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Safety Policy: When Cute Doesn’t Cut It: Passing on Hopeless Contests to OSHA Citations

Written by Thomas H. Welby on . Posted in Safety Policy.

Our law firm represents construction-industry employers cited for alleged OSHA violations. From time to time, we have represented clients in citation contests. We understand — and OSHA and the Administrative Law Judges do, too — that there’s nothing wrong with an employer asserting substantive or procedural defenses to OSHA citations. On occasion, I admit, I have detected what I believed to be a discreet tilt in favor of crediting the testimony of Compliance Officers over employee representatives. Generally, however, the ALJs are highly knowledgeable on the law, and quite willing to vacate citations where a valid defense has been shown, or the Secretary has failed to establish elements of the violation.

From time to time, in reading ALJ decisions as part of writing articles for this series, I find myself amazed that employers, not infrequently, take citation contests through trial, based on very poorly-supported defenses.

OSHA citations, as you know, can have adverse consequences that can dwarf what, usually, are modest monetary penalties. If an employer has multiple “Serious” (or “Repeat” or “Willful”) violations within a three or five-year period, it may be debarred from bidding on, or being awarded, public contracts in some jurisdictions (notably, the City of New York). Increasingly, construction managers in private contracting are also avoiding contractors with multiple OSHA violations (which information can easily be found online).

However, it’s always important to keep in mind that, “if you’re going places, you’re going to get some mud on your boots.” In other words, the construction industry is hazardous, and rightly receives added attention from OSHA. If your construction company grows, or even stays in business in these economic times, you will be inspected. And, even your best efforts notwithstanding, you’re almost certain to get a citation every now and then.

It follows that your current OSHA citation is not a once-in-a-lifetime event, but one incident in a relationship with your Area Office that you hope will be long-lasting. Unless your company’s record is so wretched that your latest citation threatens to be that straw on the camel’s back that puts you out of business, your #1 priority should be to avoid harm to your employees, but your #2 priority should be to impress the Area Office that health and safety are matters you take seriously. If your company’s record is not very good, you need to “get religion,” and OSHA likes a repentant sinner better than the other kind.

It’s obvious, too, that engaging private counsel to take a citation contest to trial, and possibly beyond, is expensive, usually disproportionately so, where the monetary penalties involved are only a few thousand dollars. The Department of Labor’s Solicitor’s Office engages able attorneys, paid from public funds, who do nothing other than OSHA work. There are relatively few lawyers handling OSHA contests from the employer’s side, and the economics are such that I’ve never seen, and don’t expect to see, any who do that work more than occasionally.

Accordingly, even where the employer has a litigable defense, it’s often better off trying to negotiate a downward adjustment in any penalties, and/or a reduction in the number and classification of citation items. Money that might be spent in litigation will often be more wisely invested in added safety training or equipment.

In the case of Secretary v. Absolute Roofing & Construction, Inc., two Compliance Officers were driving past a church in a Cleveland suburb. Looking up, they saw a lone worker performing roof repairs, removing and reinstalling clay tile and replacing the copper valley, on the church’s steep-pitched roof. The CO’s announced their presence, and that they intended to inspect the site. The worker, the only one onsite at the time, identified himself as Michael Koran, and that his employer was Absolute Roofing (“Roofing”), an entity owned by Michael Kamis. The eaves of the roof Koran was working on were more than 13 feet above grade, and Koran was working without any fall protection.

While walking around the building after their first exchange with Mr. Koran, the CO’s saw a man with a truck displaying a “Roofing” logo come onto the site, and leave almost immediately. Later, they learned that this was a Roofing employee who, in response to a phone call from Koran, had rushed to the site to drop off a harness.

Roofing was cited for one “Serious” and two “Repeat” violations: the scaffold used by Koran did not rest on base plates or other firm foundation, and was not sturdy enough to bear without failure the intended load, were Koran to fall onto it. The third item, of course, was the failure to use fall protection.

While the total proposed penalties added to a not-insignificant sum exceeding $21,000, I think it was a mistake that Roofing took all of the citation items through trial, mounting a barrage of insubstantial defenses that Koran was not an employee, and that the company performing the roof repair was not Roofing, but a related entity, Absolute Exteriors (“Exteriors”).

The discrepancies in the respondent’s story take up several pages of the ALJ’s decision, and on the whole were almost comical. Just to give you a taste, the co-owner of Roofing, Michael Kamis, gave the CO’s a tax I.D. number for Absolute that corresponded to that from a prior inspection, in which the employer identified itself as “Absolute Exteriors d/b/a Absolute Roofing and Construction.” While the citations before the ALJ had been issued to Roofing, the Notice of Contest was on Exteriors’ letterhead, and stated that it was Exteriors that was contesting the citation.

There was evidence that Exterior had engaged and paid Koran. While there was no corroborative writing, Kamis testified that the church had hired Exteriors to perform the roof repair. These niceties, the ALJ found, were beside the point both because Roofing and Exteriors could be deemed a single entity for purposes of the OSHA citation, and because Roofing would, in all events, be deemed to have been Koran’s employer. OSHA uses an “economic realities” test, which considers who pays the employees, who directs and controls the employees; who provides safety training and instructions, and who the employees consider to be their employer. Analyzing these factors, the ALJ concluded that overall, Koran was an employee of Roofing.

The ALJ also analyzed the facts with reference to the so-called Darden test, which focuses on, among other things:

[T]he skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

While finding that the totality of the Darden factors pointed to Koran being an employee of Roofing, the ALJ placed “great weight” on both Koran’s statement to the COs that Roofing was his employer, and Kamis’ admission that the company at the site was Roofing.

The citations and penalties were upheld as proposed. In considering the facts, this employer admitted it provided no safety training, but had fall protection close enough that it was able to speed over a harness for Koran’s use within a few minutes of the COs’ arrival. Looking at the effort expended in concocting an almost laughable defense, I think that Roofing, its relationship with OSHA, and the safety of its workers would be better have been served, by having the harnesses directly at hand, and in training the employees in fall protection and the use of the equipment.

Safety Policy: The Meaning “Employee Exposure” Under OSHA

Written by Thomas H. Welby on . Posted in Safety Policy.


 Construction sites, certainly any but the smallest projects, pose unique problems in safety management, due to the fluidity of activities, as sequential tasks are undertaken, carried out, and completed; and the multiplicity of trades, with companies and their employees coming and going.  In the course of the typical multi-employer project, “zones of danger,” or places on or about the site where activities and/or conditions present hazards to employee safety or health, are rarely static for any length of time, but are constantly being created, and ceasing to exist, as the project progresses.

Often, areas in which hazards have existed, but in which appropriate counter-measures have been taken to comply with OSHA and minimize risks to employees, are not sufficiently attended to, as work being done there comes to a conclusion.  For any of a number of reasons, employers may take it for granted that experienced construction professionals will know to stay clear of such zones, during the interim from the completion of the primary work being done there, until such time as any left-over hazards are resolved.  Trades are naturally disinclined, also, for economic and other reasons, to see the correction of left-over hazards, or indeed any hazards of other trades’ creation, as being their responsibility.  Trades whose employees will not be assigned to work in the immediate area in which left-over, or other hazards created by others, may be present often assume that those hazards are “not my problem.”  A much sounder approach is along the lines of “if you see something, say something,” as responsibility for employee safety, although foremostly the responsibility of the general contractor, remains a shared responsibility.

A common failure, also, is that employers often underestimate hazards presented by conditions affecting areas in which employees are not required or expected (or even authorized) to be present, but which are not blocked off, and therefore remain accessible.

