ALJ vacated the citation, for two, closely-related reasons.  One was the judge found that imputation (and, thus, the element of employer knowledge) had been negated by Quandel’s establishment of work rules concerning the standard, the effective communication of those rules, and their enforcement by means of supervision and discipline.  The other, incorporating the foregoing elements, added to them the elements that the employer had shown it took reasonable measures to prevent the violation, and that Havens’ failure to tie off was “idiosyncratic and unforeseeable” conduct.

Quandel, the ALJ found, had an explicit work rule requiring employees  on any raised platform 6’ or higher to wear a full-body harness, with a lanyard attached to an anchor point.  That, however (as the ALJ observed) was not sufficient:  the employer needs to show, also, that the rule “be communicated in such a manner that its mandatory nature is made explicit and its scope clearly understood.” 

Communication, in turn, will be found to be sufficient (and was so found in Quandel) where the “employees are well-trained, experienced and know the work rules.”  Havens testified that he had been given site-specific training on the use of the lifts, as well as the OSHA 30-hour course.  He received safety training (including fall protection) from Quandel, including a 90-minute video, weekly toolbox talks, safety manuals on jobs, and weekly meetings at the shop.  He testified further that he knew it was Quandel’s policy for employees in the lift to be tied off.  That testimony was corroborated by that of Quandel’s project superintendent — whose testimony also established, as the ALJ found, a sufficient program of enforcement, consisting essentially of a “three-strike rule” (oral warning, followed by a written warning, followed by removal from the job).

Finally, from unrebutted testimony that Haven’s conduct on the day in question was his sole infraction during six months of employment, the ALJ agreed with Quandel that his failure to tie off on that day was “idiosyncratic” and “unforeseeable, justifying vacatur of the citation.

Thus, while the existence of a work rule as part of a half-hearted safety program will not establish the defense, “unforeseeable employee misconduct” is an issue you should discuss with your attorney, whenever your company is cited for an alleged OSHA violation.

Cranes in construction must always be used with full regard for the gravity of the potential consequences of a collapse.  The equipment must be inspected, with careful attention to both OSHA standards, and the manufacturer’s recommendations.  Defects noted must be reported up the chain of command, and bad equipment removed from service, until repaired or replaced.  Everyone you employ must be trained that these rules are not to be honored only in the breach.

The unwisdom of laxity in inspecting and maintaining cranes, and failing to take bad equipment out of service, are underscored in a recent ALJ decision, Secretary v. Mountain States Contractors, LLC.  In that case, the employer was found to have willfully violated OSHA, by continuing to use, for more than a month, a crane on which the boom cable was known to need replacement.

The employer in Mountain States was building two bridges over the Cumberland River.  Beginning on February 19, 2013, Hutchins and Shehane, operators using the Terex crane in question, noticed, and repeatedly recorded in daily inspection forms, that the crane’s auxiliary cable needed to be replaced.

An annual inspection on April 3, 2013 noted that the auxiliary cable was “bad.” The inspector saw, but failed to record in his report, two broken wires on the boom cable.

On April 11^th, Shehane wrote in the daily inspection form, “Need new cable on Aux. drum.  Got new cable coming for boom hoist.”  On April 15^th, Shehane again mentioned that the boom cable needed to be replaced.

Operator Hutchins told OSHA inspectors — although he later tried to fudge this statement at trial — that, as early as April 18^th, he had observed multiple broken wires on the boom cable, which met the criteria for being taken out of service.

A new auxiliary cable was installed on April 26^th. Two days later, Hutchins recorded that the “boom cable needs replacing,” and checked the box indicating that the boom needed to be repaired “before further operation.”

A different operator, Bundy, took over the crane after April 28^th, and, although he would later testify that he had observed cracks in “half a dozen” lays along the boom cable, he made no notations in the daily inspection log until May 20-21.  On those days, Bundy, too, indicated that the boom cable needed to be replaced.

On May 21^st, while Bundy was operating the crane on one of the bridges, the boom cable snapped, whipped back, and broke out the windows of the crane cab.  The boom fell onto the highway although, fortunately, no one was injured.

In the ensuing OSHA inspection, Bundy denied knowledge as to why the boom cable had broken.  Hutchins, however, told the Compliance Officer he had seen broken wires all along the boom cable, severe enough to require taking the crane out of service, weeks before the accident, and had advised Shehane (who was both an operator and a foreman) accordingly.

There came on for trial a single citation item, alleging a “Willful” violation of the standard that mandated that both the boom cable and the auxiliary cable be taken out of service, and replaced immediately, upon the detection of what is defined as a “Category II” deficiency.

The boom cable consisted of wires, strands, and a core.  The “strands” are groups of individual wires that are wrapped around the core.  A “lay” is the distance it takes for a strand to make a complete revolution around the core.  To prove the “Category II” deficiency cited, the Secretary needed to show that (1) there were three or more broken wires in one strand, as it made one revolution around the cable; or (2) that there were six or more broken wires in any one strand within a single lay.

Sorting through considerable obfuscation and dubious testimony by company witnesses, the ALJ, in a detailed decision, affirmed the citation, and imposed a $60,000 penalty.

In the ALJ’s discussion of the evidence, I noted especially that the inspector who performed the annual inspection admitted having observed two broken wires in two different lays, but failed to record that information, and to “boom down” the crane, to unspool the entire length of the cable for inspection.  The ALJ expressed consternation that the inspector falsely certified his inspection (which, per regulations, was required to be “complete and thorough, covering the entire length of the wire ropes”) and failed to document the broken wires he had seen.  The judge was dismayed, also, that the auxiliary cable (which the inspector noted as “bad”) was not replaced for nine working days following the inspection.

The ALJ deplored that “it appears that the annual inspection is viewed as little more than a perfunctory process attendant to owning and operating a crane.”  I hope my readers will get the point that, if your crane one day collapses, having been so carelessly inspected and maintained, you should not count on having the good fortune enjoyed by the employer in Mountain States in avoiding fatalities, and more extensive property damage.

The operators in Mountain States all testified that they knew themselves to have authority to take the crane out of service.  Yet, none of them did so, and the equivocation in their testimony suggests that they knowingly endangered themselves and others, in order to spare their employer the cost to replace the cables, or delays pending the delivery of new cables.

At the trial and in their post-trial brief, the employer and counsel seized on differing terms (“fractured” and “cracked” as well as “broken”) used by the operators and the inspector, to assay a due process argument that the term “broken” was being extended beyond its meaning in the regulations. 

