A Chicago-area concrete contractor was charged with three “Willful” OSHA violations, following an incident in which four employees were sickened, and two diagnosed with acute carbon monoxide poisoning.

At trial before an administrative law judge, the employer succeeded in having one of the three citation items vacated, and the other two reduced in gravity from “Willful” to “Serious.”

On appeal to the OSH Review Commission, however, the Commission reinstated the dismissed item and affirmed all three citation items as “Willful.” The Commission imposed penalties totaling $112,000.00.

The project was the pouring of a concrete floor inside a commercial structure being added to a pre-existing building. The new addition was 90 x 75 feet x 30 feet high. It was connected to the existing structure by an overhead door, which led to a vestibule area. In addition to the overhead door, which faced west onto a parking lot, there was a man door near the newly-constructed, steel-frame addition. A second man door was located on the southwest side of the building, which opened onto a parking lot on the adjoining street.

Elliott Construction, the employer, had a “flat work” crew of twelve at the site, under the direction of foreman Michael Dynowski. In setting up for the pour, Dynowski deployed three fans to provide ventilation, as a gasoline-powered laser screed, power rake, and power trowels were to be used in the indoor space. He set up two large industrial fans, one at the man door opening to the outside parking lot, and the other at the overhead door that led to the vestibule. A small pedestal fan was placed at the other man door, to blow air in from outside. Dynowski had had safety training regarding carbon monoxide (CO), and knew that CO, as would be emitted by the gasoline-powered equipment, posed a potential danger to his crew members’ health.

In addition to exhaust from gasoline-powered equipment being used indoors, the size of the pour required a dozen concrete trucks to remain idling, while parked near one of the building’s few openings.

At about 10:15 A.M., Employee “A” complained to Dynowski of a headache, but attributed it to a sinus condition. Employee “A” took an outdoor break of 15-20 minutes, and returned to work. A few minutes after Employee “A” went outside, Employee “B” reported feeling ill, at which point Dynowski, as he later testified, realized that “there was a carbon monoxide issue.”

Despite that realization, Dynowski did not stop the pour, even after Employee “B” vomited, and Employees “C” and “D” also reported feeling ill. Despite Elliott’s policy, which was to get everyone out of the building and to contact Safety Check (an outside consultant) to perform CO monitoring, Dynowski did nothing more than permit the affected workers to take breaks outdoors. A pause in the work was taken only when the supply of concrete ran out, and the crew had to wait for more to be delivered.

When the additional concrete arrived, Dynowski took the crew (minus the four ill employees) back inside, to resume working. Fortuitously, an employee from Safety Check stopped by on a routine visit, and summoned medical assistance.

All four workers were administered oxygen and taken to hospital, where Employees “C” and “D” were diagnosed with acute CO poisoning. Adjusted for time of exposure and timing of the blood tests, the test results calculated that Employee “C’s” exposure level was 104.1 PPM, and Employee “D’s” was 80.5 PPM. OSHA’s maximum Permissible Exposure Limit (PEL) for airborne CO is a time-weighted average of 50 PPM.

Elliott was cited for three violations. One was for failing to maintain a program providing for “frequent and regular inspections” of the job site, by failing to conduct air monitoring for CO. The other two items were for exposing Employees “C” and “D” to levels of CO above the PEL.

In part because, four years previously, Elliott had been cited for exposing seven employees to CO, at levels up to 4.4 times the PEL, the Secretary characterized the violations as “Willful,” and sought penalties of $112,000. Elliott contested all items and the penalties.

At trial, Elliott pointed out that the OSHA standard requiring “inspections,” unlike several other OSHA airborne contaminant standards, does not specifically require that the employer “monitor” or “test” the air. That’s a plausible argument, under the rule of statutory interpretation that, if a requirement appears in one or more provisions directed to a common end, its omission in other provisions having the same purpose should be regarded as deliberate. Based on that argument, the ALJ vacated the first, failure-to-inspect citation item.

The employer was less successful in its challenge to the excess-exposure citation items, which was based on evidentiary issues and expert witness testimony attacking the methodology employed, in the absence of monitoring at the site, to calculate the CO exposures of Employees “C” and “D” by working backward from their tested blood levels of carboxyhemoglobin, a byproduct of inhaling CO that reduces the blood’s oxygen-carrying capacity.

This latter challenge failed, the ALJ sidestepping the methodology issues by relying on monitoring by the local fire department following the workers’ exposure, all four employees’ symptoms during and after their exposure, and the indisputably elevated levels of carboxyhemoglobin in the blood of Employees “C” and “D.”

However, while the ALJ affirmed the two excess-exposure items, she fund in favor of the employer on the “close issue” of willfulness. As a result, these items were affirmed as “Serious” rather than “Willful,” and only $14,000 in penalties was assessed.

On review, the Commission reinstated the “failure to inspect” item, finding that the absence of the terms, “test” or “monitor” could not be determinative, given that, because CO is colorless and odorless, the only way to “inspect” a worksite to ensure that the PEL for CO will not be exceeded is by air monitoring.