This issue came up in a recent case decided by an OSH Review Commission Administrative Law Judge, Secretary v. Performance Contracting, Inc. In that case, the employer, subcontractor PCI, was doing framing work on the inside of a casino building in Oregon.  PCI was also working from scaffolds, to install insulation panels on the exterior of the building’s west side.  The scaffold on the west side of the building had just been released to PCI by the subcontractor that had erected it, and had been inspected by a PCI employee.

During an OSHA inspection, the Compliance Officer, and several persons accompanying him on his walkaround of the jobsite, observed the scaffolding work being done in the northeast corner of the building.  Then, the Compliance Officer and his companions exited the building through an opening in the west side of the building.  After going through the opening, the group walked underneath the scaffolding that had been erected along the west side of the building.  In doing so, they went through a space underneath the scaffold’s planking, which was between the cross-bracing of the two abutting scaffolding sections.  This space was about 24 inches wide.  Additionally, there was an open area overhead, formed by a 12″ gap between the interior edge of the scaffolding, and the exterior wall of the building.

A safety engineer who had accompanied the Compliance Office on his walkaround estimated that it had taken only about one second for the group to pass through the unprotected area.  The inspection group went through the opening only once.  A project manager for the employer’s parent company testified that the opening was not one of the three “designated” access points approved by the general contractor.  He testified, further, that he had been regularly on the jobsite, and had never observed anyone walk through the opening on any other occasion.

Climbing up onto the west side scaffolding, the C.O. observed that there were insulation panels, tools and buckets of adhesive at various places on the platform, and that the interior side of the scaffolding, to the north of the opening described above, had no toe boards.  Since there was a 12″ gap between the unprotected interior edge of the scaffold platform, and the external wall of the building, foreseeably materials on the platform could fall through that gap to the ground below, posing a danger to anyone who might be on the ground close to the building.

PCI was cited for a “Serious” OSHA violation in the alternative.  That is, it was charged with violating OSHA, in that it failed to do at least one of (1) erecting a barricade to prohibit entry into the area beneath that section of the scaffolding not equipped with interior-edge toe boards; or (2) erecting toe boards along the interior edge, to prevent objects from falling from the platform to the ground below.

PCI contested the citation.  It did not contest the absence of a barricade and interior-edge toeboards. It argued, instead, that there was no hazard, because (1) materials were not stored or stacked on the scaffold above the unprotected area (beneath which the C.O. and others had briefly passed); and (2) because that opening was not an approved access point, no one had been seen to use it as such, and no employees were observed working or standing in the unprotected area between the scaffold and the building.

As for the toeboards, the employer argued that the work to be done on the exterior walls beneath the 12″ gap (the application of stone work to the lower half of the building) was not in progress, and was not to begin until after the scaffolding had been removed.

Although it was not expressly stated as such, essentially PCI’s argument was that one element indispensable to any OSHA – employee access — had been only de minimis, or too trifling to sustain a violation.

The Administrative Law Judge, however, sustained the violation.  He did downgrade it from “Serious” to “Other than Serious,” chiefly as buckets used for adhesive were too large to fall through a 12″ gap, and the small likelihood that employees wearing hard hats would have sustained a serious injury from smaller items such as rollers, mesh, spatulas and hawks.

The ALJ was unpersuaded by PCI’s arguments.  It found that employees were exposed to the hazard of falling objects in the unprotected area.  Commission case law, the ALJ noted, does not require actual employee exposure.  The opening on the west side of the building, although not designated as an access point, was obviously a potential access point as it was used as such by the C.O. and several employee representatives while work was being performed on the scaffold above.

The “takeaway” from this discussion is that employees, for purposes of OSHA, are deemed to be “exposed to” a hazardous condition whenever it is reasonably predictable, either by operational necessity or otherwise — including inadvertence — that they have been, are, or will be in the zone of danger.

Employees may be in the zone of danger when they are engaged in their assigned duties, their personal comfort on the job, or their normal means of coming and going to and from their assigned working areas.

Therefore, in order to avoid both employee injuries and OSHA citations, care must be taken to identify “zones of danger” at jobsites.  Whenever it is impractical or uneconomical simply to remove the hazard altogether, a “zone of danger” where employees are not expected to be present should be clearly marked off (or barricaded), employees should be instructed not to enter it, and entry into the restricted area should result in employee discipline as a safety rule infraction.

      Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner at 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.

Safety Policy:Scaffold Safety: Don’t Let Familiarity Breed Danger

Written by Thomas H. Welby on . Posted in Safety Policy.

Few things are more common on construction sites than scaffolds made of steel tubing and lumber planking. However familiar, by definition scaffolds are temporary structures, used to put men and materials on elevated platforms to perform work. If not properly designed, erected, inspected and maintained — or if used by workers insufficiently trained or not employing fall protection — scaffolds are accidents getting ready to happen.

While most larger projects use modular “tube and coupler” scaffolding, supplied and erected by specialized subcontractors, small projects, especially residential repairs done by non-union contractors, are notorious for accidents due to poor scaffolding practices. Scaffold safety isn’t “rocket science,” but many details require careful attention. And, while proper design and erection are obviously critical, frequent inspections, maintenance, employee training, and work rule enforcement are also essential.

There are many kinds of scaffolds. In addition to tubular-frame scaffolds, the varieties mentioned in OSHA ¬ß 1910.28 include (among others) mason’s and stone setters’ adjustable multiple-point suspension scaffolds, “boatswains’ chairs,” bricklayers’ square scaffolds, carpenters’ bracket scaffolds, needle-beam scaffolds, plasterers’, decorators, and large-area scaffolds, roofing brackets, and window-jack scaffolds. Many of these have specialized applications, or are restricted to light-duty or limited height applications.

Once a mainstay but now outmoded and rare, are wood-pole scaffolds. General-purpose scaffolds of this type, once common, are now seldom seen, as they must be built “from scratch,” and cannot readily be moved.

Design and erection fundamentals for scaffolds begin with the necessity to have a safety rating of at least four, and placement on a firm, level surface. Scaffold legs must be set on plain or adjustable bases, placed on mud sills or other foundations adequate to support the maximum intended load. If you can’t avoid placing the base plates on soft ground, use plywood pads (minimum 24″ square) beneath them. Any scaffold must be designed by a competent person. A tube scaffold, more than 125 feet in height above the base plates, must have written drawings and specs, designed by a professional engineer.

Frames must be placed one on top of the other with coupling or stacking pins, to provide proper vertical alignment of the legs. Scaffolds must be braced by cross-bracing or diagonal braces, or both, of such length as will automatically square and align vertical members, so that the erected scaffold remains plumb, square, and rigid. Planks and walk boards must be a minimum of 36″ below the stop of the scaffolding. All planking must be of “Scaffold Grade;” the maximum permissible span for 1-1/4″ x 9″ or wider plank of full thickness is 4′, with medium loading of 50 psf. Planking or platforms must be overlapped a minimum of 12″, or secured from movement. They should extend over their end supports not less than 6″, or more than 18″.

No part of the scaffold should be located within 10 feet of energized power lines. All platforms must be provided with 2″ x 4″ guardrails, at a height of between 36″ and 42.” Unless the area below is barricaded off, or the scaffold will not have open sides more than 10′ high, it must also have toeboards, not less than 4″ in height. If anyone will be required to work or pass under the scaffold, it must be provided with a ¬Ω” wire-mesh screen, covering the entire opening between the toeboard and the guardrail. Overhead protection must be provided on a scaffold exposed to overhead hazards.