Although allowing that the employer’s argument had some plausibility, the ALJ concluded that the use of “broken” to embrace “cracked” and “fractured” comported with the ordinary meaning of “broken,” and that the fine distinctions that the respondent was endeavoring to establish were of doubtful importance “when the cracked, broken, or fractured wire has several tons of weight applied to it.”

As to the element of employer knowledge, the ALJ found that each of the three operators (who were, by definition, “competent persons”) had actual knowledge of the defect, and the project superintendent was chargeable with constructive knowledge, having failed to exercise due diligence by reviewing and acting on the daily inspection forms, notwithstanding that he had been told that a new one had been ordered.

As for the classification of the violation, the ALJ agreed that the employer’s conduct was “Willful,” based on its insouciance regarding both the auxiliary and the boom cable, and from the testimony establishing that the replacement boom cable had been ordered, and was onsite at the time of the accident.  The failure to stop work for the brief period necessary to perform the installation, while having heightened awareness of the regulation, was found to constitute disregard for the requirements of the Act.

The ALJ also cited, as proof of willfulness, the operators’ failure to take the crane out of service, and that supervision of the operators was entrusted to a superintendent who, admittedly, had never undergone any training in the use of cranes, was not a “competent person” with respect to cranes, and had never operated one.  Plus, as the Court noted, it required no special training to read the daily inspection forms, which clearly stated that the boom cable needed to be replaced, and to further inquire into the basis of such statements.

A recent Administrative Law Judge (ALJ) decision illustrates a number of principles that employers ought to know.

In Secretary v. Tim Graboski Roofing, Inc., a six-man crew was finishing a reroofing job on a two-story residence. One of the six, the son of the crew chief, was mixing cement on the ground.  From the roof, the crew chief called down to his son to reposition a metal extension ladder, which the crew had been using to access the roof.  No one saw the accident, but the crew members heard the crew chief’s son cry out, and the sound of the ladder falling.  Looking over the side of the roof, the crew viewed the crew chief’s son lying on the ground, the fallen ladder beside him.  Attempts to resuscitate the son failed, and he was pronounced dead at the hospital.

The occurrence was investigated by the power company and local police, as well as by OSHA.  The power company determined that power lines carrying 7.6 kW of current were running parallel to the edge of the roof upon which the extension ladder had been resting.  The OSHA Compliance Officer concluded that the extension ladder either came into contact with the energized line closest to the roof, or that electricity arced from the energized line to the metal ladder, resulting in the electrocution of the crew chief’s son.

OSHA issued citations containing four items (three “Serious” and one “Willful”) based on its investigation.  The first item was that employees were permitted to work too close to electric power circuits, and were not protected against electric shock by de-energizing and grounding the circuits, or by insulation or other means.

The second item was that the employer had failed to ascertain, before work began, whether any part of an energized electric power circuit was located where the performance of the work could bring any person, tool or machine into physical or electrical contact with it.

Third, the employer was cited for using ladders with conductive siderails, where the employee or the ladder could contact exposed, energized electrical equipment.

Fourth, the employer received a “Willful” citation, because on two days, as the job was winding down, and anchor points for the men’s lanyards were being tiled over, employees on a steep-slope roof worked at a height of 19 feet without fall protection.

The employer contested all of the citation items and proposed penalties, and asserted the affirmative defense of “unpreventable employee misconduct.  Following a trial before an ALJ, all four items were affirmed, and penalties totaling $84,000.00 were imposed.

A primary avenue of defense was that the Secretary failed to demonstrate the applicability to the worksite of the items relating to the use of the ladders.  This, the employer argued, was because it was not conclusively proved that the employee died as a result of the ladder’s physical or electrical contact with the power lines.  Because no one witnessed the accident, the employer maintained, testimony regarding how the decedent supposedly repositioned the ladder, causing it to come into contact with the power lines, was based on “mere speculation.”  The employer also argued that it was a failure of proof that the Secretary failed to put into evidence the autopsy report attributing the employee’s death to electrocution.  In addition, the ladder had been moved to the street before the OSHA compliance officer arrived at the scene, and the CO found no marks on the ladder indicating that it had come into contact with an energized power line.

This defense was summarily rejected by the ALJ.  One principle you should know is that, where there has been a fatality or an injury, the cause of the accident is not necessarily determinative, or even relevant to, whether a standard was violated.

In other words, in the Graboski Roofing case, the Secretary had no need to prove that the decedent was electrocuted because the ladder he was moving made contact with the power lines.  All that the Secretary had to show was that the employer had permitted employees to work in such proximity to energized power lines that contact with the lines was possible.

The ALJ found that Graboski had constructive knowledge of the hazard, as the power lines, although partly obscured by trees, would have been “immediately apparent,” had it occurred to the supervisor or crew chief to “simply walk around the structure before work began to look for nearby power lines.”

A second principle to keep in mind, therefore, is that, under OSHA,  an employer’s responsibilities include identifying and safeguarding against the primary, obvious hazards peculiar to its trade.  As the ALJ in Graboski Roofing observed, for a roofing company, reasonable diligence would include checking for power lines in proximity to the structure being roofed.

In affirming the item alleging the use of the ladder with conductive siderails, the ALJ noted that (1) the conductive character of the ladder was not in dispute; (2) the ladder was resting on the edge of the roof, about 5’ from the nearest energized line; (3) employees using the ladder to access the roof necessarily approached within a like distance of the power line; (4) the power lines were visible; and (5) as the crew chief had used the ladder at that location, and directed his son (the decedent) to move it, the employer’s knowledge of the hazard was undeniable.

Another principle illustrated by this case is that it is wishful thinking to suppose that the “unpreventable employee misconduct” defense can be made out, simply by proof that the employer had a safety program, which included a rule against the cited conduct.  This defense requires affirmative proof that the employer (1) had a work rule to prevent the violation; (2) adequately communicated the rule to its employees; (3) took reasonable steps to discover violations; and (4) effectively enforced the rule, generally by penalties increasing in severity upon repetition of the forbidden conduct.

The employer in Graboski Roofing had no rule specifically banning employees from using ladders with conductive siderails when working near energized electrical equipment.  Even the more general rules it claimed to have on the subject of keeping ladders away from power lines were unknown to its employees.  The defense was, therefore, easily rebuffed.

