OSHA ¬ß 1926.21(b)(2) requires employers to “instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”  A few months back, I noted a marked increase in “failure to train” citations under this regulation.

OSHA has always had built-in tension between its aspiration to provide a safe workplace for every worker in America versus the practical impossibility of achieving zero workplace injuries (not to mention political and economic constraints on burdening employers).

OSHA’S basic regulatory framework has traditionally consisted of a host of specific requirements, plus ¬ß 5(a)(1) a/k/a the “General Duty Clause.”  Although certainly wide-ranging, OSHA’s specific standards cannot address every situation.  Accordingly, the principal “gaps” (but not every conceivable hazard) are intended to be filled in by the General Duty Clause, which requires each employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

The General Duty Clause is itself an embodiment of the tension found throughout OSHA.  It purports to be expansive, on the one hand, as it imposes obligations on employers beyond those in OSHA’s myriad specific requirements.  Pressing in the opposite direction, however, are limits on its scope.  Although sometimes described as a “catchall” provision, it wasn’t truly designed to be that.  The General Duty Clause doesn’t say that the detection by an OSHA compliance officer of a hazard, not covered in any specific standard, equals a violation.

As applied in the cases, establishing a violation of the General Duty Clause requires proof of four elements:  (1) an actual hazard that the employer failed to prevent or remove; (2) that the hazard in question pose a threat of serious injury or death; (3) that the hazard be “recognized” (essentially, that it be actually known to the employer, generally recognized in the employer’s industry, or patently obvious) and (4) that there be shown a feasible and useful means to correct the hazard.

OSHA’s increasing resort to “failure to train” bespeaks, I suspect, not so much an enhanced appreciation of the blessings of training, as a creative use of the regulation to fashion an equivalent to the General Duty Clause, minus the inconvenience of having to prove elements (2), (3) and (4).  “Failure to train” has become something closely approaching a true catchall, imposing liability wherever there is a hazard to which employees were exposed, which the employer could have identified with the exercise of “reasonable diligence.”

For example, in Lane Construction Corp. (2009) the administrative law judge upheld a citation for “failure to train.” In that case, the employer was performing a nighttime milling and paving operation on a rural stretch of U.S. 98 in Florida.  A crew was assigned to close the northbound lane of the two-lane highway.  Employee Felipe Felix-Espinaldo took, from a flatbed truck parked on the southbound shoulder, a “Maintenance of Traffic” sign 6’6″ tall and weighing 20 to 30 lbs.  As Felix-Espinaldo entered the unlit northbound lane, at night and on foot, carrying the unwieldy sign and headed for the northbound shoulder, he was struck by a car and fatally injured.

OSHA cited Lane for failing to train its employees in “the proper method of carrying road signs across active roadways to prevent visual obstruction of on-coming vehicles.”¹ In affirming this citation, the ALJ rejected the employer’s arguments (1) that the “failure to train” standard was inapplicable because there is no standard regulating the proper way to carry road signs; and (2) the necessity to look both ways before walking into an active lane of traffic is “not something that an adult in the working world should have to be told.”  The Secretary, the ALJ ruled, may properly cite the “failure to train” standard even in the absence of a specific standard addressing the underlying condition.²   The obviousness of the danger, she held, does not negate the need to provide employees with adequate safety guidance.

The ALJ in Lane relied upon a prior case decided by the U.S. Court of Appeals for the Sixth Circuit, W. G. Fairfield Co. (2002).  In Fairfield, the court upheld a “failure to train” citation, where a worker perished while trying to cross six lanes of traffic on foot on Interstate 71 in Ohio.  In part because I have considerable difficulty with Fairfield on its own merits, I have a problem with Lane insofar as the latter relies on it.

Supposedly (or so the Court of Appeals in Fairfield held) “in determining the adequacy of an employer’s instructions under OSHA, the primary inquiry is whether the employer’s program of safety instruction provided adequate guidance.”  If correcting or avoiding the hazard be the purpose to which instruction must be “adequate,” and no specific OSHA standard applies, I think it is neither fair to the employer, nor precedent beneficial to employers and courts in future cases, to uphold a “failure to train” while providing no guidance, or minimal guidance, as to what instructions would be adequate (and useful) in the circumstances.