The Commission further ruled all three violations to have been “Willful,” and increased the penalties from the $14,000 imposed by the ALJ to $112,000 as originally sought by the Secretary.

Gasoline-powered equipment is more commonly used outdoors. The indoor use of such equipment (if not equipped with catalytic converters) should be avoided where possible.

Engineering measures (the use of fans) to keep CO levels below the PEL were not, as required, approved for that particular use by a competent industrial hygienist, or other technically qualified person. Neither were respirators used.

Those omissions were particularly important in the Elliott case, because the building where the work was being performed was barrier-tight, and had few openings to the exterior.

In ruling the violations to be “Willful,” the Commission relied also on the fact that Elliott had adopted, but later abandoned, the daily use of CO monitors following the prior incident.

The hallmark of a “Willful” OSHA violation is an “intentional, knowing or voluntary disregard” for the requirements of the OSH Act, or “plain indifference to employee safety.” Apart from heftier penalties, and potential damage to your ability to get work, “Willful” violations are harmful to your firm’s reputation, and to employee morale as well.

The 2012 London Olympic Games, in progress as this is written, are proving a great success in terms of athletics and showmanship. The construction of the venues, Olympic Village, and associated infrastructure proved to be a rousing success as well. One of the largest construction projects ever undertaken in Greater London was completed on time, and within budget. Forty-six thousand workers put in over 80 million man-hours, without a single fatality, and with an accident rate well below the national average for the U.K.

These impressive results were not the product of chance, but of thoughtful planning, and making health management – as well as accident prevention – top priorities throughout.

The entire project was planned as something of a “laboratory”, with the Olympic Delivery Authority (ODA) and the U.K.’s Health Services Executive (HSE) commissioning a number of studies and reports to memorialize what was done, and how such outstanding results were achieved.

An Occupational Health service was established, with a team of occupational hygienists and other professionals advising managers in the prevention and treatment of occupational sickness, and the promotion of healthy behaviors. Members of the OH team attended all senior team health and safety meetings, and provided support on-site to ensure that all design work, method statements and risk assessments took health risks into account.

The OH team had a strategy, and targeted, in particular, vibration, noise, respiratory issues, hazardous substances, and manual handling. The team was funded by the ODA, and its services provided free of charge to all contractors. The cost was about ¬£350,000 a year over the three-year life of the project, but the payback was remarkable. It was estimated that exposure to occupational health risks was reduced by as much as two-thirds, and the reduced number of sick-days taken by project workers may have saved as much as ¬£7 million over three years. This “return on investment” of roughly 7:1 suggests that having full-time occupational hygienists on larger projects is not only good for the workers, but makes economic sense as well.

Savings achieved thanks to the OH team well exceeded reduced sick-days, and benefited individual contractors as well. One example is that the OH team identified potential methacrylate exposure, and devised a simple but effective control regime, saving the contractor an estimated £20,000.

Following a site closure due to the identification of asbestos-containing materials, the OH team’s ability to provide prompt, tailored asbestos-awareness training enabled another employer to quickly get its large workforce back to work, saving an estimated ¬£656,000.

The desirability of devoting the same degree of attention during the design phase to occupational health risks as is given to safety issues is illustrated by the following account of problems encountered due to a modification to the design of decking on a number of bridges, when it was recognized that resulting hand-arm vibration and noise might be significant. This is one of a number of “Lessons Learned” published online by the ODA (london2012.com/ learninglegacy).

Both permanent and temporary bridges were to be constructed for access to the Olympic Park site. It was decided that five temporary bridges would include wooden, rather than asphalt decking, and that two of the five would need to be strong enough to accommodate a large fire engine. The enhanced strength requirement meant that approximately 16,000 holes would have to be drilled into the concrete base, and many more points screwed into place to better secure the decking.

The Principal Contractor building the temporary bridges detected a possible hand-arm vibration risk, when employees of the subcontractor working on the decking reported symptoms of possible carpal tunnel syndrome. The employees were referred to the on-site occupational health facilities for screening, and two were confirmed to have carpal tunnel syndrome, which was being exacerbated by the use of vibrational tools.

That finding triggered a review of the bridge decking activities by the on-site occupational hygienist. That review showed that employees could not use the drills for more than 30 minutes a day, without incurring excessive vibrational exposure. The hygienist also raised issues regarding the level of exposure to silica and wood dust, excessive noise exposure, and other manual handling concerns.

Limiting the daily use of the drills to 30 minutes would have produced an unacceptable delay in the completion of the bridge decking. Therefore, the contractor sourced, and the hygienists monitored the trial use of, a low-vibration drill, with an integrated extraction system to reduce exposure to wood dust and silica. The new drill was found to be safe for use for up to eight hours daily. Further monitoring was performed, and controls for silica and noise exposure were tightened. The number of fixings to batons was also reduced.