The fourth and fifth “takeaway” principles from Graboski Roofing are (4) that complying with OSHA most of the time will not do; (5) you should strive to avoid costly “Willful” violations.  Graboski’s roofers wore harnesses, and were usually tied off.  However, as the tiling work neared completion, the anchor points for the lanyards were covered over, one by one.  Typically, at the end of the job (and this was actually embodied in Graboski’s work rules) the concluding tasks were to be performed without fall protection.  The employer told OSHA that it was impracticable to enforce fall protection, because its workers preferred to work without it and “were apt to quit.”

The ALJ found that, if that were the reason why workers were exempted from tying off in the last phases of roofing jobs, it demonstrated the employer’s intentional, knowing, and voluntary disregard for the requirements of the OSH Act.  If the exemption resulted from an oversight or mistake, the ALJ found, that amounted to plain indifference to employee safety.  The employer was found to have committed a “Willful” violation in either case, and the Secretary’s proposed $70,000.00 penalty was affirmed.

If you own or manage a construction business, your company’s success depends upon its employees.  Safeguarding your employees’ health and safety in what is, unalterably, a dangerous industry is not only the right thing to do, not just “good business,” but indispensable to your company’s prosperity.  Since OSHA violations can impair your ability to get public work — and, increasingly, private work — compliance with OSHA is likely to be essential to your company’s survival.

Among the reasons why construction is inherently dangerous is that there are multiple employers on most worksites, and the circumstances, and dangers, on the site are highly fluid, constantly evolving as the project progresses.  Although having well-trained, highly safety-conscious supervisors is key to minimizing incidents OSHA violations, on most projects the rank-and-file are not constantly beneath a foreman’s watchful eyes.  Assuming, further, that your company isn’t one in which the owners and executives spend a lot of time onsite wearing hard hats, if you want to deter your workers from cutting corners and taking risks, they need to know that management really and truly values the life and limb of its workforce more than maximizing production to the very last drop.

There’s no substitute for “Leadership from the Top” on employee safety, and one thing you can do to underscore your commitment to safety is to sponsor a “Safety Week,” or to take part in events such as the upcoming “Stand-Down for Fall Safety,” from May 4-15, 2015.

The “Stand-Down,” now in its fourth year, was started by OSHA, in partnership with the National Institute for Occupational Safety and Health, NIOSH’s National Occupational Research Agenda, and the Center for Construction Research and Training.  In 2015, joining as sponsors are the American Society for Safety Engineers, the National Safety Council, the National Construction Safety Executives, the United States Air Force, a number of state-administered “Little OSHAs” and OSHA Training Institute Education Centers.

The “Stand-Down” focuses on fall protection, because falls are the #1 cause of construction fatalities, resulting in nearly 300 deaths (and thousands of serious injuries) per year.  During the two-week period from May 4-15, more than a million workers (OSHA is hoping for as many as three million), employed by tens of thousands of construction employers, will pause during their workday for tool box talks, demonstrations and training in the use of safety harnesses, guard rails, and other means to protect them from falls.  Labor organizations, universities, and community and religious groups have joined in the effort to promote and to organize participation in the “Stand-Down.”  In 2014, not only construction companies of every size and stripe, but many general industry employers, the U.S. military, various government agencies, unions, employers’ trade associations, worker advocacy organizations, institutes, and safety equipment manufacturers reported to OSHA their participation in the “Stand-Down.”

A parallel effort now underway is a nationwide “Safety Week” from May 3-9, 2015.  This initiative is sponsored by CISI (the Construction and Safety Initiative) and the IIF (Incident & Injury-Free) Forum.  CISI is a group of 12 large contracting firms, that holds two-day meetings twice a year exclusively devoted to safety.  Every two years, CISI brings together a larger group of approximately 30 major contractors for a “Safety Summit,” with the same purpose.

The IIF Forum is made up of the CEOs of a number of leading construction and engineering firms, and meets bi-annually to discuss ways to transform the safety performance of the industry.

Participation in the “Stand-Down” or “Safety Week” programs is entirely voluntary, and if the May dates are not convenient, you can schedule these or similar events at any time of the year.

Details concerning “How to Run a Safety Week” can be found at the website safetyweek2015.com.  The following is based on just some of the suggestions made.

  First, to show a top-down commitment to safety, management personnel should make safety-specific visits to each jobsite during the week.  Management can take part in toolbox talks or safety committee meetings, complete a jobsite safety audit/inspection, and have safety-specific discussions with foremen and other crew members. 

In engaging with employees, management should actively solicit feedback, asking questions such as:

• What are we doing well, as a company, in terms of safety?
• What needs to be done better?  How would you suggest that we accomplish each item?
•  Do you feel safe on the jobsite?  If not, what specifically are the hazards not sufficiently addressed?
• What does Safety Week mean to you, and what suggestions do you have, that might make it more meaningful and effective?

The employer should make project-specific and personal commitment safety pledges.  These, it is suggested, should be based upon an evaluation of the answers to the following questions:

• How engaged are management personnel in company safety programs?
• Can management increase its engagement levels with the project teams?
• Can management make a difference to our workers’ safety by engaging more?
• Does the company empower senior management to make a difference in workplace safety?
• How, in concrete terms, can individual managers help improve safety performance?

The project safety team should evaluate the current project, focusing on items such as safety culture, training, communications (Best Practices, incident reviews, etc.) evaluations of subcontractor performance, and how “Best in Class” status might be achieved.  Craft personnel should be engaged to join in this effort.

Hold events during Safety Week, which can include (among other things) inviting OSHA, representatives of the union Local, and emergency response teams (Fire Department, EMTs, or other) onsite; inviting vendors, to showcase new tools and safety equipment, and training sessions on topics such as fall protection, ladder safety, trench safety, and other items particular to your trade.

Other matters that would profitably be reviewed during Safety Week include fire safety requirements; first aid and emergency response protocols specific to the jobsite; site housekeeping, cord/tool inspections, rigging inspections and storage, assured grounding inspections, PPE inspections, and fire safety inspections; and disciplinary policy for OSHA and other safety rule infractions.

Construction safety is much more than avoiding OSHA citations.  As Terracon President David R. Gaboury put it, safety must be based on an “uncompromising commitment to our employees going home safely to their families each and every day.”  Achieving that goal requires sustained effort, and observances such as “Safety Week” and the fall safety “Stand-Down” can be valuable parts of that effort.