Confusingly, all of the ALJ, the OSH Review Commission, and the Court of Appeals upheld in Fairfield the “failure to train” citation, while disagreeing as to the permissibility of ever trying to cross a six-lane interstate on foot, and avoiding all but a single, not-very-useful hint as to just what employees ought to be told.

The ALJ agreed with both the OSHA compliance officer and a sheriff’s deputy who testified as an expert witness that “no reasonable person” could have ventured to cross, on foot, six lanes of interstate highway with traffic traveling between 55 and 70 MPH.  The OSH Commission disagreed, however, that an outright ban was indicated, but upheld the citation, finding that the hazard was obvious, and gave rise to a duty on the employer to instruct employees, especially as at least one “potentially safer alternative” (traversing the interstate in a vehicle) was known to it.

Notwithstanding that the ALJ, the compliance officer, and the sheriff’s deputy had (no doubt unintentionally) provided considerable support for this position, the Court of Appeals rejected the employer’s argument that the undeniably obvious hazard of walking into six lanes of high-speed interstate traffic was too obvious to require safety instructions.  While finding that the employer’s sin was that it allowed its employees to exercise “unfettered discretion on when to cross on foot” and in failing to offer “adequate guidance about how and when to do so,” the Court itself completely failed to provide illumination as to the necessary content of such “adequate guidance,” except to note that using a vehicle might sometimes avoid the hazard.³  Had the factual scenario in Fairfield been analyzed under the General Duty Clause, I doubt that a court could have upheld a citation without a fuller, and therefore more instructive, discussion of the practicalities of avoiding or correcting the hazard.
Fairfield would seem to be dubious precedent to support Lane, most obviously as six lanes of heavily-trafficked interstate pose different safety considerations than a two-lane, rural highway.

Lane impresses me as unwise, also, for its emphasis on the manner of carrying the road sign, a matter of secondary importance.  In the absence of prominent warning signals (and reduced speed restrictions) even with only two lanes to traverse, and visibility not further limited by poor weather or curves in the roadway, I think it is always an unacceptable risk to permit anyone to venture on foot into an unlit, active traffic lane at night, while bearing any large, heavy, or unwieldy object.  And, if there are instances in which it is reasonable to require employers to warn against risks that would be very obvious to many, Lane I think surpasses the limits. Walking into an unclosed, high-speed traffic lane, even in bright sunshine, with a large, clumsy object even capable of being carried so as to obstruct one’s view, is not something a grownup in the working world should have to be told not to do.

Finally, there is a touch of perversity in OSHA expanding its use of “failure to train” as a basis for citations, in the measure that, by purposefully skirting use of the General Duty Clause, its citations result in lessguidance (which is all the more significant given the non-existence of specific standards to refer to).  In addition to being unfair to employers, such corner-cutting disserves the cause of protecting workers from injury and death.

A safety precaution that sometimes “falls through the cracks” is the necessity to ascertain, before moving heavy equipment around on a jobsite, that the composition, and the condition, of the surfaces on which the equipment will be moving will withstand the weight of the equipment fully loaded.

In Secretary v. Central Florida Equipment Rentals, Inc., the employer was performing a subcontract on a waste water treatment facility in South Florida.  The job was to raise each of three manmade berms abutting retention ponds by about six inches.

CFER’s foreman, Villa, decided to carry out the job by using a wheel-mounted Caterpillar 725 to unload the fill in the top of the berms.  Then, while the Cat circled around the retention pond to bring in the next load of fill, a bulldozer would spread the prior load, by driving over the berm.  That would continue until the berm reached the required height.  A roller would then pass over the berm, to compact the soil. 
The Cat used on the berms measures 9.5′ wide from wheel to wheel.  It weighs a little over 49,000 pounds unloaded.  Fully loaded, it has a capacity just over 101,000 lbs.
The configuration of the berm was such that, at places, the Cat would have to be operated close to the edge, with only about 1.5 feet of clearance on each side.

CFER was told nothing by the owner, or the general contractor, regarding the condition of the berms, the composition of the soil, or whether the berms could support the weight of the Cat.  CFER was sufficiently concerned that there might be some issue regarding the points just mentioned, because Villa instructed employees not to fill the Cat to capacity.  However, no one at CFER made any inquiry to the public owner regarding the capacity of the berms, and did not direct employees to weigh their loads.  When the citation came to trial, it was noted that no one maintained the berm to regularly handle vehicle off-highway vehicle traffic in a safe manner.

