From time to time, I am asked whether violating OSHA makes the employer liable in a personal injury action — or, more generally, how OSHA fits into the framework of statutory and case law provisions designed to safeguard the health and safety of construction workers, and to give workers redress for injuries suffered on construction jobsites.

Broadly speaking, in New York there are four schemes, whereby federal and state laws endeavor to safeguard workers, and provide injured workers with compensation:

1. Federal OSHA (the OSH Act, and the agency that enforces it);
2. The New York State Industrial Code, and activities of the New York State Department of Labor;
3. Workers’ Compensation; and
4. Personal injury litigation, under the common law, and N.Y. Labor Law §§ 200, 240, and 241(6).

Additional facets of worker protection, having limited relevance to construction activities, will be mentioned only in passing.  One is that mine safety (mining is more widespread in New York than you might think) comes not under the OSH Act, but under the Mine Safety & Health Act of 1977.  Both the United States and New York Departments of Labor have agencies known as the “Mine Safety & Health Administration.”  The federal MSHA enforces the Mine Safety & Health Act, while the New York MSHA concentrates on safety and health training programs.  There also exist a Federal Employers’ Liability Act, and a Federal Railroad Safety Act as well.

As in New Jersey and Connecticut, New York’s state and local municipal employees are outside the protection of OSHA.  In New York, they come under the care of the Public Employee Safety & Health Bureau, part of the State Department of Labor.

Also, while liability insurance (as distinguished from Workers’ Compensation) is not a statutory or administrative program, to the extent that it is, in practice, mandated on many construction projects, such coverage provides resources potentially available to compensate injured workers.

While many states comply with the federal OSH Act through state-administered, “Little OSHA” agencies, in New York, New Jersey and Connecticut, most private-sector employment is overseen by federal OSHA.

 The NYS Industrial Code, and construction safety-related activities of the NYS Department of Labor, occupy a Zone straddling the boundary between preventative and compensatory aspects of New York’s employee safety environment.  The Industrial Code was, before OSHA, a primary source of protection for New York workers.  OSHA was enacted with a “savings clause,” and does not wholly pre-empt the Industrial Code.  Since the advent of OSHA, however, updates and amendments to the Industrial Code have been infrequent.  The NYS Department of Labor continues to carry out safety-related inspection and enforcement activities, but — except in the domain of State and municipal employment — generally the NYSDOL’s efforts in this area are modest, and confined largely to specialized issues, crane safety being one noteworthy example.

Workers’ Compensation, of course, was an early-20^th century reform.  Its primary features are that virtually all employers are mandated to maintain workers’ comp coverage, and it provides relatively speedy   (albeit limited) compensation, on a “no fault” basis, to injured employees.

Personal injury lawsuits in which injured construction workers are plaintiffs are generally based on common-law negligence, and one or more of Sections 200, 240, and/or 241(6) of the Labor Law.  Section 200 is essentially a codification of common-law principles, requiring places of employment to be “so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.”  It provides further that “all machinery, equipment, and devices . . . be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons.”

  Labor Law § 240 is the notorious “Scaffold Law,” making both contractors and premises owners (excepting owners of one- and two-family dwellings who not direct or control the work) liable for injuries resulting from gravity-related occurrences, due to any failure to provide scaffolding, ladders and other safety devices.  Insurers, and those who pay their premiums, abhor this statute, because the injured plaintiff’s “comparative negligence” will not be considered by the jury, except if it was the “sole proximate cause” of the injury-producing occurrence.

Labor Law § 241(6) requires all areas in which construction, excavation or demolition work is being performed to be “constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”

The primary present-day importance of the Industrial Code is that, under Labor Law § 241(6), the touchstone of liability is that the defendant have violated one of its specific, “concrete” provisions, i.e., one not merely related to general safety standards.

One does see OSHA violations alleged in personal injury lawsuits, both as violations of Labor Law § 241(6), and as independent causes of action.  Such allegations are routinely rejected.  OSHA violations may come into evidence as indicative of negligence, but the fact that conduct violating OSHA caused, or contributed to, the plaintiff’s injuries does not establish negligence per se (even if the violation was cited by OSHA, and the citation was not contested, or was upheld).  There is no private right of action under OSHA.  An employee aggrieved by his employer’s violation of any OSHA standard is to report the violation to OSHA’s area office, which should trigger an inspection.

A major difference between OSHA and New York statutory and common-law liability is that OSHA focuses on the employment relationship, whereas liability under the Labor Law extends to injuries to “persons lawfully frequenting” the workplace.  Also, the owner of a construction site (other than the owner of a one or two-family dwelling who contracts for, but does not direct or control the work) may be liable for damages sustained by an injured worker, if it had the right to control the conduct of the injury-producing work, or actual or constructive notice of the dangerous condition at issue.  Under OSHA, generally the owner will not be liable, at least if it did not have its own employees who caused, or were exposed to, the hazard.

Overall, as one New York judge observed, “the system used by OSHA to promote safety consists of inspections of worksites and citations and penalties conferred upon the employer,” but “New York law relies upon the threat of private lawsuit for damages brought by the injured workman to motivate the owner or contractor.

While OSHA violations, therefore, have but limited relevance to personal injury actions brought by injured construction employees, an employer’s conscientious compliance with OSHA’S construction standards will minimize, although it cannot totally eliminate, the prospect of injuries serious enough to result in a lawsuit.

Construction work is inherently dangerous, and OSHA’s construction standards are complicated and comprehensive.  Some of the standards, frankly, are pretty technical.  You are required to train your employees in all of the standards applicable to your trade, but getting a multilingual, transient workforce, consisting in large part of young, risk-taking males, to understand and comply with all of the rules is no small challenge.

   Since your paramount goal, however, is minimizing harm, rather than achieving 100% compliance and never being cited by OSHA, it’s a good strategy to look at the work you do pretty much every day, and to emphasize those safety issues that are easy to understand, and likely to cause serious injuries if the rules are not consistently complied with.

Falls, we all know, are the #1 hazard in construction, and a lot of falls are from ladders.  Just as it’s shocking, or ought to be, to see workers wearing harnesses, but not tied off, while working 90 feet above grade, it ought to shock you into taking corrective action when you see, for example, an employee up on a visibly defective ladder, or ascending a ladder using both hands to carry a heavy load, or placing a portable ladder on a wet, slippery surface.

Ladder design is somewhat technical, but safety in the usage of ladders is not.  Much of it comes down to matters of common sense.  In short, it’s an aspect of your safety program that is relatively easy to get right.  Accordingly, and as inattention to ladder safety is likely to result in lots of injuries as well as OSHA violations, a lack of effort in inexcusable.

OSHA regulations require training, and retraining, in all of the following:

• The nature of fall hazards in the work area;
• Correct procedures for erecting, maintaining and disassembling fall protection systems to be used;
• The proper construction, use, placement, and care in handling of all stairways and ladders; and
• The maximum intended load-carrying capacities of ladders used.

One rule that should never be violated is that portable or fixed ladders with structural defects (e.g., broken or missing rungs, cleats or steps, broken or split rails, corroded components, etc.) should be tagged “Do Not Use,” and removed from service until repaired and restored to their original design criteria.  Ladders must be inspected by a “competent person” for visible defects, periodically and after any incident that could affect their safe use.