The Occupational Safety and Health Administration recently issued a study sure to occasion much controversy.  Entitled “Adding Inequality to Injury:  The Costs of Failing to Protect Workers on the Job,” this report sounds an alarm that, despite the OSH Act being in place for more than 44 years, and it having long been the law and national policy that employers must provide workplaces free of serious hazards, each year more than 4500 workers die on the job, and at least 3 million (and perhaps many more) are seriously injured.

The National Safety Council estimated the cost of fatal and non-fatal work injuries at $198 billion for 2012.  That figure can be compared with the Rand Corporation’s estimate of the annual cost of dementia, including Alzheimer’s, at between $159 billion and $215 billion (2010), and the American Diabetes Association’s 2012 estimate for the annual cost of diabetes, $245 billion.

Persistent levels of workplace mayhem generate enormous costs (chiefly, medical expenses and lost income) for the affected workers.  No less troubling, according to the report, is that only about 21% of the costs are defrayed by employers, chiefly through Workers’ Compensation insurance, required under state law.  Half of the costs are paid out-of-pocket by the injured workers and their families.  Thirteen percent of the costs are paid by private health insurance, and the remaining 16% are covered by federal, state and local government components of the social safety net.

Workplace injuries and illnesses exacerbate, the OSHA report claims, the burgeoning issue of income inequality.  Injured workers often fall into a trap, leaving them less able to save for the future, or to invest in skills and education that will permit them to advance.  Working families are pushed out of the middle class and into poverty, and low-income workers, often made to bear the greatest part of the cost of their job-related injuries and illnesses, are thwarted in efforts to enter the middle class.

According to the new OSHA study, the current, real-life benefits to workers from Workers’ Compensation are slight, and slipping.  Several studies have shown that fewer than 40% of eligible workers even file claims.  In Massachusetts, more than half the workers with work-related amputations receive any Workers’ Comp benefits; in California, one-third of the amputees received no benefits.

Many low-income and immigrant workers are deterred from even filing Workers’ Comp claims by language difficulties, or fear of losing their jobs.

And, even where workers do receive benefits under Workers’ Comp, it seldom offsets lost income.  A recent study in New Mexico found that workers receiving Workers’ Comp benefits in that state lose an average of 15% of the earnings (on average, more than $30,000) they would have been expected to earn in the ten years following their injuries. 

Individuals with work-related illnesses fare even worse under Workers’ Comp than workers injured in workplace accidents:  one study estimated that as many as 97% of workers with occupational illness are uncompensated.  Most cases of work-related chronic disease are never diagnosed as such; when linkage is made, the diagnosis generally comes long after employment ends.  Workers with job-related illnesses may get compensation, but it is more likely to be via private insurance, Medicare, Medicaid, or the Veterans’ Administration than Workers’ Comp.

 The OSHA report notes another factor at play in heaping the losses from workplace accidents and sickness onto employees.  Notably, by misclassifying employees as “independent contractors,” employees evade both OSHA coverage and Workers’ Comp premiums.  Employees engaging in this practice, unconcerned about the consequences of injuries, will seldom invest money or effort to ensure worker safety.

The presence of employees of multiple employers at a single worksite (typical of the construction industry) and the increased use of temporary employees are additional structural changes of employer-employee relations that the OSHA study points to as increasing workplace hazards, and increasing the share of accident burdens borne by the workers themselves.

OSHA’S report concludes that the most effective solution is greater efforts to prevent work injuries and illnesses.  In principle, of course, that has long been required by the OSH Act and other federal and state laws.  As the report notes, improvements in prevention would spare workers and their families from needless hardship and suffering, as well as from the loss of income and benefits associated with job-related injuries and illnesses.

While OSHA has probably been much less effective in combating job-related illnesses (which may develop only over many years) OSHA has produced respectable results in reducing accidental deaths.  In 1970, an estimated 18,000 workers were killed on the job, or about 38 a day, or 18 per 100,000 workers.  Today, with a much larger workforce, the gross number of deaths has been reduced by three-fourths, and to an annual rate of about 3.4 per 100,000.

However, the new OSHA report refers to studies that show that, each year, roughly 50,000 deaths in the U.S. are the result of past workplace exposure to asbestos, silica, benzene, and other hazardous agents.  In comparison, about 33,000 people died in traffic accidents in the U.S. in 2013.

The report stresses prevention over, among other things, requiring greater payment amounts under Workers’ Comp. As a matter of practicability, since Workers’ Comp is a state, rather than a federal, program, reform would be a drawn-out, politically laborious and uncertain process.  Even those state legislatures inclined to aid injured workers would no doubt be hesitant to act, since employers could effectively resist higher premiums, by threatening to shutter local operations, and take their businesses across a state line. 

Even if you’re a business owner, however, or think of yourself as a political conservative, you should keep in mind that, as a responsible, safety-conscious employer, your taxes (and Workers’ Comp premiums) are unfairly subsidizing your less-conscientious competitors.  Forth-four years after the passage of the OSH Act, it’s only fair to ask whether injured workers and taxpayers should pay so great a portion of the medical and income-loss consequences of workplace accidents.

The OSHA report mentions, and we should keep in mind, that studies based on statistics fail to account fully for the human costs of job-related injuries and illnesses.  These include physical suffering; inability to take part in recreational activities; marital stresses (and damaged relationship with children, friends, colleagues, and bosses); loss of self-esteem; the necessity to hold down multiple jobs (compounding the impact on family life); and worker fatigue (and resulting increases in work and traffic accidents).

This new OSHA study should provoke a needed discussion as to what we, as a society, ought to be doing about workplace dangers, and the burdens they now impose disproportionately on workers and taxpayers.  The report in its entirety can be read online at http://www.dol.gov/osha/report/20150304-inequality.pdf.

A “whistleblower” is someone, usually an employee, who brings to the attention of senior management, outside authorities, media, or the public at large assertions of wrongdoing by his employer.¬† Under the OSH Act, as well as many other federal and state statutes, there are prohibitions against firing, or otherwise retaliating against, employees who “blow the whistle” on their employer’s acts, or who assert their rights under any of the relevant statutes.

Employers cited under OSHA often believe, sometimes correctly, that the inspection leading to the citation was triggered by an employee complaint.  While seldom will such suspicions be susceptible of proof, the employer may be tempted to discharge or otherwise retaliate against an employee suspected of making a report to OSHA.

That’s a temptation you ought always to resist.

For one thing, the construction industry is one of the top producers of workplace injuries and fatalities.¬† As such, it is perennially targeted by OSHA for enhanced enforcement.¬† Thus, even assuming that your employee did report a violative condition, leading to an OSHA inspection and a citation, chances are good that — even in the absence of a report — you would have seen an OSHA Compliance Officer sooner rather than later anyway.