As stated in the “Lessons Learned” article, there were several earlier stages at which occupational health risks from the wooden decking ought to have been identified. While later review emphasized the failure to design out these particular risks, the good news is that, thanks to the proactive approach to health risks on the project, and the ready availability of occupational hygienists, significant reductions in vibration, noise, and silica exposure were achieved, with only a brief interruption in the decking installation.

Following completion of the Olympic project last year, a team from the Loughborough University’s Schools of Business and Economics and Civil and Building Engineering was commissioned to review the techniques that produced the exemplary results. The key recommendations for future projects made by this study included several items I have stressed in this series.

First, lead from the top. The ODA set standards, and visibly engaged with the project workforce. Your company will excel in health and safety only if employees see that top management is genuinely committed to that goal.

The second key point is one I have mentioned often: develop competent supervisors. Your field supervisors should have both technical knowledge regarding health and safety, and communications skills to influence workers’ understanding and behavior.

Third, foster an open, positive health and safety culture. The Olympic project made this a top priority from inception.

Fourth, reward good behavior. Incentives and rewards helped to promote safe behavior on the Olympic project, but positive feedback was the real reward in many cases.

Fifth, review and learn. Issues were constantly communicated and reviewed across the organization, and solutions to problems were formulated and implemented.

A sixth recommendation I would add to the foregoing is to devote more resources, and more training, to health issues, not just accident prevention. Historically, the positive impact of OSHA has been less dramatic in the occupational health area, where results (both positive and negative) are less immediate, and trickier to assess. The Olympic build proved the value of occupational hygienists, and that the associated cost was one which, on that project at least, was recouped many times over from reduced sick time, and creative, delay-minimizing problem-solving in the field.

It’s important to be familiar with OSHA standards governing the use and storage of compressed gas cylinders, even if your own employees do not themselves engage in cutting and welding operations. Since the risks include explosions and fire, general knowledge of the Subpart J (Welding and Cutting) standards is essential, as a matter of protecting your employees. Obviously, if your company doesperform cutting and welding, your knowledge must be thorough. If you are a general contractor, you will probably be responsible for your subcontractors’ OSHA violations under the “Multi-Employer Doctrine,” which implies the need to know these standards well.

In Secretary v. National Steel Erection, Inc., the respondent was a subcontractor engaged in fabricating holding tanks for a wastewater treatment system in Tennessee. It was issued a single-item “Serious” citation by OSHA for having oxygen, acetylene and propane cylinders on a storage rack, without a sufficient firewall. The cylinders were separated by a noncombustible barrier 5 feet in height, and 1/4″ thick, but with a 1″ gap between the barrier and the frame on the frame’s right and left sides. At the time of the OSHA inspection, National Steel had not done any cutting or welding for one week; and, as it was finishing up and had only one employee remaining onsite, had no plans to use the cylinders again on the project. (The importance of the last-mentioned fact is that, generally, OSHA is less strict in citing violations of the “storage” standards, if the cylinders are expected to be in use within 24 hours, and are connected to a properly-functioning regulator).

National Steel was cited for violating 29 C.F.R. $ 1926.350(a)(10), which provides:

Oxygen cylinders in storage shall be separated from fuel-gas cylinders or combustible materials (especially oil or grease), a minimum distance of 20 feet (6.1 m) or by a noncombustible barrier at least 5 feet (1.5 m) high having a fire-resistance rating of at least one-half hour.

National Steel contested the citation. At the time of the inspection, four or five employees of another contractor were painting and sandblasting the tanks, about 30 feet distant from the storage rack. Another contractor’s job trailer was about 50 feet away. Employee exposure to the condition was thereby established.

The element of actual knowledge was established by admissions by National Steel’s superintendent that he knew that the cylinders were in storage, and that the barrier had not been tested. The ALJ found “constructive knowledge” as well, as the storage rack and cylinders were in plain view at the time of the inspection.

Apart from the amount of the proposed penalty, there was only one issue for the ALJ to decide: the sufficiency of the barrier on the storage rack to comply with the standard.

The exact composition of the barrier was uncertain. While it was shown to have been made only of metal (and not metal combined with cement plaster or mineral wool fillers) it was not shown to be 100% steel. While neither National Steel nor the Secretary had actually had the barrier tested to establish its fire rating, the ALJ found convincing the Secretary’s argument, based on a 2006 “Memorandum on Interpretation for Fire Resistance Ratings for Metal.” That Memorandum found, essentially, that 1/2″ thick steel would not meet the necessary 1/2-hour fire resistance rating. Steel plate barriers combined with plaster (cement, lime and perlite) fillers, or mineral wool fillers, provide a higher protection factor. Since National Steel’s barrier was only 1/4″ thick, even if it were assumed to be solid steel, it would not meet the fire rating required.

Also, the ALJ found, even if the partition had been thicker and combined with concrete plaster, it would still be insufficient, because of the 1″ gap between the barrier and the frame, which would permit fire to circumvent the barrier.

Although the ALJ reduced the monetary penalty, she affirmed the firewall violation as “Serious.”

OSHA issued a new final rule regarding acetylene, under the Part 1910 general industry standards, which became effective on November 9, 2009. The Part 1926 construction standards have not been amended correspondingly.