Ladders must be kept free of oil, grease, and other slipping hazards, used only for the purpose for which designed, and not loaded beyond the maximum for which they were built, or the manufacturer’s rated capacity.  Wooden ladders must not be coated with any opaque covering, except identification or warning labels, on one face only of a side rail.  The rungs and steps or portable metal ladders must be corrugated, knurled, dimpled, coated with skid-resistant material, or treated to minimize slipping.  Ladder components must be surfaced to prevent injury from punctures or lacerations, and prevent snagging of clothing.

Ladders must be used only on stable and level surfaces, unless secured to prevent accidental movement.  They should not be used on slippery surfaces, unless or secured or provided with slip-resistant feet.  Slip-resistant feet should not be used as a substitute for care in placing, lashing, or holding a ladder on a slippery surface.

The area around the top and bottom of a ladder must be kept clear.  If used where the ladder or the user could come into contact with exposed, energized electrical equipment, the ladder must have non-conductive siderails.

Ladders placed in passageways, doorways, or driveways, or where they can be displaced by workplace activities or by traffic, must be appropriately secured or barricaded.

 When portable ladders are used for access to an upper landing surface, the side rails must extend at least 3 feet above the upper landing surface.  When such an extension is not possible, the ladder must be secured, and a grasping device, such as a grab rail, must be provided to assist users in mounting and dismounting the ladder.  A ladder extension must not deflect under a load that would cause the ladder to slip off its support.

The top of a non-self-supporting (or leaning) ladder must be placed with two rails supported equally, unless it is equipped with a single support attachment.  Single-rail ladders must not be used.

Non-self-supporting ladders must be used at an angle where the horizontal distance from the top support to the foot of the ladder is approximately one-fourth of the working length of the ladder.  Wooden, job-made ladders, with spliced side rails, must be used at an angle where the horizontal distance is one-eighth the working length of the ladder.  Fixed ladders must be used at a pitch no greater than 90 degrees from the horizontal, measured from the back side of the ladder.

Ladders must not be moved, shifted, or extended while in use.  Ladders must not be tied or fastened together to provide longer sections, unless they are specifically designed for such use.

When moving up or down the ladder, the user must face the ladder, avoid leaning over laterally beyond the side rails, and use at least one hand to grasp the ladder.  The user must not carry anything that could cause him to lose his balance and fall.

A metal spreader or locking device must be provided on each stepladder, to hold the front and back sections in an open position while the ladder is being used.  Cross-bracing on the rear section of stepladders must not be used for climbing, unless the ladders are designed and provided with steps for climbing on both front and rear sections.  The top or top step of a stepladder must not be used as a step.

Approximately one-fourth of all nonfatal falls on construction sites are from ladders.  Older workers, especially, are likelier to suffer death or serious injuries in falls involving ladders.

A more comprehensive resource for construction safety professionals and onsite supervisory personnel is Carol Epling, “Preventing Falls from Ladders in Construction:  A Guide to Training Site Supervisors,” which can be downloaded online from the website of the Electronic Library of Construction Occupational Safety & Health (ELCOSH).

OSHA has overhauled its standards for the construction of electrical transmission and distribution installations, and the general industry and construction standards for electrical protective equipment.  The new rules make the construction standards more consistent with the more recent general industry standards, as well as with approved consensus standards already in widespread use. 

In addition to electrical utilities, the new rules impact contractors building, repairing, and maintaining electric power facilities, and manufacturing (and other) firms that own or operate their own electrical power generation, transmission or distribution installa­tions as a secondary part of their business operations.  Tree-trimming companies will also be affected.

While space does not allow a full examination of the new electrical standards, the primary changes under the new rules fall mostly under four categories:  (1) new provisions regarding the passing of information between the “host employer” and “contract employers;” (2) revised provisions on the use of fall protection systems; (3) revised requirements for “MAD,” or minimum approach distances; and (4) new requirements to protect employees from hazards associated with electric arcs.  We’ll look at these briefly, in the order listed.

Sharing of information:  Under the new rules, the host employer is required to pass on to the contracting employers all information concerning safe work performance related to the design, condition, operation and capacity (fault currents) of all equipment.  Each of the contract employers is required, in turn, to pass instructions to their respective employees, based on information received from the host employer.

Each contract employer should contact the host employer, before work begins, of any unique hazards not covered in their conversation.   During performance, the contract employer should contact the host employer, within two working days, when unanticipated hazards become apparent.

The host and contract employers are to coordinate work rules, so that all employees are properly protected.

Labeling the calculated fault current on electrical equipment has been an NFPA 70E requirement since 2008, but is not a requirement prescribed under the new OSHA standards.  Labeling outdoor, high-off-the-ground equipment is of doubtful utility, but  maximum fault current, and maximum clearing time of the upstream protective device in the system, is critical information, which should be included in written or electronic work orders, and documented, in a readily-accessible place, in locations where arc flash incident energy labels are not installed.

Each contract employer should have — and the host employer should make sure that each of them has — supervisory processes to ensure worker compliance with electrical safe work processes.  OSHA’s new standards do not require that a pre-job meeting be documented, but we recommend that minutes of such a meeting state, in detail, what information was shared, as well as a summary of what initial and refresher training is contemplated, and what monitoring will be done to ascertain what safety-related information is (and is not) being understood and followed, so that refresher training cycles can be determined accordingly.

Fall protection: Under the new standards, workers climbing poles and elevated 4’ or more off the ground must use fall protection systems,  unless the employer can show that doing so is infeasible, or creates an additional or greater hazard.  Workers performing covered work can no longer use body belts as part of a fall arrest system; they must use harnesses.  (According to OSHA, it’s mainly employees of tree-trimming services that use body belts at present).

Work positioning systems must now be rigged, so that an employee cannot free-fall more than 2 feet.  Companies now working under NFPA 70E and 2012 NESC standards must change their training and work rules, as fall protection is now required at 4’ elevations (not 10’) and it’s no longer permissible to be unattached during repositioning activities.

Minimum approach distances:   Under OSHA’s new rules, MAD will now be calculated using tables based on engineering principles, including system transient overvoltage and spark-over distances mainly applicable when working on systems greater than 72.5kV.  Distances must be appropriate for the particular workplace, not the industry at large.

Companies following NFPA 70E or 2012 NESC need to note, and incorporate into their training and procedures, differences in the definitions of certain terms, as used in the new OSHA standards (e.g., MAD, or minimum approach distance; LAB or “boundary — limited approach;” RAB, or “boundary — restricted approach;” and AFB, or “boundary — arc flash”).

Protection from electric arcs:  These new rules are intended, among other things, to afford workers the benefit of clothing made of flame-resistant materials, rated to withstand the incident energy of electrical arc flash exposure, and reduce the likelihood of burns.

Under OSHA’s new rules, employers must estimate the arc flash incident energy to which employees could be exposed. In devising the new rules, OSHA in effect rejects the NFPA 70E tables now widely utilized, in that those tables prescribe appropriate levels of PPE based in part on the likelihood that an arc will occur.  OSHA’s approach under the new rules bases the determination of the level of PPE solely on incident energy:  if there is a significant likelihood that an arc will occur, then protection against the full incident energy of the arc flash is required.

Where the incident energy calculation exceeds 2.0 cal/cm² the employer must require that exposed employees wear clothing with a rating equal to or greater than the expected exposure.  This will generally need to include rubber insulating gloves and leather protectors (or 12-oz. leather work gloves), heavy-duty work shoes or boots, and a Class E hard hat.