Second, the definition of a “Serious” OSHA violation is one likely to cause serious injury or death.¬† As unpleasant as it may be to be cited by OSHA for such a violation, your employee, by calling OSHA before a fatality or serious injury occurred, has actually done you a favor (even if his motives may not have been completely pure).¬† You really need to correct any “Serious” violation before a serious or fatal accident occurs.

Third, from an employee relations viewpoint, punishing an employee for exercising his or her legal rights is terrible policy.

Fourth, retaliating against an OSHA “whistleblower” is unlawful.

The OSH Act prohibits employers from discharging employees because they file complaints or otherwise exercise rights afforded by the Act, including, but not limited to, informing OSHA of unsafe conditions, and requesting a federal inspection.  29 U.S.C. § 660(c)(1) provides in part that:

No employer shall discharge or in any manner discriminate against any employee because [he] has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter . . . or because of [his] exercise . . . of any right afforded by this chapter.

The OSH Act further provides, in 29 U.S.C. § 660(c)(2):

Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the [U.S.] Secretary [of Labor] alleging such  discrimination.  Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate.  If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person.  In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.

It is therefore the Secretary of Labor, to the exclusion of the aggrieved employee, whom the statute authorizes to initiate a civil action in a federal district court based on an employer’s allegedly having violated the OSH Act by discharging or otherwise discriminating against the employee for reporting a safety or health matter.¬† Courts have held the statutory remedies to be exclusive:¬† they provide for the filing of a complaint with the Secretary of Labor, but not for the filing of a federal court action by the employee.

While the federal OSHA agency’s mandate is essentially to enforce standards, and promote workplace safety and health in those states that have not established analogue “Little OSHA” (state-run) agencies, interestingly Congress has put OSHA in charge of administering a total of some 21 federal “whistleblower protection” statutes.¬† These statutes, and administrative and case law rules construing them, generally protect employees engaging in “protected activity” from “adverse employment actions,” typically including firing or layoffs, blacklisting, demotion, denial of overtime or promotion, disciplining, denial of benefits, failure to hire or to rehire, intimidation, being threatened, reassignment affecting prospects for promotion, or reduction in pay or hours.

The whistleblower statutes administered by OSHA include, in addition to ¬ß 11(c) of the OSH Act itself, a panoply of environmental and nuclear safety laws, transportation industry laws, and consumer and investor protection laws.¬† Many of the transportation industry laws relate to employee safety per se (for example, the Federal Railroad Safety Act, the Seaman’s Protection Act, and the Surface Transportation Assistance Act, among others) while most of the others do not.

The statutes falling within OSHA’s authority have not been rewritten to make uniform what constitutes “protected activity,” or proscribed “adverse employment actions,” or what substantive remedies are available.¬† The time frames within which the administrative complaints must be filed range from 30 days to 180 days, according to which statute is claimed to have been violated, and some statutes allow for private lawsuits, whereas others do not.

One recent case that has garnered some attention involves a retaliation case under the Federal Railroad Safety Act.  A coach cleaner for Metro-North was retaliated against after he reported a knee injury he suffered in 2011.  While driving the injured employee to the hospital, a Metro-North supervisor reportedly told the worker that railroad employees injured on the job were written up for safety, and not considered for advancement or promotions within the company.

OSHA’s investigation found that the employee engaged in protected activity when he reported his injury and filed his complaints with OSHA; that Metro-North knew these were protected activities; and that these protected activities were contributing factors in Metro-North’s disciplining of the employee.

OSHA ordered Metro-North to pay the aggrieved employee $10,000 in compensatory damages, a whopping $250,000 in punitive damages (the largest punitive award ever in a FRSA case) and to expunge the employee’s record of all charges and disciplinary action.

 While this award is subject to a possible appeal, its severity should tell you all you need to know about the inadvisability of retaliating against employees who assert statutorily-protected rights under the OSH Act or other laws.

Thomas H. Welby is a licensed professional engineer and an attorney, and managing partner at Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains.  Geoffrey S. Pope, an attorney and counsel to the firm, collaborates in the preparation of this series.  Articles in this series are for general guidance only, and do not provide all information necessary to comply with OSHA, the N.Y. Labor Law and Industrial Code, and other legal requirements.

 

As an employer, you may have OSHA liability for a violation you did not create, and lack authority to correct.

The OSH Review Commission recently decided the Secretary’s appeal from part of an Administrative Law Judge’s decision that vacated two “Willful” items issued against a formwork subcontractor, arising out of the collapse of a garage during a concrete pour.  The garage was part of a construction project for a new six-story parking garage and an adjoining condominium tower.  The owner hired a firm of architects and a general contractor.  The architect engaged the engineer of record, who prepared “signed and sealed” structural drawings.  The GC, Choate, hired subcontractors, including a concrete finishing company, Pittman, and Southern Pan, the cited employer, and the shoring and formwork subcontractor.

Southern Pan was responsible for obtaining shoring and reshoring drawings, building the formwork, and placing concrete for some of the vertical pours (but not the horizontal pours).  The horizontal pours were Pittman’s responsibility.

Southern Pan hired two additional engineering firms:  Patent Engineering, to provide drawings for the shoring and reshoring, and Universal, to inspect the shoring and reshoring, and to determine whether these components were constructed according to Patent’s drawings.  The owner hired yet another engineering firm, Synergy, whose duties included insuring that the construction of all load-bearing components complied with the permit documents, and that the shoring and reshoring conformed to the plans.

Patent’s plans showed that shoring or reshoring was to extend down to the ground until the end of the construction phase.  Southern Pan, however, removed reshoring from the first, second and third levels of the garage well before the end of construction, and did so without making or requesting changes to Patent’s drawings.  Southern Pan elected to switch the shoring method to the “one over two” method, which, instead of shoring to the ground, shored the top level, and reshored only the two levels immediately below it.

Following the removal of the reshoring, the general contractor and concrete finishing sub successfully placed two horizontal pours in the garage.  During the next pour, however, part of the garage collapsed, killing one Southern Pan employee and injuring more than twenty.