Where the height of a scaffold is to exceed 20′, outriggers must be used to enlarge the base, and the scaffold must be tied into the building if feasible. The scaffold should be affixed to the building at intervals of not more than 30′ horizontally, and 26′ vertically. Where scaffolds are to be suspended using wire or fiber rope, the same must be capable of supporting at least six times the intended load. Only treated fiber rope should be used for or near work involving the use of corrosive substances or chemicals, and only wire rope-supported scaffolds used for cleaning buildings over 50′ in height with acid solutions. Special precautions should be taken to protect scaffold members, including wire or fiber ropes, when using a heat-producing process.

The most fundamental day-to-day safety rules in using scaffolds include the following. First, no one should be permitted to go up on a scaffold who is untrained in safe practices. Training should be repeated from time to time, and written records of topics covered, and the names of attendees, maintained. If work conditions, or the type or use of scaffolding changes, the training must be updated, and provided anew.

The scaffold should be checked before each work shift (and every time before use after it has been modified or moved) by a “competent person.” Everyone using the scaffold should be instructed to report signs of cracks, loose fasteners or bolts, or indications that the scaffold is out of plumb, or that vertical and horizontal members are not perpendicular.

Wheels must be locked before anyone climbs on the scaffold. The scaffold must never be moved with anyone on it. Safe access (normally, fixed ladders or ramps) must be provided, especially where the work requires a gap of 2 feet or more between the work area and the scaffold. Adjustable legs, intended for use in leveling the scaffold, must not be used to stretch the platform height. Where additional height is required, add one or more scaffold sections. Leveling should not be performed while anyone is on the scaffold.

Persons working on the scaffold must keep their center of gravity above the scaffolding. Employees must be forbidden to push/pull or lean against the wall or ceiling when standing or sitting on a scaffold, unless it is securely tied into the building. Employees must not climb or stand on diagonal braces, and should work only while standing on one of the platforms. No one shall work below or in the fall zone of the scaffolding. Portable ladders must not be leaned against the scaffold, or used on a scaffold platform. If there is a storm or heavy winds, a worker must not climb on the scaffolding unless he is using fall protection or a wind screen. Workers should not go onto the scaffold with snow or ice on it, except to remove the same, and to apply sand to the planking to prevent slipping when work resumes in clear conditions.

Open sides of the scaffold must be equipped with guardrails. Platforms must be kept clear of clutter, to prevent trips and falls. Last but not least, all workers on scaffolds working or walking at a height of 10′ or greater must have adequate fall protection in the form of a harness, and must tie off religiously. Since falls are the #1 cause of preventable construction fatalities, supervisors must be instructed to remind workers of the foregoing rules regularly, to call out violations, and to enforce the rules with a graduated system of disciplinary penalties. I am reminded of an incident in Brooklyn a couple of years ago, in which a scaffold collapsed beneath three men working five stories above grade. All three men had been provided with harnesses. The two men who were tied off got a bad scare, and spent 20 minutes dangling, until they were rescued by firefighters. The third man, who was not tied off, fell to his death. Safety rules are useless in preventing accidents — and OSHA citations — unless they are enforced. No one seen working aloft without his lanyard fastened should ever escape being spoken to, at least.

Needless to say, any scaffold seen to be damaged or improperly erected should not be used until repaired or corrected.

The foregoing covers most of the basics, but be sure to consult the OSHA regs if you plan to use a wood-pole or “specialty” scaffold. And, while most scaffolding subs are knowledgeable and conscientious, remember that, ultimately, if your employees will use the scaffold, or you’re the general contractor, it’s your responsibility.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Geoffrey S. Pope, counsel to the firm, assists 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.


Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner at 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.

Safety Policy: Estate Of Decedent, Crushed By Tipover Of Crate, Wins Summary Judgement Under “Scaffold Law”

Written by Thomas H. Welby on . Posted in Safety Policy.

In the years between 1995 and 2011, there occurred a “swing in the pendulum” at the New York Court of Appeals, regarding the interpretation of the State’s “Scaffold Law,” Labor Law ¬ß 240(1).

The Scaffold Law is best-known for providing enhanced protection, where construction workers suffer falls from elevated surfaces to a lower level. While ¬ß 240(1) is not quite a “strict liability” statute, imposing liability in all “gravity-related” accidents involving both falls and “struck-by” injuries from falling objects, an injured plaintiff’s “comparative negligence” will not be considered in mitigation of the damages recoverable. The plaintiff’s own negligence is a bar to recovery only where it is so pronounced as to be the “sole proximate cause” of his injuries. It is, nevertheless, a condition to recovery that the injury not only be caused by the force of gravity, but that it result from the employer’s failure to provide a statutorily-prescribed protective device.

In 1995, at which time the dominant faction on the Court of Appeals favored a restrictive reading of ¬ß 240(1), the Court’s decision in Misseritti v. Mark IV Construction Co. stated that Labor Law ¬ß 240(1) could not be the basis for recovery, where a worker suffered an injury caused by a falling object whose base stood at the same level as the worker.

In 2011, by which time the “barrel had rolled” in favor of a more liberal reading of ¬ß 240(1), the Court distanced itself from Misseritti, in the case of Willinski v. 334 East 92nd Housing Development Fund Corp. In Willinski, the plaintiff and co-workers were demolishing brick walls in a warehouse. Prior demolition had left standing two vertical plumbing pipes, rising about 10′ from the floor on which the plaintiff was working. Debris from a wall being demolished struck the pipes, and the pipes fell over and struck the plaintiff, injuring him. The Court of Appeals did not hold in Willinski that Scaffold Law liability necessarily existed on the facts presented, but rather that it would no longer apply a “same level” rule to categorically bar liability.

Thus, the Court in Willinski did not make a definitive ruling as to liability or non-liability, but found an issue of fact, to be resolved at the trial court level, regarding whether the worker’s injury resulted from the lack of a statutorily-prescribed protective device. If a device mentioned in the statute would not be necessary or expected in the circumstances, the peril would be incidental to construction work, and not within the statute’s coverage. If, however, a device ought to have been in place, liability would not be excluded as a matter of law, merely because the falling object stood at the same level as the injured worker.

The trend toward more expansive coverage may not continue indefinitely, as two of its proponents have left the Court (Judge Jones having died, and Judge Ciparick – the author of the decision in Willinski – having retired). However, the trend seems, for now at least, to be continuing, as illustrated in Toney v. Raichoudhury, recently decided in Kings County Supreme Court.

The project in Toney was a residential remodeling job in Nassau County. Defendant Lee Remodeling was the general contractor, and defendant M&M Metals (“M&M”) was a subcontractor, whose scope of work included the installation of curtain wall framing and glazing.

On the day of the accident, Erwin Toney was one of three M&M employees, whose only task for that day was to receive the delivery of six wooden crates of double-insulated thermal glass. The crates were delivered on a flatbed truck. The truck parked on the street in front of the residence. The truck was equipped with a crane, which was used to move the crates, one by one, to the driveway.

To facilitate installation, the workers staged the offloaded crates, each containing multiple plates of glass, so that when the crates were opened, the plates would not fall out, and the topmost sheet could be readily accessible.

This was accomplished in a fashion which was shown to be consistent with industry practice, and consisted of placing two crates upright, and parallel to each other on the driveway. The crates, each of which was roughly 9-10′ tall, and weighed more than 1900 lbs., were then tilted towards each other, until the tops of the crates touched and supported each other, forming an “A”. Then, the workers would use a screw gun to screw two wooden braces to the crates, one on each side, which braces served as crossbars to hold the crates in place.

While unloading the last two of the six crates, one of Toney’s co-workers was attempting to secure the horizontal braces on the “A,” as Toney and the other co-worker tilted the crates towards each other. Toney left his position to the side of the crates, and walked in front of the crates, to adjust the crate that was “off.” The crate nearest to Toney began to shift, and he may have been trapped by the toes of his boots coming under the weight of the crate. The crate fell onto Toney, causing crush injuries that proved to be fatal. The two crates were not secured to each other with braces when they fell, and they were no longer attached to the crane. No chocks had been placed on the ground to prevent them from tilting outward before the wooden braces were secured.