Polypropylene has been added to the list of prohibited fabrics for protective clothing.

Employers must henceforth have written statements in their electrical safety program, prescribing worker attire from the skin out.  Compliance with NFPA 70E in determining PPE levels may no longer constitute compliance with the new OSHA rules, especially when working from a bucket, on a pole, or while using a live-line tool.

One aspect of the new rules that threatens confusion and noncompliance is the requirement, above a certain threshold level, for face protection.  Many workers find that face protection limits visibility, and are resistant to using it.  Also, heat stress mitigation will probably be required where arc-rated clothing must be worn, and it is controversial whether 40 cal/cm² arc-rated clothing is truly necessary.

Additional subjects addressed in the new rules include job briefings; insulation and work­ing position of employees working on or near live parts; de-energizing trans­mis­­sion and distribution lines and equipment; protective grounding; operating mechanical equipment near overhead power lines; and working in manholes and vaults.

Full documentation concerning the new rules can be found on OSHA’s website, or in the Federal Register.

Respirable crystalline silica (RCS), particles 100 times smaller than ordinary sand, is created during operations involving stone, rock, concrete, brick, block, mortar, and industrial sand.  Exposure to RCS can occur when cutting, sawing, grinding, drilling, and crushing these materials.  RCS exposure causes silicosis, an incurable and progressive disease, as well as lung cancer, other respiratory diseases, and kidney disease.

As long ago as the 1930s, then-Secretary of Labor Frances Perkins declared that by “control measures conscientiously adopted and applied” silicosis could be prevented.   From its earliest days, OSHA has had standards limiting employee exposure to RCS.

However, permissible exposure limits (PELs) for RCS remain as adopted back in 1971.  Current PELs are twice as high for construction and shipyards than under the general industry standard, and they are based on a method for measuring employee exposure that has been obsolete for forty years.  During which time, multiple agencies (including the U.S. National Toxicology Program, the International Agency for Research n Cancer, and the National Institute for Occupational Safety and Health) have all identified RCS as a carcinogen.

Accordingly, OSHA has undertaken to modernize and strengthen the RCS standards, and published a Notice of Proposed Rulemaking on the subject in September 2013.  OSHA’s  rulemaking process can be seen as cumbersome and slow; another way of looking at it is that OSHA really does strive to “get it right,” from a technical standpoint, as well as in carrying out its mandate to protect workers, without imposing impossible burdens on employers.  The process involved in formulating new OSHA standards includes a thorough review of industry consensus standards, and the underlying scientific and technical evidence.  OSHA also carries out extensive outreach to the public and, especially, to employer and employee organizations and other interested parties.  Considerable effort goes into soliciting participation in the rulemaking process, and comments on the proposed rule.

The pending proposals (one for general and maritime industries, the other for construction), following their publication in the Federal Register, were the subject of a comment period extended into February 2014, a live “webchat” in January, and public hearings in March and April.

Subject, naturally, to changes by the time the proposed rule becomes a final rule, the new construction standard will limit worker exposure to a new PEL of 50 μg of RCS per cubic meter of air, averaged over an 8-hour day.  This new PEL will apply to all industries covered by the rule.

In addition, procedures for measuring exposure will be modernized, access will be limited to areas where silica exposures are high, and medical exams will be provided to workers with high silica exposures.  Effective methods are prescribed for reducing exposures, and workers must be trained about silica-related hazards and how to limit exposure.

OSHA estimates that the proposed RCS rule will cost about $1,242 per year per workplace covered by the rule (but only about $550 for firms with fewer than 20 employees) while providing average net benefits of about $2.8 to $4.7 billion annually over the next 60 years. 

OSHA estimates that the proposed rule, when fully implemented, will save nearly 700 lives, and prevent 1,600 new cases of silicosis per year.

OSHA does not expect the proposed rule to have any discernible impact on total U.S. employment.

Pending approval of the new rule, there are a number of basic engineering controls which you should consider implementing, if your trade works with brick, concrete slabs, block and pavers, etc.

Hand-held abrasive cutters (a/k/a cut-off saws, chop saws, or quickie saws) are used extensively — often without dust controls — to cut brick, concrete and other materials containing RCS.  There are two widely-used engineering controls used to reduce dust exposures from the use of these saws.  The first suppresses dust using water, typically from a portable pressurized tank or a hose, applied through nozzles to the blade of pneumatic, hydraulic, or gasoline-powered saws.

The other common method to control dust from cut-off saws is the installation of an exhaust hood or shroud surrounding the blade.  The hood is connected by a flexible hose to an industrial vacuum cleaner.  Adjustable hoods, capable of accommodating different cutting depths, are best.

Jackhammers, when used to break up concrete pavement, can also cause workers to be exposed to hazardous dust containing RCS.  The most common method to abate this hazard is the use of a water-spray attachment.  A low-flow, water-spray control typically will reduce dust exposure by 70% to 90%.  So far as I have been able to find, there are no jackhammers that come supplied with water-spray units, and no commercially-available retrofit kits.  However, parts and instructions to build a water-spray control can be found online at http://www.cdc.gov/niosh/docs/wp-solutions/2008-127/.

“Tuckpointing,” if you didn’t know, is the art of finishing masonry joints with a find, pointed ridge of mortar for decorative purposes.  The grinder used for tuckpointing produces high concentrations of hazardous dust when used without dust controls.  The local exhaust ventilation dust control employs a shroud enclosing most of the grinding wheel, a length of 2” diameter flexible hose, and an industrial vacuum cleaner.  The vacuum cleaner should have a cyclonic pre-separator, to keep debris from reaching the final filters, and an air flow of 80 cubic feet per minute or more.  This will typically achieve a reduction in hazardous dust of between 80% and 95%.

While there are, to be sure, other common tools and tasks that generate hazardous dusts containing RCS, the last one I’ll mention here is the use of grinders to smooth poured concrete surfaces.  Without engineering controls, this activity can easily produce of 35 to 55 times the current NIOSH-recommended maximum exposure to RCS.

The control recommended for this application is conceptually similar to that used on the tuckpointing grinder:  a ventilation shroud, a length of flexible hose, and a portable electric vacuum cleaner, that acts as the fan and dust collector.  The vacuum cleaner should have a HEPA filter, a pre-filter or cyclone to increase the useful life of the HEPA filter, a motor drawing at least 10 amps (and a sufficient flow rate the capture the dust, and transport it to the vacuum source).

It’s desirable, too, that any vacuum device used in conjunction with grinding or other equipment have a filter replacement indicator, and the ability to clean and replace filters and full collection bowls or bags, without exposing the operator to dust.

It’s a safe bet that, when and as the proposed new OSHA standard for RCS becomes a final rule, OSHA inspectors will be highly attentive to enforcing the updated standard intended to reduce a long-recognized, serious hazard.  You should tailor your training and internal monitoring practices accordingly.

A recent case decided by the New York Appellate Division reminds us that, in addition to the federal OSH Act, and all of the related construction standards, New York’s Industrial Code remains in effect, and is an additional set of rules to be obeyed to ensure construction safety.