An innovation, which while spurred by the amendment to the general industry guidelines has spread into the construction domain, is the replacement of many old-style two-wheeled “tip-back” carts (having two gas cylinders chained to the deck) which had been the standard since the early 1900s.

Naturally, a primary safety feature on the newer welding carts is an OSHA-compliant firewall between the gas cylinders. One design has a partition consisting of three separate baffles, to create two exhaust vents at the top, and two intakes at the bottom. This allows heat from the fuel-gas flame of one cylinder to draw in ambient air from below, with the heated air escaping through the top vents. This minimizes heat transfer to the oxygen cylinder.

The newer carts have a number of additional safety-related features. Among them are: a four-wheel base; steel enclosures to protect the cylinders from being punctured or otherwise damaged by falling objects; mechanical devices, rather than loose-fitting chains, to secure the cylinders; a separate, vented container for the regulators, a torch cradle, a surface for parts, supplies, and manuals, and a self-recoiling hose reel.

Down the road, I expect, OSHA will update the Part 1926 construction standards regarding the storage and use of compressed gases in cutting and welding operations.

In the meantime, it’s a good idea to become familiar with existing Subpart J standards. (All OSHA standards can be found online at www.osha.gov). In addition, and in advance of necessity, you should consider adopting some of the practices required or commended under the amended general construction standards.

One frequently-found practice to be avoided is storing acetylene cylinders in confined spaces, such as unventilated cabinets, closets, and drawers. It is recommended, also, that cylinders not be transported in automobiles, and that the valves on acetylene cylinders not be opened without a regulator and flow restrictor attached.

There are thousands of welding-related injuries annually, and statistically a high fatality rate amongst workers in this trade. Many of the rules are matters of common sense, such as keeping hoses and cables clear of passageways, ladders and stairs, inspecting torches at the beginning of each shift for leaking shutoff valves, hose couplings, and tip connections, and not taking acetylene or oxygen cylinders into confined spaces.

By taking advantage of improved technology and attention to the welding and cutting standards, this is one construction hazard that can be significantly reduced.

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.

As you probably know, OSHA has separate standards for general industry and construction. The general construction standards are Part 1910 of Volume 29 of the Code of Federal Regulations, and the construction standards are Part 1926.

Just because your company does what you regard as “construction work,” that doesn’t mean that the general industry standards never govern work that you do. Construction and modernization work generally fall under Part 1926, but maintenance and repair activities are governed by the general industry standards of Part 1910. It’s the nature of the activity being performed, not the primary line of work or other attributes of the employer, that governs.

For years, OSHA’s general industry standards have included rules for work in “confined spaces.” Such spaces are defined as:

• Large enough, and arranged in such a manner, that employees can enter;
• Having limited or restricted means of ingress or egress; and
• Not designed for continuous employee occupancy.

A primary feature of the general industry rules is the “permit-required” confined space. This refers not to a permit granted by a government agency, but procedures whereby the employer restricts who may enter certain hazardous confined spaces, and with what precautions.

OSHA’s general industry standard defines a “permit-required confined space” as one with at least one of the following characteristics:

• A hazardous atmosphere, or the potential to contain one;
• Material having the potential to engulf entrants;
• An internal configuration that could cause an entrant to be trapped or asphyxiated by inwardly converging walls, or a floor that slopes downward and tapers to a smaller cross-section; or
• Other recognized, serious safety or health hazards.

Further features of the general industry standard include warnings to employees; the identification and control of hazards existing in permit-required confined spaces, and the necessity for a comprehensive, written confined space entry program. Since primary confined space hazards include too little oxygen, or the accumulation of toxic or flammable contaminants, atmospheric monitoring, isolation and ventilation may also be required.

The general industry standard requires employees entering or supervising entry operations to be designated, trained and qualified, and that contractors be informed of hazards posed by entry. Required, also, is an emergency response plan.

Although applicable to maintenance and repair work, historically the general industry standards have not applied to construction work. Construction standards for trenching, excavation and tunneling operations, although having similarities with the general industry confined space standards, are governed by ¬ß 1926.651 (trenching and excavations) and ¬ß 1926.800 (tunneling).”

At present, the primary construction standard that applies to confined spaces is § 1926.21, which requires in part that:

All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and in the use of protective and emergency equipment required. The employer shall comply with any specific regulations that apply to work in dangerous or potentially dangerous areas.

The current construction standard defines “confined or enclosed spaces” to include, without limitation, “storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4′ in depth such as pits, tubs, vaults, and vessels.”

There exist additional, secondary construction standards that address confined space hazards in underground construction (Subpart S), underground electric transmission and distribution work (¬ß 1926.956), excavations (Subpart S) and welding and cutting (Subpart J). In the absence of a comprehensive OSHA construction standard, the CO’s accept compliance and training consistent with ANSI National Standard ANSI Z117.1-1989, “Safety Requirements for Confined Spaces” as satisfactory.