A wrongful death and personal injury action by Toney’s administratrix came before the trial-level Supreme Court on motions for summary judgment by Lee Remodeling, the general contractor, and M&M, Toney’s employer. So far as relevant to our Scaffold Law discussion, the Court first declined to dismiss the ¬ß 240(1) claim, holding that the sufficiency of an elevation differential and a fall from a height should take into account the weight of the object and the amount of force it is capable of generating, even over the course of a relatively short descent.

The trial court in Toney then went even further, and granted summary judgment for the plaintiff on the issue of liability. It held:

  • that Toney was not the sole proximate cause of his injuries;
  • that the crates were not properly secured (or braced and chocked) before the crane line was released; and
  • that the crates – notwithstanding that they stood on the same level as the plaintiff – came within the purview of ¬ß 240(1), due to their size and weight, and the force they were capable of generating.

Toney is a trial-level decision. If the defendant chooses to appeal, it’s a respectable argument that the better course would have been for Supreme Court to leave the ultimate issue of liability for the trier of fact, rather than granting summary judgment for the plaintiff.

Willinski and other recent cases, however, do seem to offer adequate support for the legal conclusions that, in falling object cases under ¬ß 240(1), there is no per se “same level” rule that excludes liability; that the weight of the falling object must be considered; and that the crucial factor is not the elevation differential, but the presence or absence of a statutorily-prescribed protective device.

Safety Policy: “Willful” OSHA Violations: What They Are, and Why You Should Avoid Them

Written by Thomas H. Welby on . Posted in Safety Policy.

Construction employers know that most OSHA violations are classified as belonging to one of four levels of gravity: Other-Than-Serious, Serious, Repeat, and Willful. (I say “most,” because there is a fifth level:de minimis violations, mere technical violations of a standard, for which monetary penalties and abatement orders are inappropriate).

What distinguishes “Serious” violations is that they involve a substantial probability of death or serious bodily harm. To sustain a “Serious” citation, the Secretary does not need to prove that an accident based on the cited hazard is likely, only that, were an accident to occur, death or serious injury would likely result. Examples of “Other-Than-Serious” violations are record-keeping violations, or a missing guardrail at a height where a fall would probably result in a mild sprain, cuts or abrasions.

In determining whether a violation is “Serious,” OSHA compliance officers consider the following four elements:

  • The type of accident or health hazard exposure that the standard in question is designed to prevent;
  • The most serious injury or illness that could reasonably result from the violation of the subject standard;
  • Whether the injury or illness identified in the preceding step includes death, or serious physical harm; and
  • Whether the employer knew, or with the exercise of reasonable diligence could have known, of the hazardous condition.

“Other-Than-Serious” violations generally have no immediate impact on your ability to obtain contracts for public work. Also, although monetary penalties can be as large as for “Serious” violations, as a matter of policy, OSHA generally does not assess penalties for first-time, “Other-Than-Serious” violations by employers having fewer than ten employees, where the total number of violations is less than ten. Accordingly, often it will not be in the employer’s interest to make the considerable investment necessary to contest “Other-Than-Serious” citation items.

Be aware, however, that “Other-Than-Serious” does not mean entirely inconsequential. An “Other-Than-Serious” violation that becomes a final order may later become the predicate for a “Repeat,” or even a “Willful,” violation.

A “Repeat” violation, although not defined in the OSH Act, is roughly what you think it is, and will subject you to enhanced penalties. Two things you ought to know are that the “Repeat” violation does not need to be of the very same standard; a prior violation of a “substantially similar” standard will suffice. Also, while older “Serious” citations may not impair your ability to get public work, there is no prescribed “lookback” period for a “Repeat” violation.

Also, while the prior violation must have become a final order to serve as the basis for a “Repeat” violation, some courts have held that citations that were settled, even where the stipulation contained exculpatory language, may qualify.

“Willful” violations, as you already know, are the most damaging, carry the highest penalties (which may include criminal sanctions) and are the most likely to impair your ability to get work, especially public work. What is it that defines a “Willful” OSHA violation?

Here again, the OSH Act fails to provide a definition, and there is still not a precise, universally-accepted formulation.

The following is, however, a working definition sufficient for nearly every case. A “Willful” OSHA violation requires, as a preliminary matter, that the cited party cited be an employer subject to the OSH Act. It involves a conscious, intentional, deliberate, voluntary decision. It differs from a “Serious” violation, in that it contains both (1) a heightened awareness of the illegality of the violative conduct or conditions; and (2) either conscious disregard for OSHA requirements, or plain indifference to employee safety.

While small differences survive among the OSH Review Commission and the courts as to the exact contours of “Willfulness,” all agree that the classification requires proof that: (1) the employer knew, or should have known, that the violation existed; (2) the employer voluntarily chose not to comply with the Act by correcting the violation; and (3) that choice was made with intentional disregard for the Act’s requirements, or plain indifference amounting to recklessness.

On occasion, we have thought OSHA a little too enthusiastic in characterizing violations as “Willful.” However, in part because such a violation is potentially so damaging to the employer, there is usually some “pushback” where a violation has been over-charged as to degree. The Administrative Law Judges seldom hesitate to downgrade violations to “Serious,” where the employer’s heightened awareness, and conscious disregard or plain indifference, are not established.

For example, in Secretary v. D. W. Caldwell, Inc., the respondent was a commercial sheet metal and roofing contractor that was installing a metal roof on a large campus building in Alabama. It was cited for having employees on a steep roof whose safety harnesses were not tied off, exposing them to a fall hazard of 32 feet.

The work, the judge found, was hazardous because of the slope (5:12) and height of the roof, and numerous tripping threats (panels, boxes, ropes, drills, etc.) The ALJ was unimpressed by the foreman’s claim that the crew could not use fall protection, because they could not transport the panels as required with their harnesses connected to anchor points.

Although the ALJ rejected an “unpreventable employee misconduct” defense, affirmed the violation as “Serious,” and upbraided the employer for its poor judgment, he declined to find that the violation was “Willful.”

In rejecting the classification of the violation as “Willful,” the ALJ made extensive findings, including the following. The employer had only 15 employees. It had a written safety program which, although inadequate, was augmented by weekly safety meetings and weekly visits from the company’s principal. It issued verbal warnings and filed written reprimands, as a means to enforce safety rules. Employees were provided with the necessary fall protection equipment. The foreman was experienced, and had attended OSHA’s 10-hour safety program. Following inspection, the entire crew received formal, third-party fall-protection training.

The CO agreed that the crew was properly trained in fall protection, and that the employer’s safety program, training, communication, and enforcement were “average.” The foreman was criticized for his “unfortunate” belief that not tying off while carrying the metal panels on the roof was not a fall hazard owing to the roof’s expanse, and that most work was being done near the peak. However, after inspection, the employer purchased retractable lines, allowing the employees to keep their hands free while tied off.

The CO agreed that the crew was properly trained in fall protection, and that the employer’s safety program, training, communication, and enforcement were “average.” The foreman was criticized for his “unfortunate” belief that not tying off while carrying the metal panels on the roof was not a fall hazard owing to the roof’s expanse, and that most work was being done near the peak. However, after inspection, the employer purchased retractable lines, allowing the employees to keep their hands free while tied off.

Overall, the ALJ felt that the employer had demonstrated a good faith effort to comply with OSHA requirements, and did not merit a “Willful” violation. The penalty imposed was reduced from the $28,000 proposed by the Secretary to $6,000.