The case in question is Cerverizzo v. City of New York, et al. The plaintiff, employed by a subcontractor, was installing brackets in an empty aeration tank being upgraded at the Hunts Point Sewage Treatment Plant. The general contractor had an air monitoring subcontractor, but that sub’s reports did not show that the aeration tank was monitored for air quality for two weeks prior to the incident.  The plaintiff working in the tank became ill; had to be given oxygen for 12 hours; sustained injuries from oxygen depletion due to exposure to hydrogen sulfite gas; and was diagnosed with “hypoxic ischemic encephalopathy due to toxic inhalation.”  He sued the City and the general contractor, to recover for his injuries.

The plaintiff moved for partial summary judgment as to liability on claims based on common-law negligence, Labor Law § 200, and Labor Law § 241(6).  The latter section mandates that all areas in which construction, excavation, or demolition work is being performed be “constructed, shared, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places.”

In the trial court, the plaintiff’s motion for summary judgment on his § 241(6) cause of action was denied.  On appeal to the Appellate Division, however, the lower court’s order was modified, and that branch of the plaintiff’s summary judgment motion was granted.

The Appellate Division held that there was no issue but that the plaintiff had been permitted to work in the aeration tank without the air in the same having been monitored, in violation of the Industrial Code provision, 12 NYCRR 23-1.7(g), requiring such testing of any “unventilated confined area including but not limited to a sewer, pit, tank or chimney where dangerous air contaminants may be present or where there may not be sufficient oxygen to support life.”  The aeration tank, a large concrete structure used to aerate and clean sewage, was held to be an “unventilated confined area.”  The Appellate Division rejected the defendants’ argument that only an area having a restricted means of access (such as a trap door or a manhole) met the statutory definition.  Although the top of the aeration tank was open to the air, access was still restricted, as the plaintiff needed to use a 20-foot ladder to enter and exit the tank.

Labor Law § 241(6) authorizes the state’s Industrial Commissioner to make rules to give effect to its provisions, and requires owners and contractors and their agents for such work (except owners of one and two-family dwellings who contract for, but do not direct or control the work) to comply with those rules.

New York was a leader in enacting legislation to promote construction safety.  The Industrial Code was a forerunner to, and a model for, OSHA’s construction safety standards, and was enforced by Industrial Code inspectors, employed by the State Department of Labor.

After the OSH Act was enacted, there was reduced emphasis in New York on enforcing the Industrial Code, and in expanding and updating its construction standards.  However, the standards remain in effect.  There were a number of important court cases addressing the role of the Industrial Code and its standards in light of the passage of OSHA.  In Irwin v. St. Joseph’s Intercommunity Hospital (1997), the Appellate Division held that Congress did not intend to pre-empt Labor Law § 241(6).  Among other things, the OSH Act expressly disclaims the intent to enlarge or diminish the common law or statutory rights, duties or liabilities of employees and employers, regarding injuries, diseases or death arising out of or in the course of employment.

The OSH Act, it should be noted, is designed to prevent workplace injuries and illnesses.  It does not serve as a basis upon which an injured worker can recover damages for personal injury.  In contrast, as the New York Court of Appeals held in Allen v. Cloutier Constr. Corp. (1978), injured workers may recover money damages for injuries resulting from the breach of the non-delegable duty upon all contractors, owners and their agents to comply with the rules of the Industrial Commissioner when performing construction, excavation or demolition work.

In Rizzuto v. L. A. Wenger Contracting Co., Inc. (1998), the Court of Appeals held that the violation of an Industrial Code rule does not per se establish a statutory cause of action:  the violation in question must rise to the level of a negligent act.

In Ross v. Curtis-Palmer Hydro-Electric Co., the Court of Appeals held that Industrial Code provisions must be divided into two classes: those which mandate compliance with a specific positive command, and those which establish nothing more than a generalized requirement that owners and contractors act in an adequate, proper, or suitable manner, or provide (for example) “proper scaffolds,” devices as are “suitable” or “structurally safe,” or prohibit the use of equipment which is “not in good repair.”

Liability under Labor Law § 200(1) requires that the defendant have supervised or had control over the work.  To impose liability under § 241(6) for any act deemed to be contrary to good and accepted practices, or to fall below reasonable expectations, would make virtually every act of garden-variety negligence a § 241(6) violation, for which vicarious liability could be imposed, making § 200(1) all but superfluous.

Finding that that could not have been the legislative intent, the Court of Appeals held in Ross that only provisions of the Industrial Code mandating compliance with “concrete specifications” will support a cause of action under § 241(6) to recover for personal injuries.

Most, but not all, of the rules that can support a Labor Law § 241(6) claim are included in 12 NYCRR Part 23.  These days, certainly, OSHA’s standards are more comprehensive by far than those in the Industrial Code.  Nevertheless, your safety personnel need to be familiar with relevant Industrial Code provisions (see www.labor.state.ny.us/workerprotection/safetyhealth/sh23.shtm.  The same remain in effect, and potential liability for personal injuries resulting from a Labor Law § 241(6) violation may exceed by far the monetary penalties for most OSHA violations.

Recent decisions by the OSH Review Commission and the Eleventh Circuit Court of Appeals again bring up an issue that has been in dispute from time to time since the 1970s, but has eluded a single, nationwide resolution.

The issue is whether conduct that violates OSHA, when performed by a supervisor, of itself establishes the element of employer knowledge of the violation.

The issue is of interest on the merits, but looking at how the OSH Act procedurally provides for appeals from Administrative Law Judge (i.e., trial-level) decisions is somewhat exotic, and carries with it an important lesson for anyone contemplating such an appeal.

There are thirteen federal Circuit Courts of Appeals, of which one (the Court of Appeals for the Federal Circuit) hears appeals in cases based on certain statutes, not including OSHA.  The remaining twelve circuits are geographic, and the Courts of Appeals’ primary business is to hear appeals from decisions of U.S. District Courts, in the states comprising the circuit.  New York and Connecticut are parts of the Second Circuit; New Jersey is in the Third Circuit.

The U.S. District Courts do not conduct trials, however, where the Secretary of Labor cites an employer for violations of the OSH Act.  Those trials are before Administrative Law Judges (ALJs), employed by the OSH Review Commission.  An appeal from an ALJ decision can be initiated by the three-member OSH Review Commission, on its own motion.  If either of the employer or the Secretary wishes to take an appeal, a petition for discretionary review must be filed.  If the OSH Review Commission accepts and decides the appeal, a further appeal will be to a U.S. Court of Appeals.  If the OSH Review Commission declines to hear the appeal, the ALJ decision can then be appealed directly to a U.S. Court of Appeals.

Generally, in the federal system Court of Appeals decisions are binding precedent only within the Circuit in which the court in question sits.  Legal issues may be decided one way in one or more circuits, and directly to the contrary in others.  The desire to resolve differences among the Circuit Courts of Appeals is a factor considered by the U.S. Supreme Court in deciding whether to accept a case for further review by writ of certiorari.

Because of the economics — OSHA citations usually involve only modest monetary penalties — appeals in OSHA matters are relatively infrequent.  Because many appeals are decided by the OSH Review Commission, and not by a Court of Appeals, Commission decisions constitute a major body of legal precedent.  Both the ALJs and the Commission, however, in addressing purely legal issues under OSHA, strive to apply the law of the Circuit to which they would expect any further appeal to go.  If that Circuit has not spoken on the issue in question, the Commission will apply its own precedents.

An OSHA violation has four necessary elements, on which the Secretary has the burden of proof:  the applicability of the standard; nonconformance with the standard; employee exposure; and knowledge, actual or constructive, on the part of the employer.  It is settled law that, if a supervisor observes a violation by a rank-and-file employee, the supervisor’s knowledge of the infraction will be imputed to the employer, satisfying the “knowledge” element.