Following an OSHA inspection, Southern Pan was issued four citation items (two “Serious” and two “Willful”) with recommended penalties totaling $125,000.  Southern Pan contested all four items, and following a hearing, the Administrative Law Judge (1) vacated both “Serious” items; (2) vacated one “Willful” item alleging a violation of a standard (29 C.F.R. § 1926.701[a]) that requires the employer to determine, “based on information received from a person who is qualified in structural design, that the structure or portion of the structure is capable of supporting” load to be placed on a concrete structure or portion of a concrete structure; and (3) affirmed a “Willful” item, that the employer had failed to have formwork plans available at the jobsite (29 C.F.R. § 1926.703[a][2]).

The Secretary sought review of the ALJ’s vacatur of the “placement of construction loads” citation item, and Southern Pan asked for review of the affirmance of the “availability of formwork plans” citation item.  In a 2-to-1 decision, the Commission upheld the Secretary’s appeal, and denied that of the employer.

The crux of the ALJ’s decision to vacate the “construction loads” citation item was his view that the standard applies only to the employer(s) directly responsible for the concrete operation (Choate, the general contractor, and Pittman, the concrete finishing contractor).

One member of the three-member Commission, Commissioner MacDougal, agreed with the ALJ in her dissent, and cited the preamble to the final rule indicating that the construction loads standard applies to an employer “directly responsible for the concrete operations.”

The majority, in setting aside the ALJ’s determination to vacate the construction loads item, found the issue to be not the applicability of the standard, but the nature of Southern Pan’s compliance obligations.

Based on long-standing Commission precedent, the majority found, an employer whose own employees are exposed to a hazard or violative condition (an “exposing employer”) has a statutory duty to comply with a particular standard, even where it did not create or control the hazard.  In the case before the Commission, the majority found, Southern Pan was indisputably an “exposing employer.”  As such, it was required to do what was realistic, under the circumstances, to protect its employees, even though full, literal compliance with the standard might have been unrealistic.

Citing a 1975 Commission decision, the Commission in Southern Pan stressed that “simply because a subcontractor cannot himself abate a violative condition does not mean it is powerless to protect its employees.  It can, for example, attempt to have the general contractor correct the condition, attempt to persuade the employer responsible for the condition to correct it, instruct its employees to avoid the area where the hazard exists if . . . practical, or in some instances provide an alternative means of protection against the hazard.”

The Commission remanded this item for a determination of whether Southern Pan had made reasonable efforts to protect its two employees exposed to the violative condition, and (if it did not) whether it knew or should have known of the condition giving rise to the violation.

The Commission also found that the “formwork drawings available onsite” citation item was rightly affirmed by the ALJ.  In addition to rejecting a somewhat technical pre-emption” argument made by Southern Pan, the Commission rejected Southern Pan’s arguments that it had all “available” plans onsite, and that its responsibilities were fulfilled when Synergy (the owner’s inspector) obtained consent via e-mail from the Project Engineer to carry out the shoring and reshoring removal.

Unlike many documentary requirements, which typically result in “Other than Serious” citations at most, the requirement of having all formwork plans and revisions onsite is no mere technicality.  Formwork is designed to transfer weight from the structure.  Without the drawings or plans immediately accessible, questions regarding the design and integrity of the forms or shoring layout cannot be properly addressed, and the standard’s purpose, to prevent accidents that could result from improperly erected formwork, is compromised.

The “takeaway” from Southern Pan is that plans and revisions regarding construction loads must be maintained on-site.  Also, if any of your employees are exposed to a violative condition that your company neither created nor controlled, you remain responsible for that condition, even if it is beyond your power to fully abate it.  If you know or should know of the hazard, your obligation under OSHA is to notify (we suggest in writing whenever possible) the directly responsible party (and the general contractor and premises owner) and to take any and all such other measures, practicable in the circumstances, to have the condition corrected, and to protect your employees.

It’s important from time to time to review, and to remind your employees, about even the most basic procedures to be followed to ensure the safe performance of work in the construction trades.

Although such injuries are seldom fatal, it’s common for workers to be injured while using hand tools and portable power tools.  Injuries sustained while using tools may result from the use of the tools themselves, as well as from falls, being struck by falling objects or projectiles, and exposure to harmful fumes, or other airborne substances.

Perhaps the most basic rule to observe is that no one should use a tool that he or she doesn’t know how to use, and use safely.  No less fundamental is that only competent, authorized personnel should be permitted to repair tools, in accordance with manufacturers’ specifications.

Common injuries from the use of hand tools include cuts or lacerations from sharp edges or surfaces, eye injury from flying objects dislodged and projected from the tool, and bruises from the user striking some part of his body with the tool.

Generally, hand tool injuries are caused by the use of the wrong tool for the job; the improper use of the tool; the use of a defective tool, or one not properly inspected or maintained; and the failure to wear eye or face protection, safety shoes, or other necessary personal protective equipment.

It is essential, therefore, when using hand tools, for employees to wear appropriate PPE, and to inspect their tools to detect loose hammer heads, bent screwdriver bits, dull knives, etc., and to remove defective tools from service, and report the matter to a supervisor.  Employees should also be trained that, if uncertain as to what PPE to use, they should consult a supervisor.  To reduce the risk of slips and falls, floors in areas where tools are in use must be kept clean, dry and free of debris.  The use of tools in proximity to explosive or flammable substances generally requires the use of spark-resistant tools of brass, wood, plastic or aluminum.

Power tools present dangers exceeding those associated with hand tools.  Electric tools have as their main hazard the danger of electrocution, shocks, and burns.  Those dangers are caused or enhanced by faulty power cords, the misuse of power cords, improper insulation or grounding, the failure to use a Ground Fault Circuit Interrupter, and use in wet conditions, or around wet surfaces.  Electric tools should always have a three-wire cord (and be plugged into a three-hole receptacle) or, better, be double-grounded, with a housing unable to conduct electricity to the user.

Gasoline and mixed-fuel tools may emit flammable or explosive fuel vapors and/or toxic exhaust.  Care must be taken in handling, transporting and storing the fuel.  The device must be shut off and allowed to cool before refueling (to prevent accidental ignition of hazardous vapors) and ventilation, or PPE, is required as protection against carbon monoxide or other hazardous emissions, especially where the device is to be used in a closed area.

Gasoline or mixed-fuel devices should be equipped with a trigger lock to prevent accidental activation, as well as a constant pressure throttle control (like the one on your lawn mower) that will shut the power off when pressure is released.  They should be inspected regularly for fuel leaks, and to ensure that mufflers, spark plugs and wires are in good condition.

Pneumatic tools’ greatest danger is the risk of being struck by one of the tool’s attachments or a fastener.  PPE (including, in the case of jackhammers or other high-decibel devices, hearing protection) are essential.