Things are expected, however, to change in the near future. After a glacial rulemaking process dating back to 1984, OSHA is expected within the next months to promulgate, as a final rule, a proposed new construction standard. The good news is that (in its “not quite final” form) on the merits, the new rule has much to commend it. The bad news is that it varies significantly from, and is more complex than, the ANSI standard which has been pretty much the de facto construction standard for decades. The proposed rule and explanatory material in the Federal Register ran to 49 pages (80 single-spaced pages, when printed out from the “Federal Register Online”).

OSHA’s rationale for having a distinct construction standard is based, among other considerations, on the evolving character of construction sites (with confined spaces changing, as the work progresses) and the characteristics of the construction workforce, with high turnover, employees performing short-term tasks, and working at multiple worksites.

While obviously I can’t fully describe the new standard fully (and significant last-minute changes could occur) some key differences between the new construction standard, in its current form, and the general industry standard are worth mentioning.

First, the construction standard is organized essentially in a chronological order, taking a step-by-step approach to assessing hazards, classifying the space, and how to safely enter it.

The new standard will require confined spaces to be classified as one of the following:

• Continuous System Permit Required Confined Space (CS-PCRS);
• Permit Required Confined Space (PCRS);
• Controlled Atmosphere Confined Space (CACS); or
• Isolated Hazard Confined Space (IHCS).

The PCRS is much the same as under the existing general industry standard. The CS-PCRS is one that is a part of, and contiguous with, larger confined space (such as a sewer) so as to require special precautions.

A “Controlled Atmosphere Confined Space” is one where ventilation alone should suffice to maintain atmospheric hazards at safe levels. The “Isolated Hazard Confined Space” is one in which all physical and atmospheric hazards have been “isolated,” which is to say eliminated or removed – such as by misaligning or removing sections of lines, pipes or ducts, installing guard rails, stairs or platforms to eliminate fall hazards, etc.

The proposed construction standard requires the “controlling contractor” to coordinate entry operations among contractors who have employees entering a confined space, even if the controlling contractor does not itself have employees who will enter it. Whereas the general industry standard provides for atmospheric monitoring “as necessary,” the new standard is more stringent, in that it requires continuous monitoring, unless it is affirmatively determined that periodic monitoring will suffice.

Employers will also be required to provide, calibrate and maintain PPE, as well as portable gas monitoring instruments, continuous air monitoring instruments for use during entry, air purifying respirators, self-contained breathing apparatus and supplied air systems, and entry and retrieval equipment for use by rescue teams in an emergency.

The new standard is more demanding, also, in that requirements for prompt rescue will require training and equipping on-site rescue teams, at locations where reliance on outside rescue professionals has hitherto been the norm.

This is a subject we’ll return to in future articles, but it definitely needs to be “on your radar,” even though its effective date has not yet been announced.

With warm weather returning, you should be thinking of your company’s responsibility to protect employees against the dangers of heat stress. As most construction trades involve outdoor work and/or exposure to high temperatures, if you don’t have a formal, written program, you need to develop one. And, if you do have a program, you should review it to ensure its adequacy, and consider extra training for your workforce.

While heat stroke is the most acute danger associated with exposure to high temperatures and humidity, heat stress poses many additional dangers. It lowers physical performance and mental alertness, and promotes irritability, anger, and inattention. It can also complicate many medical conditions. A particular danger of heat stress is that it can go unrecognized, and affected persons will often attempt to shrug it off, with dangerous or even fatal consequences.

In Secretary v. Post Buckley Schuh & Jernigan, Inc., the employer was a consultant in engineering and architectural design. The job at hand involved “archeological field work,” or surveying a site for artifacts. A team, consisting of archeologists or anthropologists, clears an area of brush, and uses hand shovels to dig 1-square-foot holes about 3 feet in depth. The extracted soil is then screened for artifacts, and the results recorded.

This work was in preparation for the installation of a 100-mile long pipeline in Texas, south of San Antonio. Employee “C.L.” had missed discussion of protection against the summer heat at an initial orientation. On his first day, his supervisor had returned to her hotel after being stung by a bee. C.L. and a second new hire were not, therefore, given any instructions regarding heat stress, other than an admonition to “take it pretty slow and easy” and to work “at any pace they could.”

As the temperature climbed from about 84¬∞ (with 63% humidity) toward an afternoon high of 97¬∞, the team members set about performing their “shovel tests.” Ms. Hopwood, the archeologist filling in for the absent team leader, checked on C.L. at roughly 10:30 A.M. C.L. stated he was “not feeling well,” and was instructed by Ms. Hopwood to sit down, rest, and drink some water. The only available shade in the immediate area was provided by small mesquite trees.

About 15 minutes later, Ms. Hopwood again checked with C.L. and, when he reported that he still wasn’t feeling well, she told him to go sit in the company truck (some 300 feet distant, on the main road) with the air conditioning on.

About an hour later, C.L. returned, said that he had drunk some water and eaten some almonds while sitting in the air-conditioned truck, and that he felt much better. Later, Ms. Hopwood would say that she found C.L.’s “exuberance” rather strange, but dismissed it as C.L. was viewed as rather odd, generally, wherefore his behavior was not seen as a sign of disorientation.