If the Secretary succeeds in making out a prima facie case, the employer may assert the affirmative defense of  “unpreventable employee misconduct,” but, by doing so, takes on the burden of proof to show, among other things, the sufficiency of its safety program.

Secretary v. Piedmont Mechanical, Inc. arose on a job site in Georgia (part of the Eleventh Circuit).  In that case, the employer was using a carry deck crane with a 40-foot boom to install pipe in a trench.  When the operator swung the boom to bring a pipe over the trench, the boom contacted a power line, and an employee in the trench was badly burned.  A multi-item citation was issued.  At trial, one item was dismissed, and another was downgraded from “Willful” to “Serious,” but the Secretary otherwise prevailed.

The Secretary appealed from the downgrading of the “Willful” item and, while that appeal was pending, the Eleventh Circuit Court of Appeals issued a decision in ComTran Group, Inc. v. U.S. Dept. of Labor.  In ComTran, the Eleventh Circuit joined the Third, Fourth, Fifth, and Tenth Circuits, in holding that a supervisor’s knowledge of his own misconduct will not be imputed to the employer, wherefore the Secretary does not carry his burden, and establish a prima facie case with respect to employer knowledge, merely by demonstrating that a supervisor engaged in misconduct. (The Second Circuit does not appear to have taken a firm position on this question, but has described the rule just described as one “grounded in fairness”).  Under the rule adopted in ComTran, knowledge must be established by showing the employer’s actual knowledge, or by constructive knowledge, based on the fact that the employer could, under the circumstances of the case, have foreseen the supervisor’s unsafe conduct.

The OSH Review Commission In Piedmont Mechanical remanded for further proceedings, in light of ComTran.

If you have taken an OSHA citation to trial, and lost, it matters greatly whether the basis for the decision was purely legal, or would have come out the same way, based on factual determinations by the ALJ.  Because the cost-to-benefit analysis of appealing OSHA citations is usually unfavorable to begin with, you should know that the standard of review of factual determinations by the ALJ is whether the same were supported by “substantial evidence,” a highly deferential standard.  Particular deference is given to the ALJ’s determinations of which witnesses testified truthfully, and which ones testified unreliably.

In short, if you’re contemplating a possible appeal to the OSH Review Commission, or the Court of Appeals, if the issues are largely fact-based, while I would “never say ‘never,’” your appellate prospects are, in all likelihood, poor.

Legal issues are reviewed independently, wherefore an appeal presenting only legal issues may deserve a closer look.

An important “practice pointer” in this respect is that you are not bound (as you would be in a commercial lawsuit decided in federal district court) to the Court of Appeals for the Circuit in which the alleged infraction occurred, or in which the ALJ conducted the trial.

An appeal from a final OSH Review Commission Order can be taken to any of as many as three Circuit Courts of Appeals:  (1) the one in which the alleged infraction occurred; (2) the one in which the employer’s primary place of business is located; and (3) the Court of Appeals for the District of Columbia Circuit.

If you get an unfavorable outcome after the OSH Review Commission hears your appeal, or if it declines to grant a discretionary review of an unfavorable ALJ decision (which makes the latter the equivalent of a final order of the Commission) and you have any thought of an appeal to a Court of Appeals, you need to act promptly.  Your attorney needs to evaluate the strength of all legal issues presented, and in doing so to identify which Circuits would be permissible ones for your appeal, and to research whether the law of one Circuit or another to which the appeal might be taken is more favorable.

Thomas H. Welby is the managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains.  Geoffrey S. Pope, counsel to the firm, collaborates in the preparation of this series.  Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

As lawyers to the construction industry, our firm counsels clients in how to prevent OSHA violations; how to negotiate with OSHA when citations occur; and, occasionally, in contesting citations and associated penalties.

Many articles in this series address nuts-and-bolts issues of OSHA compliance, and others are intended to acquaint readers with how things work procedurally, so that they will be familiar with inspection, citation, and contest procedures sufficiently to protect their rights.

It’s important, certainly, to try to avoid OSHA citations.  When they do occur, you’re entitled to insist on the rules being followed, and to contest a citation, if it lacks a proper legal and/or factual basis.

It’s important, however, not to become obsessive about OSHA citations.  Construction work is inherently dangerous.  The construction sector accounts for the single largest component of workplace fatalities in the U.S. each year, and the fatal injury rate for construction is fourth among industry sectors (agriculture, forestry, fishing and hunting has the highest rate, followed by the mining, quarrying and oil and gas extraction sector, the transportation and warehousing sector, and construction).

Construction injuries cannot be reduced to zero.  If you stay in business, you will be inspected by OSHA, and issued a citation every now and then, however hard you work at compliance and safety.  In other words, this is an issue you must grapple with, so long as you remain in business, but will never fully resolve.

Your primary objective, then, as the owner of a construction business, is to make your reasonable best efforts to get every one of your employees to comply with OSHA regulations applicable to your trade, and other safety laws and regulations.  If you do that, there’s a strong likelihood that the number of injuries among your employees, and the number of OSHA citations you receive, will be as low as you can hope for them to be.

And, while, of course, there are costs involved, citations can feel like a nuisance and OSHA, like every government agency I’m acquainted with, is occasionally guilty of arbitrary behavior, OSHA shares the credit for very substantial reductions in workplace mayhem over its 43-year history.  In the bad old days, prior to the enactment of the OSH Act, nationwide more than 14,000 American workers died from workplace injuries annually, nearly 2.5 million were disabled, new cases of occupational diseases were estimated at about 300,000 a year, and ten times more  man-days were lost to job disabilities than to strikes.

In recent years — employment nationwide having almost doubled since 1970 — fatalities have dropped into the low 4000s annually, and injury rates have been reduced on the order of two-thirds.

While not grounds for complacency, these results are also to the credit of employers — who, for the most part, have made appreciable efforts to comply with OSHA, train their workers, and operate their businesses safely.

Studies show that, overall, larger construction employers have better safety results than smaller ones, GCs do better than trade contractors, and union shops are safer than non-union shops.  Such results seem only reasonable, as GCs, by law, have greater responsibility for site safety, and larger companies are more likely to have full-time safety personnel, and greater resources to devote to health and safety concerns.

If yours is a smaller company, or one lacking dedicated safety employees, there are things you can do — things you need to do — to compensate, and to fight the good fight against safety hazards.  One thing small companies are doing well, studies show, is that they typically achieve a high degree of participation among employees in safety efforts.

Whatever the size of your company, you need to approach safety both from the bottom up, and the top down.

“From the bottom up” means that every field employee should be actively encouraged to share responsibility for their own and others’ safety on the job, to discourage one another from violating safety policies, and to report perceived dangers to their supervisors

“From the top down” means that management, including senior management, must exercise active leadership in this area.

From time to time, in representing clients concerning OSHA and other safety issues, we have detected a “disconnect” between what company management tells us they want from their field supervisors in stressing safety rules, and what the supervisors think management wants.

I recall, in particular, one meeting in the wake of an occurrence in which a worker had neglected to fasten his lanyard, and suffered grave injuries in a fall.  Everyone was shaken up by this accident, and management was more concerned with ensuring it not be repeated, than they were with possible repercussions from the accident itself.