If, following an inspection, you are cited for a “Willful” violation, keep in mind the 15 working day time limitation to file a notice of contest. A “Willful” OSHA citation is a matter of the utmost urgency, and you should contact experienced OSHA counsel at once.

Safety Policy: Limiting Employee Exposure to Diesel Particulate Matter

Written by Thomas H. Welby on . Posted in Safety Policy.

OSHA (the federal agency within the U.S. Department of Labor) is the largest, but by no means the only, government agency dedicated to occupational safety and health. Under the federal OSH Act, individual states are permitted to “opt out” of federal OSHA. New York, New Jersey and Connecticut have chosen not to opt out, and so are governed by federal OSHA as to those private-sector employees that fall within the statute. Each of these three states, however, has its own agency, within its (state) Department of Labor that covers public-sector employees. Approximately half the states do have their own “little OSHAs,” as authorized by the federal statute. The standards promulgated and enforced by “little OHSAs” generally differ but slightly from the federal standards, as the nationwide statute requires states’ “little OSHAs” to afford no less protection to employees.

Excluded from OSHA coverage are mining operations, for which there is a separate Mine Safety & Health Administration (MSHA). From 1891 until 1977, mine safety was under the U.S. Department of the Interior. Under the current statute, which moved enforcement from Interior to Labor, enforcement is under the MSHA, and adjudication under a separate MSH Review Commission. This organizational setup is borrowed from the OSH Act.

Recently, OSHA and MSHA issued a joint “Hazard Alert” concerning Diesel Exhaust and Diesel Particulate Matter. This is a major hazard in underground mines, in which diesel-powered equipment is ubiquitous, and ventilation must be mechanically supplied. However, most heavy equipment, medium and heavy-duty trucks, bucket lifts and generators found on construction sites have diesel engines, and so construction workers are at considerable risk from this hazard, too.

Diesel exhaust (DE) is a complex and unwholesome mixture of chemicals and particulates. It includes both a gas/vapor phase and a particulate phase, each of which includes both organic and inorganic components.

The major constituents of the gas/vapor phase of DE include carbon monoxide, oxides of nitrogen, sulfur dioxide, formaldehyde and other aldehydes, benzene, 1,3-butadiene, and a number of polycyclic aromatic hydrocarbons.

The particulate phase includes clusters of respirable particles, composed mainly of carbon. A variety of chemicals are contained within, or adsorbed onto, the DPM, affecting the toxicity of the particulate. The particles are classified according to size as well as composition.

Of particular health concern are fine or ultrafine particles, as these can get inhaled deep into the lungs. The composition of these particles is, typically, elemental carbon, with adsorbed compounds such as various organic compounds, sulfates, nitrate, metals (including metallic abrasion particles) silicates, ash, and a variety of trace elements.

Short-term exposure to high concentrations of diesel exhaust can cause irritation to the eyes, nose, throat and lungs, as well as lightheadedness, coughing and nausea. DE can exacerbate asthma and cause allergies. Long-term exposure has shown in laboratory studies a range of dose-dependent inflammation and cell changes in lung tissue. In June 2012, the International Agency for Cancer Research classified diesel exhaust as a Group 1 human carcinogen.

Miners in underground metal/nonmetal mines have, under the MSH Act, a permissible exposure limit (PEL) of 160 µg/m3 when measured as an 8-hour time-weighted average. If engineering and administrative controls do not reduce exposures below the PEL, respiratory protection, a high-efficiency air-purifying respirator must be worn.

OSHA does not presently have a PEL for DPM. However, there do exist PELs for other components of diesel exhaust (e.g., carbon monoxide, nitric oxide, and nitrogen dioxide) and monitoring for these can give some indication of the presence of diesel exhaust, as well as the effectiveness of engineering and administrative controls aimed at minimizing employee exposure to such exhaust, when working with or around diesel-powered equipment.

Because, usually, the health impacts of exposure to toxins such as DPM and other toxins are not so sudden or dramatic as when a trench caves in, or a worker falls to his death from an elevated surface, there is some danger of these hazards being overlooked in developing and implementing a health and safety program.

Don’t think that, because OSHA’s standards don’t have a prescribed PEL for diesel exhaust that you can’t be cited for employee exposure. Since it’s a recognized hazard, it likely falls under the General Duty Clause. Another consideration to keep in mind is that, under OSHA’s “multi-employer policy,” you can be cited if your employees are exposed to unhealthful levels of DE, even if the source is diesel equipment operated by another employer or employers.

While monitoring for air quality and employing an industrial hygienist are seldom if ever bad ideas, these are definitely steps you should take, if you utilize diesel-powered equipment indoors, or in semi-enclosed spaces (such as parking garages). Likewise, if your employees must work where other employers’ activities are creating a potential DE hazard, having an industrial hygienist monitor the air provides you with a stronger basis to negotiate abatement, if needed, with the trade creating the hazard, the GC, and/or the owner.

Assuming only open-air use of diesel-powered equipment, except in unusual circumstances the primary strategy in keeping employee exposure to DE at tolerable levels will be a combination of engineering controls. Examples of these include:

  • Routine preventive maintenance of diesel engines to minimize emissions;
  • Installing cleaner-burning engines;
  • Installing diesel oxidation catalysts;
  • Using engine exhaust filters;
  • Using special fuels or additives;
  • Installing or upgrading main or auxiliary ventilation systems, e.g., tailpipe or stack exhaust vents to capture and remove emissions in maintenance shops or other indoor locations; and
  • Providing equipment cabs with filtered air.

Administrative controls (changing procedures to reduce or eliminate the hazard) should also be employed. A few you should consider are these:

  • Limiting speeds and using one-way travel routes to reduce traffic congestion;
  • Limiting or prohibiting unnecessary idling or lugging of engines;
  • Limiting the total amount of diesel-powered equipment or total engine horsepower operating in a given area;
  • Employing an industrial hygienist to confirm that DE output does not exceed the capacity of the ventilation system; and
  • Restricting unnecessary employee access to areas in which diesel equipment is being used, and keeping diesel equipment, insofar as it is practicable to do so, away from employees not involved in its use.

Safety Policy: OSH Review Commission Clarifies Meaning of “Immediately Available” with Reference to Lifesaving Skiff Requirement

Written by Thomas H. Welby on . Posted in Safety Policy.

The OSH Act requires that “at least one lifesaving skiff shall be immediately available at locations where employees are working over or adjacent to water.” In a case of interest, also, because it disapproved the so-called “pick and carry” operation of mobile hydraulic cranes, the OSH Review Commission, affirming an Administrative Law Judge’s findings, clarified what “immediately available” means.

The employer in Secretary v. Boh Brothers Construction Company was building two bridges over Lake Pontchartrain, Louisiana for the “Interstate 10 Twin Span Project.” These bridges, both more than five miles long, extend between Slidell, La. and New Orleans. Boh had numerous crews at work, in multiple areas on and around the bridges. It also had more than a dozen boats in the vicinity, which it used for transporting workers and materials, as well as to respond to water emergencies.

On the day in question, two boats were continuously manned by Boh employees. Additional boats available for water rescue were docked in a boat pen at the north shore. The pen was located 150 to 200 yards away from an office trailer, staffed with at least one employee qualified to operate a boat, and provide first aid.

On the bridge deck near the north shore, Boh was building curbs along the edges of the deck using curb forms. Once a curb was finished in one location, laborers disengaged the forms, and a mobile hydraulic crane lifted them and traveled up to 150 feet, to deposit them at the next location. This procedure is known as “pick and carry.” Each load, with rigging and attachments, weighed just under 3,000 lbs. At the location, the deck had a slope of 1.43 degrees (2.5%) and a downward gradient, toward the north shore, of 0.9 degrees (1.6%).