As lunchtime was approaching, Ms. Hopwood had C.L. finish a shovel test, and then asked him to return to the truck, and drive it near to where the team was working, so that the water cooler, which was in the truck, would be nearby. When C.L. did not return promptly, team members dispatched to look for him found him driving the truck, much too fast, up and down the dirt road. He had been unable to locate the team, even though he had gone to and from the truck scarcely an hour before.

C.L. spent much of the lunch hour in the air-conditioned truck, but between 15 and 30 minutes outside, exposed to the heat. About 20 minutes after work resumed, Ms. Hopwood checked on him and found that, although instructed to clear brush only in a 1′ x 1′ area, C.L. had cleared an area about 5′ x 9′. She found this to be very strange, but merely instructed him not to clear so large an area.

Again checking on C.L. at around 3:00 P.M., Ms. Hopwood founding him standing some 20 yards away from his test area, holding grass in his hand. He reported that he was “not lollygagging but feeling a bit disoriented.” She told him to go sit in the shade and drink some water; later, it was determined that he did not take any water.

About half an hour later, Ms. Hopwood again encountered C.L., who was unable to respond intelligibly to a question. She told C.L. to go sit in the air conditioned truck, and that the rest of the team would join him upon finishing work for the day, in about 20 minutes. C.L. said he thought that would be a good idea, and headed off in the direction of the truck, some 300 feet away.

When the crew headed back to the vehicles at about 4:00 P.M., C.L. was nowhere to be seen. Team members went looking for him, and found him, face down and curled up in a ditch, about 300 yards down the road from the truck. He was unconscious, breathing heavily, and hot to the touch. Team members poured water on him and applied wet handkerchiefs, while waiting for the ambulance.

C.L. was removed to the hospital, and died there a few days later. The autopsy found that his initial core temperature was 107.8° F.

Because there is not an OSHA standard directly on point, the employer was cited for a “Serious” violation under the General Duty Clause. The only doubtful element of a General Duty Clause violation was the existence of a feasible and acceptable method to abate a recognized hazard. The Secretary proposed that a “heat stress management program,” including “threshold limit values” and “biological exposure indices” published by the American Conference of Governmental Industrial Hygienists, and/or procedures set forth in a document entitled, “Working in Hot Environments,” by the National Institute of Occupational Safety and Health was such a method.

The ALJ found that the test as to both documents was whether their standards (1) had been adopted by the Secretary as a regulation or a consensus standard, or (2) recognized by the industry. With the help of expert witness testimony from both sides, the ALJ found that the NIOSH document (but not the ACGIH guidelines) had gained recognition in the industry, and should therefore be seen as establishing the existence of an acceptable means of abating heat stress.

Briefly, the six elements (the first five of which are contained in the NIOSH document, “Working in Hot Environments”) (available online) are these:

1. Acclimatize employees beginning work in a hot environment, or returning from absences of 3 or more days. Increments are not provided, but adjusting to heat generally takes 5-7 days.
2. Development a work/rest regimen. How much rest following how much work is not stated, but the concept is that there should be rest periods at regular intervals, in lieu of requiring workers to ask for permission to rest. Brief, but frequent, rest periods are best.
3. Provide cool water and encourage employees to drink 5-7 oz. of water every 15-20 minutes. Do not rely on employees’ drinking water only when they are thirsty.
4. Provide for a cool rest area. A maximum temperature of 76° F. is recommended. The ALJ was troubled that, in the case before him, the air-conditioned company truck could take up to 15 minutes to reach on foot.
5. Train employees regarding health effects of heat stress, symptoms of heat-induced illnesses, and methods of preventing such illnesses. In addition to training employees, you should keep written records, with the names of employees trained, and dates.
6. Establish a screening program to identify health conditions aggravated by exposure to heat stress.

While the ALJ did not accept item (6) as recognized by the industry and the respondent (as the same does not appear in the NIOSH Document) the employer’s heat stress management program was found deficient as to all of items 1-5, and so the citation and penalty were affirmed.

The ALJ rejected the employer’s view that all elements of its program need not be in writing. “Without written policies to facilitate training…or to provide employees with the [employer’s] expectations, respondent cannot have an effective heat safety program.” This statement probably doesn’t have the full force of law, but your program will be more effective, and you will be better able to demonstrate compliance with the OSH Act’s training requirements, if your program is in writing.

The OSH Act imposes on employers a duty to train employees to recognize and avoid recognized safety and health hazards in the workplace.

Full-bore formal training for the rank-and-file in the dizzying array of OSHA construction standards is problematic. Studies have shown that even the OSHA 10-hour and 30-hour courses have limited effectiveness, among other things because these (as well as many programs designed by safety consultants) assume a higher level of sophistication than the attendees possess, and befuddle many of them with an excess of jargon, acronyms, and “buzzwords.” A further problem is that many construction workers, in the New York metro region as in many other parts of the country, have limited proficiency in English.