In a meeting at which both management and the company’s field supervisors were present, the supervisors piously stated that they knew company policy required everyone to tie off 100% of the time when working on elevated surfaces, and that they strictly enforced that policy.

Later that same day, however, when the bosses were not in the room, one of the same supervisors confided that the policy was spottily enforced, except where activities were going on close to the edge of an elevated surface, and that both the supervisors and the rank-and-file believed that “strict enforcement” was something to be spoken of mostly when OSHA inspectors were present.  What they believed management really wanted was on-time performance, with safety concerns taking a “back seat,” anytime the two might be in conflict.

To avoid that kind of disconnect, ranking management personnel need to be at least somewhat “hands on” about employee safety, even if you don’t have the luxury of a full-time safety director.  You need to meet with field supervisors from time to time, and to assure them that the company’s commitment to safety is genuine.  When significant injuries occur, you need to take an interest, not just in supporting the injured employee and his or her family, but in making sure that steps are taken to determine how and why the accident occurred, where responsibility lies, and what needs to be done to minimize the likelihood of a recurrence.

Safety issues should also be a frequent element of your communications with your field supervisors, both general and job-specific.  While the OSH Act imposes considerable training responsibilities on employers to instruct the rank-and-file in all applicable OSHA standards, as a practical matter avoiding deaths and serious injuries necessitates considerable reliance on your field supervisors to know, and to enforce, the most critical standards which correspond to the largest numbers of fatalities and serious injuries on construction sites.  Those are:  fall hazards, excavation cave-ins, struck-by injuries, and electrocutions.

Quite simply, there should never arise a doubt in any of your supervisors’ minds, when they observe a worker who is not tied off, or who is entering an unshored trench to work even “for just a few minutes,” that such conduct is unacceptable to the people who own the company.  Poor safety practices are not just wrong, they’re bad for business, too.

Smaller companies that enjoy good safety records accomplish that by leadership, and by striving to involve every employee in identifying and abating hazards, and in making sure that the rules (especially those concerning the primary hazards relevant to your trade) are known, and obeyed pretty much all of the time.  If you’re one of the people in charge of the company, you have a critical role to play.

In addition to its many specific standards for employee safety and health, OSHA also has what’s known as its “General Duty Clause.”  It’s often described as a “catch-all,” covering any and all unsafe conditions for which there is no specific standard.  It’s not quite that expansive, but you should be aware of it, and its elements.

The recent decision in Secretary v. Jesse Remodeling, LLC illustrates both the requisites for a violation of the General Duty Clause, and for a “Willful” OSHA violation.  In that case, a masonry contractor was erecting a brick and block foundation for a fast-food restaurant in Savannah.  OSHA’s Assistant Area Director, who was buying lunch at a restaurant across the street, observed employees on a scaffold platform lacking a guardrail system at its open sides.  He summoned a Compliance Officer by telephone, who came to the site and initiated an inspection.

In addition to several scaffolding and fall hazard violations, the Compliance Officer observed employees on the scaffold platform pouring concrete from a “Grout Hog” into cells in the block wall.  The Grout Hog was being lifted above the platform by a forklift operated by Jesse Gamble, the employer’s principal and “competent person.”  The Compliance Officer observed that the forklift lacked skid pins to secure the Grout Hog on the forks, and that Mr. Gamble was not wearing a seatbelt.

The CO also observed that the scaffold platform, 13 feet above ground, lacked guardrails at its open sides and ends.  As employees on the platform were filling the cells with concrete, two employees, standing on the scaffold’s cross-braces about seven feet above the ground, were cleaning concrete droppings from the wall below the platform.  After the filling of the cells was complete, the CO saw the employees climb down from the scaffold using the cross-braces and uprights.

According to Mr. Gamble, his employees had started to dismantle the scaffold on the back wall when a truck, delivering an additional supply of concrete, arrived, enabling the crew to fill the cells in four blocks that remained to be filled. Mr. Gamble testified that, as the “competent person,” he instructed the employees to fill the cells from the platform, while he elevated the Grout Hog using the forklift.  The requirements to have a guardrail system on a scaffold do not apply, while the scaffold is in the process of being dismantled.  Mr. Gamble claimed that, in his opinion, there was a greater risk of falling while re-installing the guardrails than while filling the cells, which he estimated would only take about fifteen minutes.

OSHA’s Area Office issued a five-item citation, with three “Serious” items and one “Willful” item (no guardrail system on the scaffold platform).  The Grout Hog violation was charged under the General Duty Clause.

  The employer contested the violations and penalties, its primary arguments being that the scaffold requirements did not apply, because the scaffold was in the process of being dismantled; that the skid pins were inadequate to secure the Grout Hog to the forklift; and that Mr. Gamble’s skill, in maneuvering forklift, was adequate to prevent the Grout Hog from slipping off the forks.  Following trial, the Administrative Law Judge vacated the seatbelt violation item, but affirmed all of the rest (and related penalties).

A violation of OSHA’S General Duty Clause has four elements (in addition to employee exposure, and actual or constructive knowledge on the part of the employer).  The first is a “hazard,” defined as conditions or practices deemed unsafe, over which an employer can reasonably be expected to exercise control.  The second is that the hazard be “recognized,” that is, known to the particular employer, or generally known in the industry.  The third is that the hazard be likely to cause serious injury or death.  The fourth is that the Secretary must identify a means of abatement, sufficient to eliminate, or materially reduce, the hazard.

The employer’s use of the Grout Hog without skid pins was easily found to constitute a “hazard.”  The Grout Hog weighs 1,436 lbs. empty, and up to 4,526 lbs. loaded.  The skid pins are provided by the manufacturer, and attached to the Grout Hog, to prevent it from sliding off the forks, injuring employees, and damaging equipment.  Elevated above a scaffold platform, clearly the Grout Hog, if it slipped off the forks, would expose the employees working on the platform to struck-by, crushed-by, and fall hazards.

That the hazard here was “recognized,” the ALJ found, was plain from the warning label on the Grout Hog’s fork pockets, and instructions in the manual always to use skid pins and linch pins or safety chains, whenever the Grout Hog is on the lift forks.  The likelihood of causing serious injury or death was obvious as well, as the Grout Hog, as used by Jesse Remodeling, was estimated to weigh between 3,000 and 4,000 lbs., and presented a clear danger, were it to slip off the forks, of causing serious injury or death.

The final element — the feasibility of abatement — was made out by showing that, the installation of the Grout Hog on the forklift using skid pins or chains, in accordance with the manufacturer’s instructions, would eliminate or reduce the danger of it slipping off the forklift.

The statement of the employer’s principal, Jesse Gamble, acknowledged that he knew the skid pins provided to secure the Grout Hog on the forklift were not in use, although he attributed this to an “oversight.” The ALJ was not convinced by Mr. Gamble’s argument that his skill in maneuvering the forklift mitigated the risk of the Grout Hog slipping off.  The General Duty Clause violation, and the accompanying penalty, were therefore affirmed.

The ALJ did vacate the seatbelt violation, essentially because it was charged under the wrong standard.  The two items for working from, and descending by use of, the scaffold’s cross-braces, were affirmed.  The employer argued unsuccessfully that there was no violation, because the exception where employees are erecting or dismantling the scaffold applies only where the employees are “solely” performing one of those tasks.  Jesse Remodeling’s employees apparently had started to dismantle the scaffold, but interrupted that effort, and went up to pour more concrete, when the concrete truck arrived.  In addition, employees were at work cleaning dripped concrete from the walls.  In affirming the item for descending from the platform using the cross-braces, the ALJ noted that there was a ladder on the scaffold, but the employees had not used it.