The crane operator was working only his second day on the job. Like his predecessor, he was operating the crane on an uneven surface, with the crane’s outriggers retracted. The prior operator kept the curb forms in front of the crane, both when lifting the load, and while traveling with it. The new operator swung the load from the front of the crane to the back before traveling, which meant that the load was to the side of the crane as he rotated the boom.

A supervisor, concerned that the new operator’s technique might not be safe, exhorted him to “at least keep the boom scoped in” (to its shortest length) to reduce the radius of the swing. On the day in question, the operator followed these instructions, and carried out two “pick and carry” procedures without incident. The third time, the operator did not follow his instructions. As he hoisted a form, and began to swing it to the side, the crane tipped over, and fell onto the guardrail.

The operator lost consciousness and remained in the cab, dangling over the water, for between 2 and 7 minutes, while other employees held onto the crane, attempting to keep if from falling into the lake. Tompkins, the foreman supervising the crane’s operations, immediately made a cell phone call to Moulton, the senior project superintendent, to report the accident. Moulton used his cell phone to place multiple calls, including one to Solis, the field project manager, who was in the officer trailer at the north end of the bridge; and one to foreman Bailey, who was also at work on the bridge’s north side.

Bailey used his cell phone to call Jones, the lead boatman. Jones then called Byrd on his marine radio. At that time, Jones and Byrd were both in their boats on the water near the south shore. Bailey drove to the accident scene on the bridge, and was on the phone with Moulton, when the crane operator fell from the crane into the water.

Byrd was between 3 and 4 miles from the accident scene when he received the call from Jones. It took him between 6 and 10 minutes to reach the crane operator in the water. Project manager Solis, in the meantime, ran 150-200 yards from his office in the trailer to the boat pen. He traveled 250 to 300 feet, reaching the rescue location shortly after Byrd did. Byrd and Solis were not able to pull the unconscious operator out of the water and into the boat, but held his head above water, while steering the boat to the shore, where emergency personnel were waiting. Unfortunately, the operator died a week later from his injuries. OSHA cited Boh for failure to have a lifesaving skiff “immediately available,” and for the operator’s improper use of the mobile crane.

While the standard does not define “immediately available,” an OSHA interpretation letter identified factors relevant to that determination. While an interpretation letter is not binding precedent, the Administrative Law Judge ruled that whether Boh had made a lifesaving skiff “immediately available” turned on whether it had a water rescue system in place that could be expected to rescue a worker from the water within the three-to-four minute period before permanent brain damage could occur.

The ALJ determined that Boh’s response was prolonged by its failure to equip crew boats with radios capable of receiving an emergency broadcast channel. He also discounted the availability of boats and operators on the north shore, in part because Solis was not assigned lifesaving duties on that day, and the only active crew boat operators were miles away from the accident. The office trailer on the north shore, the Secretary argued, was too far away from the boat pen, for an operator stationed there to be considered in the “immediate area.” Accordingly, and based on the operator having been in the water for between 8 and 12 minutes, the ALJ found that the requirement of a lifesaving skiff “immediately available” had not been complied with. The citation and the associated penalty were therefore affirmed, and that outcome was upheld on appeal.

The Commission also agreed with the ALJ that Boh had violated the standard requiring that a crane be operated only within the manufacturer’s specifications and limitations. In defense of the “pick and carry” operations on the bridge deck, Boh attempted to show at trial by expert witness testimony that “pick and carry” is an accepted practice in the bridge construction industry – even when performed on a sloped surface, and without outriggers.

The ALJ stressed that the manual for the crane used (a Link-Belt RTC 8030 Series II) states that:

  • The crane must be level, on firm ground, with the outriggers fully extended and the tires clear of the ground before beginning any operation.
  • The crane must be level before making a lift: a 3-degree side tilt can reduce capacities by 50% or more.
  • “If a smooth level route is not available, don’t travel with a suspended load.”

The prior crane operator testified that he had done “pick and carry” operations even though the deck was not level, and he was generally aware that a gradient affects load capacity. The employer’s expert testified that the key to safe operation (and accepted industry practice) when operating a mobile crane “on rubber” on a sloped surface, is to “derate” the crane. This means adjusting the load charts to compensate for the slope, and staying within the crane’s reduced capacity.

The crane was equipped with a computerized “Capacity Limiter,” which monitored crane functions, and continuously compared the load with a copy of the crane capacity chart in the computer’s memory. However, the viewing screen was faded, such that, in daylight, the operator would have to shade the screen to read it.

Rejecting the expert’s testimony, the ALJ found that “derating” is irreconcilable with the manufacturer’s instructions, and that traveling with a load on a sloped surface during “pick and carry,” without outrigger beams extended and jacks partially deployed, is impermissible.

Safety Policy: Preparation and Attentiveness as Keys to Safe Demolition Operations

Written by Thomas H. Welby on . Posted in Safety Policy.

Performing demolition safely is a tough challenge. Two key elements in meeting it successfully are conscientious preparation, and – as with most OSHA matters – paying attention.

OSHA’s demolition standards are largely (but not entirely) within 29 C.F.R. 1926, subpart T, “Demolition.” Of particular importance is ¬ß 1926.850, “Preparatory Operations.”

Neglecting prescribed pre-demolition measures often results in OSHA citations. Before employees are permitted to start demolition operations:

…an engineering survey shall be made, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and possibility of unplanned collapse of any portion of the structure. Any adjacent structure where employees may be exposed shall also be similarly checked. The employer shall have in writing evidence that such a survey has been performed.

Identifying the presence and location of lead, asbestos, and other hazardous substances is an important part of the pre-demolition survey. If “any type of hazardous chemicals, gases, explosives, flammable materials, or similarly dangerous substances” has been used in “any pipes, tanks, or other equipment on the property,” or is even suspected of being present, testing and purging must precede actual demolition. The failure to comply with this requirement is another frequently-cited OSHA violation. All utility service lines must be shut off, capped, or otherwise controlled, and the service providers notified. If any power, water, or other utilities are to be maintained during demolition, the lines must be temporarily relocated and protected.

Another key component of the survey is identifying the structure’s weak points. OSHA frequently cites employers for failing to provide shoring or bracing for walls, to prevent premature collapse. Where the structure to be demolished has been damaged by fire, flood, explosion or other cause, the walls and/or floor must be shored or braced, as appropriate.

Another often-neglected precaution is the erection of an overhead shed and/or canopy to provide safe entrance into the structure to be demolished, and protection from falling objects. Any multistory building must be protected for a minimum of 8 feet from the perimeter of the building. All canopies shall be at least two feet wider than the building entrances or openings (1 foot wider on each side) and capable of sustaining a load of 150 pounds per square foot

The #1 cause of construction injuries – fall hazards – is very much present on demolition projects. Wherever a hazard exists to employees falling through wall openings, each opening must be protected to a height of approximately 42″.

Since demolition operations are subject to the fall protection standards of Subpart M, note that employees on walking/working surfaces must be protected from falling through holes (a “hole” being defined as “a gap or void 2″ or more in its least dimension”) more than 6′ above lower levels, by covers, guardrail systems, or personal fall arrest systems. Covers are required, also, to protect against objects falling through holes. Floor openings not used as material drops “shall be covered over with material substantial enough to support the weight of any load which may be imposed,” the covering to be “properly secured to prevent its accidental movement.”

As guardrails are a preferred means of fall protection in building interiors, you should become intimately familiar with the provisions of 29 C.F.R. ¬ß 1926.502. In addition to other, technical requirements, guardrails must be capable of withstanding, without failure, a force of at least 200 lbs., applied within 2″ of the top edge in any outward of downward direction.