OSHA compliance is important, but the paramount goal of your company’s safety program is not to avoid OSHA citations, but to minimize injuries and job-related illness among your workforce. While there is no comprehensive “one size fits all” strategy, elements I recommend for consideration include the following.

First, without suggesting that you forego efforts to train all your workers, I believe it gets you more “bang for the buck” to hire, strive to retain, and train thoroughly field supervisors in OSHA compliance and construction safety.

Second, while you can be cited for any of scores of distinct construction hazards, a relative handful of dangers account for most deaths and serious injuries (and most OSHA citations, as well). Fall protection, scaffolding, excavations, “caught-between” and “struck-by” hazards, unsafe ladders and usage of ladders, and electrocutions are the primary construction safety issues. Nearly every construction employer will be cited by OSHA from time to time, but your employees’ onsite conduct, in recognizing and avoiding the hazards mentioned, is probably the best indicator of whether your company is a safe place to work.

Conversely, you can spend on glossy manuals and consultants, but if your employees work on elevated surfaces without tying off, or go down into unshored trenches, you’re not getting the job done.

An indispensable element to safety success is leadership. Everybody in your employ should be absolutely convinced that his or her safety is a major concern of ownership and management. This implies that supervisors will be knowledgeable concerning OSHA requirements, but also that they be encouraged to call out, and to discipline, workers who disregard safety rules.

A fundamental part of every company’s safety program is so-called “toolbox” (or “tailgate”) meetings, at which safety issues are discussed. Such meetings should not only not be neglected, but they can be done in a way that imparts important information, while stressing a genuine concern for worker safety, or in a way that suggests that you are just going through the motions.

Toolbox meetings should be kept short (5 to 15 minutes) but they should not be done perfunctorily. The beginning or end of the work day is generally the best time to have them. After everyone has clocked in on the morning of the first workday of the week is probably ideal. The meeting should be held in a comfortable area where the presenter can be heard, and extraneous noise and distractions are at a minimum. Whether to have such meetings with your entire workforce, or in small groups of workers who work together, or perform similar tasks, is a judgment call that should take into account many factors, to include logistics, scheduling conflicts, potential language issues, and the desirability of getting employees actively involved in the discussion.

Every toolbox meeting should be memorialized in writing, attendees’ names should be legibly recorded on a sign-in sheet, and the name of the presenter, and the subject(s) discussed, should be recorded (and don’t forget to write down the date!) These records should be preserved. One reason for them is to document training for purposes of OSHA compliance, but another is that critical topics – such as fall protection and the others mentioned above – need to be repeated, necessitating a record as to when each such subject was last discussed. Additionally, the regular presenter may be unavailable on a given day, or need to be replaced more permanently. His or her replacement should know which topics have been covered.

The best topics are, obviously, ones that are relevant to current working conditions. While hand-outs are a good idea, reading in a flat tone of voice from a manual is not. The presenter should review in advance, and understand, the topic to be discussed. Employees should be encouraged to ask questions, and to recount experiences or observations related to the topic. Questions to which the presenter does not know the answer should be checked into, and reported on at the next meeting. Each meeting should begin with a brief review of what was discussed at the preceding meeting, for the benefit of employees who may have been absent.

Certain topics (medical emergencies in particular) should be gone over briefly, not less than once a month. This will often include reminding employees as to the location of first-aid equipment, how to summon first responders, how to respond to electrical shocks, and the location of fire extinguishers.

In addition to the topics mentioned above, additional topics can be adapted from the OSHA 10-hour materials, or from a wide variety of commercial and online safety resources.

One resource I came across that looks highly useful is the website safetyawakenings.com. That site offers free access to a menu of about 300 safety topics, with short outlines in both English and Spanish. The topics include both general industry and construction topics (wherefore, not all 300 will be useful) and was compiled especially for use in California. Nevertheless, it’s a terrific source of ideas for meetings and hand-outs (and bilingual as well).

Brief toolbox meetings should complement, not substitute for, more in-depth safety training. They’re important, however, both for the information they impart, as well as being a frequent reminder that safety should be kept in mind at all times.

OSHA compliance can be doubly thorny whenever your company is working in collaboration with, or in proximity to, operations of another employer of the same “tier.” This is especially so, if the other company’s trade is one you don’t often work with. While you probably know that OSHA imposes a duty to protect your employees against hazards created by others, you may lack sufficient familiarity with the other trade to feel qualified to question the other employer’s procedures. Plus, obviously, you lack authority to direct the other employer’s activities, and may feel the need to defer in the interests of advancing the project.

The better practice in such situations, however, is to err on the side of safety, and to make all inquiries necessary to detect potential hazards to your employees from hazards created by others.

In Secretary of Labor v. Associated Underwater Services, the respondent (“AUS”) was a commercial diving company, and a subcontractor to British Petroleum in the construction of an oil containment boom off the coast of Washington.

Another sub, General Construction (“GC”) was installing metal pilings in the ocean floor, at a depth of 140 feet, as structural support for the containment boom.