Finally — and most importantly, from the viewpoint of the employer — the lack of a guardrail system was found to be a “Willful” violation.  The “dismantling” exception was found, from testimony and photographs, not to apply.  Mr. Gamble acknowledged that the guardrail could have been re-installed before filling the last four cells, and indeed that he had instructed his employees, upon the arrival of the concrete truck, to go back up and fill the remaining cells.  Gamble had been a masonry contractor for 26 years, and a “competent person” for 15 years.  His company had previously been cited for a similar violation, and had unsuccessfully asserted the “dismantling” exception in contesting that violation.

An employee (himself an OSHA “competent person”) testified that “the scaffold wasn’t ready for filling grout . . . [Gamble] knew that the scaffold wasn’t complete but he told me to do it anyway . . . even though we didn’t have the scaffold properly erected.”  The ALJ found that Gamble, concededly with knowledge of the guardrail requirements, had simply elected to ignore them.  This, the ALJ found met the “willfulness” standard of showing an “intentional, knowing or voluntary disregard for the requirements of the Act, or . . . plain indifference to employee safety.”

There’s good news and bad news from recent studies of construction-industry fatalities from 2006 through 2011.  The bad news is that, while annual fatalities have dropped by almost half, that drop corresponds almost exactly to reduced levels of construction activity nationwide.  The good news is that, despite difficult economic conditions, most construction employers are maintaining — and many are increasing — their commitment to employee safety.

Construction remains highly dangerous, and much remains to be done in enlightening industry players concerning the benefits of having a comprehensive safety program, integrated with virtually all aspects of the employer’s business.  In addition, however, to a continued commitment by most employers, and increasing sophistication in addressing safety concerns (more evident in larger companies) there are trends in play that offer some promise of improved safety performance.  Among these trends are the increased use of BIM (building information modeling) software; collaborative design, which involves general contractors and, in some cases, subcontractors, in project design; and the proliferation of Smartphones, tablets, and other mobile devices on jobsites.  An additional trend, reported as reducing jobsite injuries, is the increased use of prefabrication and modularization.  Yet another major trend, whose implications for safety have yet to be fully evaluated, is the growing use of new and unfamiliar processes and technologies, to achieve “green” project goals.

Studies show substantial differences in safety practices as between general contractors and specialty or trade contractors, and as between larger companies and smaller companies.  General contractors, and larger companies, are markedly more likely than specialty contractors, and smaller companies, to employ most of what are seen as best safety practices on construction projects.  While there is, of course, a rough correspondence between the categories of “larger companies” and “general contractors,” as GCs tend to be larger than specialty contractors, trades that must work closely with other trades (erection, mechanical, electrical) tend to behave somewhat more like general contractors with regard to safety matters, regardless of size.

The explanation, of course, is that GCs and larger firms have more resources than most specialty and smaller contractors, and GCs, especially, have a higher degree of legal responsibility, under OSHA and most states’ laws, as they have overall control over, and responsibility for, the jobsite.

While it is probably unreasonable to expect that specialty contractors will match the full range of safety practices increasingly seen in large companies, the proverbial carrot and stick will, I suspect, result in increased efforts by such companies in the coming years.

The “stick” is that owners, insurers, general contractors, and construction managers are all seeking improved safety performance.  Pressures are being exerted — and will probably increase — to require greater selectivity in choosing subcontractors.  Specialty contractors with bad accident (or OSHA) histories are already finding it harder to get work, on both public and private projects.  In the near future, they will likely be required to show not only acceptably low numbers of reportable injuries and OSHA violations, but affirmative efforts to implement practices now more common among larger companies.

Improving specialty contractors’ efforts will not necessarily be unduly painful or costly.  For one thing, certain practices in which specialty contractors lag far behind general contractors don’t cost a lot of money to implement:  it’s largely a matter of education and leadership.  One such practice is the so-called “open-door” policy, in which all employees are actively encouraged to report unsafe conditions not just to immediate supervisors, but to senior management.  Another is the conduct of meaningful incident and “near-miss” investigations.

Another reason to think that smaller companies’ safety efforts can more nearly approach those of larger companies is that the smaller companies, and specialty contractors, are already doing a number of things well, and those practices, and the positive attitudes underlying them, can be built upon without undue effort.  To give just one example, although budgetary reasons make it impracticable for many smaller companies to employ full-time safety personnel, employees in small companies often take on a wider range of roles.  Often, the rank-and-file in smaller companies are more involved in the safety management process than in larger ones.  Thus, while full-time, specialized safety employees are desirable, many smaller companies, unable to afford them, instead get more of their workers actively involved with safety management and planning.

An additional trend that mitigates smaller companies’ and specialty contractors’ disadvantages and shortcomings in the safety realm is the expanded use of Site-Specific Health and Safety Plans (HASPs).  A site-specific HASP is a comprehensive written plan, created as part of the design process, usually (and desirably) with substantial input from the general contractor and the primary trades.  It’s a practice that originated, some years back, for projects that included known or suspected hazardous waste activities.  OSHA mandates a HASP on such projects, and has standards for the training and qualifications of persons carrying out hazardous waste activities.

A site-specific HASP is a powerful tool for identifying project-specific hazards, and communicating and coordinating how they are to be addressed throughout the course of a project.  While it’s still optional on most projects, in recent years a number of government entities (e.g., the Port Authority of N.Y. and N.J., the U.S. Department of Energy, and the U.S. Army Corps of Engineers) have come to require them on all significant projects.  A benefit of the expansion of the practice is that seldom must a site-specific HASP be devised “from scratch.”  Instead, the owner, design professionals, general contractor, major trades, and safety consultants (the latter to include, in more complex cases, a Certified Industrial Hygienist or Certified Safety Professional) begin work from a template, and tailor it to the specific needs of the project.

Although the defining characteristic of a site-specific HASP is that it varies according to the nature and peculiar characteristics of the project, virtually all plans have detailed information concerning the identification, prevention or control of hazards, safety and health training, and how the effectiveness of the HASP is to be evaluated.

One recent survey of more than 250 contractors revealed that, among the safety practices found to be most effective in increasing project safety, both general contractors and specialty contractors agree that the use of a site-specific HASP ranks as #1.  Roughly three-quarters of the larger companies surveyed, and more than three-fifths of the smaller companies, are using them on at least some of their projects.

Among the many benefits of a site-specific HASP is that, since usually safety professionals, industrial hygienists and engineers will be involved in its preparation, both those subcontractors (if any) as are directly involved in preparing it, and those who are not, will have the benefit of knowledgeable analysis, and advance warning, of hazards requiring an added degree of attention and, possibly, special precautions on the project to be performed.  This compensates, in part at least, for the fact that many trades are less likely than the general contractor to have full-time safety personnel, or one or more such personnel (if they employ any) devoted solely to that project.

There are a number of sources of “templates” for the site-specific HASP, one of which is OSHA:   (www.osha.gov/dep/etools/ehasp).