Access ways to the structure of the building are to be entirely closed at all times, excepting designated stairways, passageways and ladders. These must be periodically inspected, and maintained in a clean safe condition. Where a stairwell is being used in a multistory building, it must be properly illuminated, and completely and substantially covered over at a point not less than two floors below the floor on which work is being performed. Access to the floor where demolition is in progress shall be through a properly-lighted, protected, and separate passageway.

Where debris is to be dropped through holes in the floor, without the use of chutes, the area onto which the material will be dropped must be completely enclosed, with barricades not less than 42″ high, and not less than 6′ back from the projected edge in the opening above. Signs warning of the hazard of falling materials must be posted at each level. The removal of debris from the lower area shall not be permitted, until debris handling above has stopped.

Where chutes are employed, the chute openings must be protected by a guardrail about 42″ above the floor, and any gap between the chute and the edge of openings in the floors through which it passes must be solidly covered over. Except at ground level, chute openings must be kept closed when not in use. No material may be dropped to any point lying outside the structure’s exterior walls, unless the area is effectively protected. Where material is deposited into chutes by wheelbarrows or mechanical equipment, a securely-attached toeboard or bumper, at least 4″ thick and 6″ high, must be provided at each chute opening.

At the top of this article, I mentioned that in addition to careful preparation, “paying attention” is a major component of demolition safety. The regulations codify a number of requirements where watchfulness is needed. To cite just a few examples: “a substantial gate shall be installed in each chute at or near the discharge end. A competent employee shall be assigned to control the operation of the gate, and the backing and loading of trucks.”/p>

Where floor arches are being removed, “employees shall not be allowed in the area directly underneath, and such an area shall be barricaded to prevent access to it.” Notwithstanding that the lower level has been closed off, it’s necessary to confirm that no one is present there, before the arch removal proceeds.

Where balling or clamming is being performed, “no workers shall be permitted in any area, which can be adversely affected.” Only workers necessary for the performance of the operations may be permitted in the affected area at any other time.

As demolition proceeds, “continuing inspections by a competent person shall be made . . . to detect hazards resulting from weakened or deteriorated floors, or walls, or loosened material. No employee shall be permitted to work where such hazards exist until they are corrected by shoring, bracing, or other effective means.”

Since demolition (not involving explosives) consists essentially of workers tearing down a structure from the inside, and entails many potentially hidden hazards and tons of debris being dropped through floors or chutes, it’s a hazardous undertaking indeed.

In addition to observing specific regulations like the few just mentioned, you need leadership from your supervisory personnel, and trained workers who will communicate with one another, and with supervisors, regarding dangers observed.

The cost of lapses can be great. In one recent case, a bobcat collecting debris on the 19th floor of a building being demolished struck a steel beam concealed under concrete rubble. The beam was propelled through the parapet wall, causing a twenty-foor-long section of the wall to collapse into a pit outside the structure. Ordinarily, radio communications were used to ensure that no one was in the pit when work was in progress above. Unfortunately, that precaution was not carried out, and a flagger who was chatting with a driver who had backed his truck into the area to remove debris were killed when the parapet wall collapsed onto them.

Safety Policy: Safety Fundamentals for the Use of Aerial Lifts in Construction

Written by Thomas H. Welby on . Posted in Safety Policy.

Deaths associated with the use of aerial lifts are on the magnitude of 30 per year, or about 3% of all construction fatalities. Of these, boom-supported lifts account for roughly 70% of the deaths, with electrocutions (43%) being the greatest cause of death associated with boom-supported lifts, and falls (44%) and collapses/tip-overs (30%) being the primary causes of death in using scissor lifts.

Not surprisingly, electrical workers (45%) account for the largest subgroup of workers killed in using boom-supported lifts, while scissor lift fatalities are distributed about equally between electrical workers (22%) and construction laborers (23%), with “other trades” (plumbers, steamfitters and pipefitters, masons, drywall installers, etc.) being well-represented (38%).

The great majority of electrocution deaths involve overhead power lines. About half of these involve contact between power lines and the worker’s body, and about a third result from power lines coming into contact with lift booms or buckets.

Approximately half of fatal falls from boom-supported lifts (and one-half of fatal falls from scissor lifts) involve being ejected from the bucket after the worker, or the lift, is struck by a vehicle, crane or other object. About one in six fatal falls from boom lifts occurs while entering or exiting the bucket while elevated.

With boom lifts, collapses of the boom or the bucket and tip-overs account for not quite one-fifth of the fatalities. Tip-overs cause almost one-third of scissor lift deaths, mostly where the lift was elevated more than 15 feet above grade.

A first principle of safe lift operation is to have a written protocol requiring proper maintenance and training. Lifts must be inspected by qualified mechanics, and maintained in accordance with the manufacturer’s manual. Buckets on lifts to be used near overhead power lines should be insulated, and the insulation regularly checked for wear. A detailed inspection of the entire apparatus should be performed at least annually. De-energize and lockout/tagout any aerial lift before performing maintenance and repairs.

Safety devices and operating controls should be checked by a “qualified person” before each use, and the area in which the lift will be used should be checked for stability, inclination (do not exceed the manufacturer’s slope recommendations) holes, drop-offs, bumps, debris, and other hazards. Outriggers, brakes and wheel chocks should be deployed as necessary.

To prevent electrocutions, keep all non-electrical workers at least 10′ away from overhead power lines. Electrical workers must de-energize or insulate power lines, or use proper personal protective equipment.

To prevent tip-overs, do not exceed the manufacturer’s recommended load capacity limits, and do not use an aerial lift as a crane. Don’t use it for any purpose, other than to lift people and personal tools. Do not travel to the job location with the lift in an elevated position. When working near traffic, always set up proper work-zone protection.

Also, observe all of the following “don’ts” in positioning and setting up the lift: don’t drive near drop-offs or holes; don’t raise the platform on soft, uneven, or unstable services; don’t drive onto such surfaces, while the lift is elevated; don’t raise the platform on a sloped surface, or drive onto a slope while elevated; and do not raise the platform in wet, windy or gusty conditions.

An aerial lift truck must not be moved while the boom is elevated and anyone is in the bucket, unless the equipment is specifically designed for that type of operation. Detailed requirements which must be satisfied if employees are to be permitted to ride on a scissor-lift platform are set forth in C.F.R. $ 1926.452(w)6). In using any type of lift, be sure that persons working or otherwise present in the area are warned, before the lift is moved from place to place.

OSHA regulates aerial lifts as scaffolds. Fall protection (full-body harness with lanyard, or body belt with 2-foot lanyard) is required on bucket trucks only. Harnesses and lanyards are not OSHA requirements on other types of boom lifts, or on scissor lifts, provided there are guardrails. In fact, because falling bodies being “arrested” can result in many types of lifts tipping over, there is a preference, in using scissor lifts, for fall-prevention systems, rather than fall-arrest systems.

Workers going aloft in lift buckets must be trained to tie off religiously; not to “belt off” to an adjacent pole or other equipment while working, and always to stand firmly on the bucket floor. They must never sit or climb on the bucket’s edge, or use ladders, planks etc. to get a better work position.

Two hazards prevalent in the use of scissors lifts are tip-overs and falls resulting from the platform being overloaded with heavy objects, and workers being crushed, where the platform approaches or comes into contact with overhead structures. Also, many models of scissors lifts are not rated for outdoor use. Be sure to review the manufacturer’s manual before using any scissors lift outdoors.

OSHA requires that lift operators be trained, but does not prescribe the content of such training. Reference should therefore be made to ANSI A92 aerial lift standards, which provide detailed guidance for a workplace inspection, issues that need to be addressed prior to each elevation, items to be covered in a daily pre-start inspection, and some three dozen topics that must meet compliance standards to operate the lift safely.