“Do’s” for the safe use of pneumatic tools also include checking to see that the tools are fastened securely to the hose; safety clips or retainers to prevent attachments (such as the chisels on a chipping hammer) from being “shot” from the barrel, and the use of screens to protect other employees or passersby from being struck by flying fragments.

The air-hose must be designed to withstand the pressure to be applied.  If the hose is more than half an inch in diameter, a safety excess flow valve must be installed, to shut down the source of air automatically, in the event that the hose breaks.

“Don’ts” in using pneumatic tools include the use of an air line having a leak, the use of an air hose for cleaning at nozzle pressures exceeding 30 psig (or without chip protection), kinking the airhose, or permitting it to lie across walkways or aisles.  Generally, the trigger on an air hammer, impact wrench or similar tool should not be squeezed, until the tool is in contact with the work.

Every type of power tool has its own safety requirements, but the following is a partial list of safety rules that most types have in common:

• Read and understand the manual.
• Use tools only for tasks that they are designed to perform.
• Use electric power tools that are properly grounded, and in conjunction with a Ground Fault Circuit Interrupters.
• Don’t use electric power tools around flammable vapors, dusts or construction materials.
• Avoid using electric tools in wet environments.
• Only use recommended attachments, and be sure that they are properly installed.
• Inspect tools for damage.  If a tool is damaged, or becomes damaged while in use, report it, and remove the tool from service until repaired.
• Feed materials at the rate the tool is designed to handle, and avoid excessive force to try to make cutting tools cut faster.
• Maintain your balance, avoid over-reaching, use a tight grip, and grasp the side handle where available.
• Never use power tools when tired, distracted, or under the influence of alcohol or drugs.

Your training and procedures should include maintenance, storage, and transportation protocols.  Power tools, for example, should be periodically checked and repaired, as necessary, by authorized repair personnel.  The power supply should be disconnected before making repairs.  Only equivalent replacement parts should be used, the tool or its parts should not be altered, and parts should not be added or removed.

Sharp tools should be stored in a specially-designated cabinet equipped with a blade guard.  Gasoline or other flammable fuels should be drained before long-term storage, and tools should, when appropriate, be de-energized (removing air pressure, de-pressurizing hydraulics, and removing loads).

Transportation guidelines should include prohibitions against carrying power tools by their electric cord, air line, or hydraulic hose.  Sharp or pointed tools should not be carried with the “business end” pointed upward or toward the body, or handed to another person with the sharp end toward the receiver.  Tools must never be thrown at, or toward, another person, or handed to another person while in operation.

To withstand a contest to an OSHA citation, the Secretary of Labor must prove four elements by a preponderance of the evidence.  The first element is that the cited standard applies.  The second is a failure to comply with the cited standard.  The third is that one or more employees have had access to the violative condition.

The fourth and last element is probably the one most often litigated:  “actual” or “constructive” knowledge of the violation on the part of the employer.  This requires that the employer (including a supervisor whose knowledge can be imputed to the employer) have known or that the employer “could have known with the exercise of reasonable diligence” of the violative condition.

The OSH Act provides for an “unpreventable employee misconduct” defense to an OSHA citation.  This is an “affirmative defense,” because an employer who fails to assert it waives it, and the employer who does assert it has the burden of proving it.  The concepts governing the “unpreventable employee misconduct” defense resemble those related to “constructive knowledge” of a violation.

Since what constitutes “reasonable diligence” can vary, based on the facts of a given case, there is no precise standard of what constitutes “constructive knowledge.”  In Secretary v. J. Reed Constructors, Inc., for example, the OSHA compliance officer espied two workers in an aerial lift, applying Tyvek to the exterior walls of a school entrance undergoing renovation.  The lift was raised about 35 feet above grade, and neither man was tied off.  This plainly violated the OSHA standard requiring that a body belt be worn, and a lanyard attached to the boom or basket, when working from an aerial lift.

Charged with a “Repeat” violation, the employer in J. Reed conceded the applicability of the standard, failure to comply with the standard’s terms, and employee access to the violative condition.  Contesting the lone citation item — which, as a “Repeat” violation, carried a $14,000 penalty — the employer based its defense on (1) a claim that “the owners and the management of the company did not know that the violation was going on;” and (2) the affirmative defense that its employees’ failure to tie off was “unpreventable employee misconduct.”

As there was no evidence that the employer’s single supervisor onsite had observed the employees working from the aerial lift without fall protection, “actual knowledge” was disproved.  The Secretary was therefore required to rely upon “constructive knowledge” to establish the violation.

The Administrative Law Judge reviewed the evidence concerning the employer’s exercise of due diligence to discover, and prevent, its employees’ violative conduct.  The employer, it found, had a safety manual stating a “100% tie-off policy” when working 6’ or more above grade, but the manual was available only in English, whereas many of the company’s employees (including both employees seen in the lift by the compliance officer) were Spanish-speaking, and the manual was distributed only to supervisors.  No safety classes for the employees in the lift were held.

The supervisor in charge on the day of the inspection spoke only a few words of Spanish, was “all over the place” and “super busy” on the day of the occurrence, and explained his failure to see men working in the lift without tying off during the six hours they were applying the Tyvek to the exterior wall by stating “I can’t be everywhere all the time” and that “there’s no way to babysit everybody.”

The employer in J. Reed had two prior citations for employees’ failing to tie off while working from aerial lifts, and admitted that it generally neglected “Job Safety Analysis” procedures. described in the company’s safety manual as the “cornerstone” of its overall safety program.

Based on the foregoing, the ALJ in J. Reed concluded that the employer had failed to adequately train its employees, to monitor its employees’ use of fall protection, and to take measures to prevent fall protection violations.  It had no specific work rule requiring that employees working in lifts be tied off, and its safety program (such as it was) was communicated at the discretion of the supervisors, without sufficient efforts to impart specific rules to non-English speaking employees.

Despite being on notice (from past OSHA citations) that its employees at times failed to tie off while working from aerial lifts, J. Reed Constructors took no steps to ensure that the crew be monitored, and did not even discipline the crew when its infraction was discovered.  This failure to discipline, the ALJ found, signaled to the employees that the company did not take its own safety program seriously, and justified a finding of a lack of due diligence.