The quality and effectiveness of a site-specific HASP can only be enhanced by developing it in tandem with a thorough analysis of potential safety hazards during pre-construction, and with the participation of key trades (erection, electrical, mechanical and possibly others) in addition to the general contractor.  Care in organizing and editing the document, with an eye to making it useful by the use of appropriate headings and clear language, will also increase its value.  Another idea worth considering is having it online (in whole or in part) and at all times available via Smartphone, tablet, or other type of electronic device, as are presently burgeoning on construction jobsites.  One can imagine circumstances in which having, for example, emergency response information available to everyone on site with a Smartphone, and not just posted at a single location, could make a life-or-death difference.

General contractors on projects adopting site-specific HASPs should be in touch with their area OSHA office, as OSHA offers special advantages to companies that employ this tool, and maintain injury and illness rates below BLS averages.

A recent ALJ decision demonstrates that, while a construction manager may, as a "controlling employer," be responsible for an OSHA violation by a subcontractor, the extent of the measures a controlling employer must implement, to satisfy the duty of reasonable care, is less than what is required of an employer with respect to protecting its own employees. Because the hazard in question was found to be outside the range of what could normally and reasonably be anticipated, the requisite of actual or constructive knowledge was negated, and the citation against the construction manager was vacated.

In Secretary v. Manhattan Construction ("Manhattan") was acting as construction manager on a resort expansion project. Two employees of E.C. Concrete ("ECC"), Manhattan's concrete subcontractor, were injured while entering a building under construction, when a half-dozen shoring beams fell from atop a scaffold on the seventh floor to ground level. An ECC crew on the seventh floor had used a crane to place the beams on top of a shoring scaffold, which tipped over when the crane's hoist chains became entangled with the scaffold's cross-brace.

Both Manhattan and ECC were issued "Serious" OSHA citations. Manhattan was alleged to have failed to use barricades to protect its subcontractor's employees from falling objects during overhead concrete work. It was not disputed that the first-floor entry being accessed by the ECC employees was not barricaded; that the guardrail system along the perimeter of the seventh floor had been removed; and that there was no canopy structure to protect persons in the entryway area from being struck by falling objects.

On the day of the occurrence, an ECC crew on the seventh floor was constructing a shoring system, to support the concrete pour for the roof. The tables supporting the seventh floor were still in place, and extended 3-4 feet beyond the concrete floor. The rented shoring system used by ECC was constructed in accordance with specifications provided by a consulting engineer. ECC had assembled and placed shoring scaffolds parallel to and approximately 6 feet from the floor perimeter. Each shoring scaffold weighed approximately 400 lbs., and was about 4 feet wide by 7 feet long, with four 10' vertical legs and cross-braces.

The ECC crew had used a crane located on the ground to hoist a half-dozen 17' long, aluminum beams, and place them on top of one of the shoring scaffolds. Each beam weighed about 60 lbs.

After the lift had been completed, the crane's hoisting chains became entangled with the scaffold's cross-brace, causing the scaffold to be lifted off the floor, and tip over onto the floor's perimeter. The scaffold did not fall off the floor, but rested precariously on the perimeter, extending over the edge. However, the 60-lb. aluminum beams did fall, injuring the two ECC workers below.

The construction manager contested the citation and penalties. At the trial, Manhattan argued that the Secretary had failed to show that Manhattan knew the employees on the ground were exposed to falling objects, because the accident was "unforeseen and freakish." Manhattan also asserted the "multi-employer work site defense," claiming that, as the construction manager, it did not create or control the alleged unsafe condition, and had no employees exposed to the condition.

Under the standard cited, when employees are exposed to falling objects, the employer must have all of them wear hard hats, and implement one of three additional measures. Since there were no toeboards, screens or guardrails, and no canopy structure, the employer was required to barricade the area to which objects could fall, prevent employees from entering the barricaded area, and keep objects that might fall a sufficient distance from the edge of the higher level, so that they would not go over the edge if accidentally displaced. OSHA's Safety Engineer testified that the hazard of falling objects resulted from the subcontractor's placement of the 10' high shoring scaffold just 5'8" from the concrete perimeter of the seventh floor.

In support of its multi-employer worksite defense, Manhattan strove to distinguish its role on the project as construction manager from that of a general contractor, and to push all responsibility off onto ECC, based on ECC's having agreed, in its contract, to ensure compliance with applicable safety standards.

The ALJ agreed that Manhattan was not responsible for performing the concrete work, or the shoring system, and had not placed the beams on the shoring scaffolds, or created an unsafe condition. The ALJ acknowledged, too, that there was no evidence that Manhattan's own employees had been exposed to the hazard of falling objects. (This last finding, in my estimation, was somewhat dubious, as Manhattan's personnel were always on site, and had access to the entry area into which the beams fell).

The ALJ found, nevertheless, that, its protestations notwithstanding, Manhatttan was a "controlling employer," and thus potentially responsible for the violation, even though it did not create the condition, and no employees of its own were exposed.

The ALJ credited ECC's superintendent's testimony that Manhattan had the authority to stop ECC's work, correct unsafe practices, and choose access points. Manhattan, the super testified, had "somewhat" directed ECC's work. Someone from Manhattan was on site at all times, ECC considered Manhattan to be no different from a general contractor, and ECC's contract was with Manhattan.

During the inspection that followed the accident, Manhattan agreed it was in control of the project, could correct hazards, and could stop the work of a contractor if it saw an unsafe condition. Although ECC was contractually responsible for safety, the ALJ found, Manhattan was not relieved of its responsibility to ensure a safe workplace: an employer cannot contract away its OSHA duties. Manhattan's designation as "construction manager" did not negate Manhattan's control over the subcontractors and the project. The ALJ found that Manhattan had the same degree over the project as a general contractor would have.

The ALJ found Manhattan to be a "controlling employer," and that the elements of the application of the cited standard, noncompliance, and employee exposure had all been proved. The ALJ nevertheless vacated the citation, and assessed no penalties. The ALJ rejected the Secretary's argument that ECC's actions, in placing the beams on the scaffold, and the scaffold so close to the perimeter, were open and obvious, wherefore Manhattan, with reasonable diligence, ought to have discovered them, and recognized them as hazards.

The standard cited, the ALJ found, required the Secretary to show, as a predicate to requiring abatement such as barricading, that "an employee is exposed to falling objects." That determination requires consideration of the nature of the object, and the distance of the object from the perimeter.

The scaffold, the ALJ reasoned, could not reasonably have been expected to tip over and pose a falling object hazard. It weighed more than 400 lbs., was stable, and located almost 6' from the perimeter.

The ALJ noted that the same OSHA engineer who did the post-accident inspection, and recommended the citation, had performed a second inspection about 5 weeks previously. Despite having observed ECC's shoring system under similar conditions, he had not identified any problems, or recommended a citation. But for the accident, he admitted, he would not have recommended a citation at the time of his later inspection.

The ALJ found persuasive testimony by an engineering expert that, under foreseeable conditions, there was no employee exposure to a hazard of falling objects posed by ECC's shoring system. Even assuming displacement of the beams atop the scaffold, he opined, the beams ought to have fallen not more than 18" from the base of the scaffold. This engineer had never designed a shoring system where he anticipated a crane picking up a scaffold, or beams on top of the scaffold being displaced.

In sum, the ALJ agreed with Manhattan that the accident was freakish: none of the Manhattan and ECC employees, with long careers in the industry, had ever experienced, heard of, or seen a similar accident.

The construction manager, the ALJ concluded in vacating the citation, could be charged with constructive knowledge of only such hazards as could normally and reasonably have been expected, based on knowledge, experience and expertise of the work being performed.