As lift equipment is typically rented, special care is required. While you should certainly obtain a written maintenance history for any lift you rent, of particular importance is that the lift have been inspected immediately prior to rental. Also, familiarity with one type of lift is no assurance of competence in operating any other type of lift. You need the operator’s manual and (if separate) the maintenance manual. These, naturally, will only provide information concerning the make and model being rented.

According to the “Statement of Best Practices of General Training and Familiarization for Aerial Work Platform Equipment,” both “training” and “familiarization” are necessary to ensure operator competence. Typically, according to the “Statement,” depending on the number of trainees, and the number of equipment classifications to be covered, training will require 3-6 hours, or more. “Familiarization,” for employees who have already completed training, typically requires 15-60 minutes, depending on the complexity of the equipment.

Employers are responsible for the adequate training of lift operators. Increasingly, OSHA inspectors are citing employers for failure to train employees “in the recognition and avoidance of unsafe conditions” and OSHA regulations applicable to their work environment, even where an accident causing injury or death has not occurred.

Make sure your lift operators’ training includes all of the following:

  • general coverage of your company’s safety practices;
  • the manufacturer’s recom-mendations for safe operation;
  • comprehensive coverage of potential hazards (including site conditions, as well as those specific to the equipment)
  • the requirement that the trainee give a “hands-on” demonstration, satisfactory to the instructor, of his or her ability to operate the lift; and
  • instructions as to the reporting of hazardous conditions observed (damaged or malfunctioning equipment and site conditions) and any accidents or “near-miss” occurrences.

Training should be documented and records retained for at least three years.

Naturally, if incidents (“near-miss” incidents) suggest the need, re-training should be provided.

Safety Policy: Construction Employers’ Primary Duties Under New York’s Labor Law

Written by Thomas H. Welby on . Posted in Safety Policy.

In New York (in private-sector employment, anyway) federal OSHA has a comprehensive set of safety standards for construction work – plus a separate set of rules for general industry.

New York’s Industrial Code pre-dates OSHA, and remains very much in force. Generally, when OSHA is violated, the result is a citation, and a monetary penalty. However, although employees can and often do bring OSHA violations to the attention of the Regional Office (and unions are notified, and invited to participate in citation contest proceedings) employees cannot themselves issue citations, insist that the agency act, or go to court based on OSHA violations, even when injury or illness results.

Instead, New York has a Workers’ Compensation statute and personal injury actions under the state Labor Law. Workers’ Comp, of course, was an early-20th century innovation, representing a major compromise of competing interests. The benefit to workers is essentially threefold. First, they generally receive monetary compensation for covered work-related injuries within a reasonable period of time. Second, as Workers’ Comp insurance is mandatory, an injured worker rarely will be left with no compensation, should the employer become insolvent. Third, the injured employee does not have to prove, as a condition to obtaining compensation, that his or her employer was negligent.

The trade-off, of course, is that sums recoverable under Workers’ Comp are modest, and are often viewed by injured employees as insufficient. And, in theory, an employee covered by Workers’ Compensation may not sue his employer to recover damages for his injuries.

I say “in theory,” because the prohibition against suing one’s employer has an exception big enough to drive a truck through – at least where there are two or more defendants. Assume, for example, that a subcontractor’s employee is injured on the job, due to an equipment malfunction. While he may not be able to sue his employer directly, he can probably sue the general contractor, the construction manager if any, the premises owner, and the manufacturer and the vendor of the allegedly defective equipment.

Thanks to New York’s “contribution” statute, the doctrine of “comparative negligence,” and what is called “third-party practice” in civil tort litigation, even where the employee is barred, under the Workers’ Compensation Law, from suing his employer directly, the other defendant(s) will bring the employer into the lawsuit by means of a “third-party complaint.”

In New York, a party alleged to have been negligent is entitled to an apportionment of liability among all parties as the jury finds to have contributed to the plaintiff’s damages. Thus, the employer, even if protected against direct suit by his injured employee, will have to pay his share of the damages (corresponding to his degree of fault) under this doctrine of “comparative negligence.” Likewise, a plaintiff whose own negligence contributed to his injuries is not wholly barred from recovering damages, but his recovery will (with one major exception) be reduced, according as his fault contributed to bringing about his own injuries.

The exception mentioned, of course, is New York’s notorious “Scaffold Law,” N.Y. Labor Law ¬ß 240. Where the employer has failed to provide adequate protection against falls and other gravity-related hazards, the employee’s own negligence is irrelevant (unless it was the “sole proximate cause” of the occurrence).

Three sections of the Labor Law are pleaded in most lawsuits in New York alleging construction-related injuries. One, already mentioned, is the Scaffold Law, ¬ß 240(1). The second is ¬ß 241(6), which requires compliance with the provisions of the Industrial Code, promulgated by the Division of Safety & Health of the New York State Department of Labor. The third, ¬ß 200, essentially codifies the common law duty to maintain jobsites “as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places.” These three sections outline, essentially, the primary duties imposed on construction employers by the State of New York. They’re illustrated in a recent appeal in the case of Mendez v. Jackson Development Group, Ltd.

Mendez allegedly was injured, while he and a co-worker were installing plate glass window panes in a building under construction. While Mendez was standing on a ladder, he and the co-worker, who was standing on the ground, lifted a pane in order to install it in a window frame. The pane split in half, and the pieces stuck Mendez, injuring him.

Mendez commenced suit under the three aforementioned sections of the Labor Law. The lower court granted summary judgment in the plaintiff’s favor on the “Scaffold Law” cause of action. The court also denied motions by defendants as to causes of action based on each of the three statutory sections mentioned.

The defendants appealed from each of the lower court’s determinations. The Appellate Division held that the lower court had correctly sustained the Labor Law ¬ß 200 claim. Defendants argued that they did not direct or control the plaintiff’s work. However, the appellate court stated, where a plaintiff’s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence, and under Labor Law ¬ß 200, if it has control over the work site, and actual or constructive notice of the dangerous condition. The Appellate Division agreed that the defendants’ submissions in the court below had not removed all triable issues of fact regarding control over the work site, and actual or constructive notice of a dangerous condition. Accordingly, those issues could not be decided summarily, but required a trial.

However, while the appellate court agreed with the lower court that summary judgment was appropriate on the Scaffold Law claim, it found that judgment had been granted below in favor of the wrong party! Although the plaintiff had been injured by falling glass, not every object falling on a worker, causing injury, gives rise to a ¬ß 240(1) claim. The plaintiff must show that, at the time the object fell, it was being “hoisted or secured,” or “required securing for the purposes of the undertaking.” The plaintiff has to show, also, that the object fell because of the absence, or inadequacy, of a safety device listed in the statute. Mendez completely failed to show this, and so this count of his complaint was dismissed.

The Appellate Division found, finally, that summary judgment should have been granted dismissing the ¬ß 241(6) claim. Suit under that section must be premised on a specified provision of the Industrial Code alleged to have been violated. In Mendez, the plaintiff alleged a violation of a section requiring owners and contractors to maintain working areas free from debris and other tripping hazards, “insofar as may be consistent with the work being performed.”

This claim was dismissed, because the plaintiff did not allege that he tripped on a tripping hazard (or even that such hazard had caused the glass to break).

Your safety personnel should all become familiar with Part 23 of the Industrial Code, “Protection in Construction, Demolition and Excavation Operations.” It’s online at the NYS Labor Department’s website. These rules (similar, but not identical to, OSHA’s construction industry standards) need to be incorporated into your company’s safety program.