The ALJ in J. Reed rejected the “unpreventable employee misconduct” defense “for most of the same reasons the Secretary’s case for constructive knowledge succeeded.”  The defense is established by showing that the employer established a work rule to prevent the violation, adequately communicated the rule to employees including supervisors, took reasonable steps to discover violations of the rule, and effectively enforced it.  The ALJ found that the employer had established a rule, but that none of the additional necessary elements had been shown.  The citation and proposed penalty were therefore affirmed.

The OSH Review Commission took a more lenient approach in Secretary v. LJC Dismantling Corp., finding a lack of actual and constructive knowledge, and vacating a citation item that had been affirmed by the ALJ.

The item in question involved a failure to correctly plan a scaffold, which failure resulted in an injury.  The Secretary based an argument of “actual knowledge” based on a foreman’s testimony that he had seen the injured employee “on scaffold” at the beginning of the workday.  Other evidence, however, showed that the injured employee had not even begin to erect the scaffold when the foreman was on the roof, and that the accident occurred about two hours after the workday began, at which time the injured employee had been on the scaffold for only a few minutes.  This inconsistent evidence, the ALJ found, was insufficient to establish actual knowledge.

The Secretary’s insistence that the improperly-planked scaffold was in plain view, and should therefore have been known to the employer, was also rejected.  While the gap to the planking was in plain view, the commission found, nothing in the record showed that that defect existed while the foreman (or other supervisor) was in the area prior to the accident.  The injured employee completed the scaffold, climbed up, and was injured before finishing preparations to do his work.  Since he had not begun to erect the scaffold until two hours or less before the accident, there was not sufficient evidence to show that the condition was present for a long enough time that the employer should have known about it.

If you have and communicate safety rules, take steps to discover infractions, and enforce the rules by effective disciplinary measures, not only will you have a shot at establishing the “unpreventable employee misconduct” defense, but you will almost certainly have fewer OSHA violations.

OSHA recently released new, updated rules regarding the reporting of fatalities and severe injuries and illnesses.  These rules apply to states under federal OSHA jurisdiction (which include New York, New Jersey, and Connecticut).

At present, employers must report to OSHA all work-related fatalities, and all work-related hospitalizations of three or more employees.

Effective January 1, 2015, employers will be required to report:

• All work-related fatalities;
• All work related, in-patient hospitalizations of one or more employees;
• All work-related amputa­tions; and
• All work-related losses of one or both eyes.

As at present, fatalities will have to be reported to OSHA within eight hours of the employer finding out about it.  In-patient hospitalizations, amputations, and eye losses will have to be reported within 24 hours of the employer learning of them.

Only fatalities occurring within 30 days of the work-related incident must be reported.  An in-patient hospitalization, amputation, or eye loss will be reportable only if occurring within 24 hours of the work-related incident.

Employers have two, and will soon have three, options for reporting fatalities and the other incidents required to be reported:

• By phone, to your local area office (the Tarrytown area office number is 914-524-7510, and the Albany area office number is 518-464-4338);
• By calling the 24-hour OSHA hotline (1-800-321-6742); or
• Electronically, through a soon-to-be-released system to be accessible through OSHA’s website, www.osha.gov.

Upon reporting any of the above occurrences to OSHA, all of the following information must be provided:

• The name of the establishment;
• The location where the work-related incident took place;
• The date and time of the incident;
• The type of incident (fatality, loss of eye, etc.);
• A brief description of the incident;
• The number of employees affected;
• The name(s) of all affected employees;
• The name and telephone number of a contact person for the employer.

Certain types of incidents are not required to be reported.  For example, injuries, etc. resulting from a motor vehicle accident on a public street or highway are not required to be reported, unless the accident happened in a construction work zone.

Likewise, incidents occurring on a commercial or public transportation system (airplane, subway, bus, ferry, streetcar, light rail, train) do not need to be reported.

Events occurring more than 24 hours after the work-related incident (or 30 days thereafter in the case of a fatality) are not required to be reported.

Finally, in-patient hospitalizations (defined as a formal admission to an in-patient service of a hospital or clinic for care or treatment) do not need to be reported, if admission was for diagnostic testing or observation only.  If, however, it is determined following admission that the employee suffered a heart attack due to a work-related incident, that must be reported.

The new rules also revise the manner in which OSHA classifies industries to determine which are “low hazard” industries, “partially” exempt from the rules requiring the maintenance of injury and illness records.  In general, the industries classified as “low hazard” are those with Lost Workday Injury and Illness rates 75% or less of the average rate for all of private industry.  Also, OSHA is switching from the “Standard Industrial Classification System” to the “North American Industry Classification System.”  While few, if any, construction-related companies are classifiable as “low-hazard” under either system, the record-keeping requirements apply only to employers having 11 or more employees at any time during the preceding calendar year.  (The exemption for size is based on the number of employees in the entire company, not just field employees.)

OSHA refers to the low-hazard industries as “partially exempt” because they may be required to keep records, on notice from the Bureau of Labor Statistics, for the BLS’s annual survey, or by OSHA, as part of the OSHA Data Initiative.  Note that even partially exempt employers must comply with the rules requiring that fatalities, hospitalizations, etc. be reported.  If you have any question concerning your company’s possible status as a “low-hazard” employer, instructions for determining if your company’s primary business activity qualifies it for such status may be found on OSHA’S website, or you can contact your local OSHA office for help.

Under OSHA’s recordkeeping regulations, certain employers must prepare and maintain records of significant occupational injuries and illnesses, using the OSHA 300 Log.  The data in these logs is used to evaluate the safety of the employer’s workplace, but also in identifying hazards, and developing measures to reduce and eliminate them.

I assume that nearly all readers of this series are already familiar with OSHA Form 300 (the Log of Work-Related Injuries and Illnesses), Form 300A (Summary of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report).  The “Summary” (Form 300A) must be completed and posted annually, even if no recordable work-related injuries or illnesses occurred during the year.  The “Log” and “Incident Report” need to be completed only if a recordable injury or illness has occurred.  Forms equivalent to the official forms (such as an insurance form instead of the Incident Report, supplemented if appropriate to provide information, if any, not on the insurance form, that the Incident Report requires) may be used.

Still pending is a proposed rule that would permit OSHA to cite employers for discouraging workers from reporting injuries or illnesses.  OSHA is looking to deter employers from using incentive programs, such as rewarding workers for a fixed number of days without a reportable injury, to discourage workers from reporting when they are injured or made sick on the job.

A copy of the Final Rule can be found online at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FEDERAL_REGISTER&p_id=24728.  OSHA’s website has a recordkeeping section, which may be accessed at https://www.osha.gov/recordkeeping/.