Because the piles had to be installed at “slack tide,” and AUS’s hourly costs were higher than those of the GC crew, AUS arrived onsite only when GC employees had completed the work of taking each pile, by barge, to the place where it was to be installed, and lowering it into the water. Each pile was 22 feet long, and weighed about 8,600 lbs.

The piles were driven into the sea floor by one of two methods: an “impact hammer” and a “vibratory hammer.” On the day of the occurrence, it was the vibratory hammer that was in use. This device is secured to a crane on the barge, controlled by a network of hoses, and fastened by a hydraulic jaw to a “pad eye,” or steel plate welded to the top of the pile. The hammer, when activated, causes the piling to vibrate at 25 vibrations per second, while downward pressure from the weight of the hammer causes it to work itself into the sea floor.

Once the piling had been lowered in place, GC raised it by 1-2′, and an AUS diver, Chris Primeau, entered the water, and followed hydraulic control lines down to the location of the piling. His first task was to ensure that the area beneath the piling was free from obstructions.

The procedure was that, once the diver had determined that the place where the pile was to be driven was unobstructed, he would radio instructions to GC to lower the piling, until it reached its “point of refusal” in the ocean floor. This was the depth in the ocean floor that the piling would reach, through the force of its own weight, and the weight of the hammer.

Then, the diver would instruct GC to activate the hammer. During the approximately six minutes necessary to drive the pile to the required depth, the diver either had to remain in place near the base of the piling, or ascend a few feet to a position above the piling ? in which case, he periodically had to ask GC to stop the vibration of the hammer, to permit him to return to the base of the piling, to verify that it was being driven plumb. (Visibility at that depth is only about 3-4′).

If, at any time, the AUS diver observed any problem with the piling, he could transmit an “all stop” to the Dive Supervisor on the barge.

The vibratory hammer GC was using had jaws that opened to a maximum of 1.17″, but the thickness of the pad-eye, to which it was clamped, was 1.25″. OSHA later determined that GC employees had to “beat on it every time,” indicating that something was obviously wrong with the connection between the hammer and the 8,600 lb. piling. However, no evidence was presented that AUS was aware of any such “beating” of the hammer onto the piling, or should have suspected that GC would use a hammer .08″ too small to properly connect to the piling.

On the day in question, Primeau’s dive was preceded by the customary pre-dive “toolbox” meeting, which did not address any hazards associated with suspended loads, or diving near crane and pile-driving operations. A falling piling, both sides’ experts later agreed, is not a “general type of diving issue common to all diving.”

Once in the water and at the base of the pile, Primeau reported that too much of the cluster of hoses that control the hammer’s functions had accumulated in the water. While GC adjusted the hoses, Primeau, with the approval of his Dive Supervisor, disconnected a wire cable that GC had, for the first time on the project in question, affixed to the piling before lowering it into the water.

That accomplished, Primeau returned to the base of the piling, and gave the go-ahead to activate the hammer. Within seconds, Primeau radioed an “all stop,” and his video feed was lost. The pile had come loose from the hammer’s damaged jaws and had fallen on him, killing him.

Of three citation items that OSHA issued following this accident, the only one that came to trial requires a pre-dive assessment of the safety and health aspects of surface and underwater conditions and hazards.

The Secretary asserted that a reasonably prudent employer would have assessed hazards arising from GC’s pile-driving operation ? notably, the recognized hazard of a falling piling. GC’s written safety program called for employees to be kept clear of the fall radius, and the vibratory hammer’s operating manual cautioned that a safety line should always be attached to the pile, when extracting or hoisting it into position.

Indeed, a warning sign on the hammer itself, which AUS’s dive supervisor admitted he saw at the worksite, forbade the use of the hammer as a pile-lifting device, and cautioned that falling piles could result in serious injury or death.

At the trial level, the ALJ vacated the citation, agreeing with AUS that it was responsible only for assessing hazards from its own diving activities, and that it could not foresee that GC would use a hammer with damaged jaws, or jaws too small to securely grip the pad-eye.

On appeal, however, the Commission reversed and upheld the citation, finding that it was legally irrelevant whether the accident, or its precise cause, was foreseeable. The hazard was that the piling could fall, not that the jaws of the hammer were too small.

The Commission ruled that AUS had been assisting GC with work plainly within the definition of construction, and was therefore required to assess not only potential hazards unique to the commercial diving industry, but also construction hazards created by its fellow employers.

Had AUS inquired into procedures for installing underwater piles, it would likely have found that construction industry practice requires the use of safety lines between the piling and the crane. Especially where low-visibility conditions require the diver to carry out much of his work in close proximity to the pile, safety lines securing the pilings, until they were driven deep enough to stand on their own, are indicated (although, startlingly, they are not a consensus standard of the Association of Diving Contractors International).

The lesson here, of course, is that OSHA compliance, and protecting your employees from injury or death, requires that you make all necessary inquiries to detect and assess hazards to which your employees may be exposed, even if they are not peculiar to your trade, and are created by others.