CFER employee Tod Laroche, an experienced operator, was operating the loaded Cat near the edge of the berm at about 1:30 P.M. on a bright sunny afternoon when a portion of the berm grave way, causing the Cat (with Laroche strapped into the cab) to plunge into 20 feet of water in the retention pond.  Villa had walked the berm that morning and found that the same was fairly level, and without significant holes.  Villa did not test or evaluate the berm material, and it never occurred to him to inquire about its compactness.  It was Villa’s decision to have Laroche drive the loaded Cat onto the berm, but Villa admitted he did not know the weight-bearing capacity of the berm, the combined weight of the Cat and its load, how steep the berm was, the depth of the water in the pond, and whether there was any soil erosion on the side of the berm next to the water.  He underestimated the width of the Cat slightly.

Villa was not onsite when Laroche plunged into the pond in the Cat and, indeed, no one witnessed the accident.  Police and divers were summoned when employees saw the Cat in the water, but it took rescue workers until 4:30 A.M. the following morning (and three tow trucks) to pull the Cat, and Laroche’s body, from the pond.

CFER was cited for a “Serious” violation of an OSHA standard that prohibits moving construction equipment or vehicles upon “access roadways or grades” not constructed to accommodate safely the movement of the equipment and vehicles involved.

CFER contested the citation and penalty, and the matter came on for trial before an Administrative Law Judge.  OSHA’s compliance officer, Lopez, testified among other things that the probability of an accident was increased because the weight of the Cat’s load was concentrated under the vehicle’s tires.  Especially as the berm was made of pre-disturbed soil, Lopez likened it to a trench.  OSHA’s standards do not permit static loads (such as spoils piles) within two feet of the wall of an excavation.  Here, it was noted, the Cat represented a live load, that was only about 1.5 feet from the edge of the berm.

It was noted also at the trial that the manual for the Cat cautioned users, among other things, to know the machine’s dimensions; to operate the machine only with adequate clearance; avoid coming close to the edges of cliffs and embankments; and that rocky surfaces may cause side slipping.

The ALJ characterized CFER’s plan to use the Cat 725 atop the berms as a “recipe for disaster,” but acknowledged that, where the employer made efforts to comply with a performance standard and the Secretary argues that its efforts were deficient, it is incumbent on the Secretary to demonstrate where the employer’s efforts fell short, and what it should have done to comply.  The ALJ agreed with the Secretary that CFER should above all have made appropriate inquiries to determine whether the berm was constructed or maintained to accommodate its choice of vehicles.

The ALJ also turned aside several defenses proffered by the employer, among other things rejecting an argument that the berm was not a “road” for purposes of the standard cited, and a defense of “infeasibility.”  The latter defense required that CFER prove either that the job could not be done without the Cat 725, or that not using that equipment would present a greater hazard.

The “infeasibility” defense was quickly dispatched by proof that, following the fatality, the work was completed by delivering and dumping the fill at the near limit of the berm, and using a bulldozer to push the fill out onto the berm.

The citation was upheld as “Serious” and the monetary penalty proposed by the Secretary was approved.

Especially when it is proposed to operate equipment weighing up to 50 tons on surfaces that, being man-made, are inherently likely to be unstable, you can’t simply determine that the surface in question is safe by eyeballing it.  In such a case, you need an engineer’s input, plus documentation that technically adequate inquiries were made.  That applies tenfold when the intended use is close to any precipice or body of water.

In the CFER case, unfortunately for operator Laroche, his employer cut corners first by making no inquiries regarding the capacity of the berm, and second, by selecting the Cat 725 in large part because its greater capacity was expected to speed the job.

As OSHA nears its fortieth birthday, the agency and affected constituencies are taking stock of what OSHA and the OSH Act have accomplished, and the likely direction of enforcement efforts under the Obama Administration.

The OSH Act became law toward the end of the 30-year postwar period that followed World War II, and at the end of a decade that saw unprecedented initiatives intended to benefit minorities, working people and the disadvantaged.  The OSH Act was the product of bipartisan collaboration in Congress rarely if ever seen in recent years, and was signed into law by Republican President Richard M. Nixon.

Many changes in the economic and political landscape have come about since the 1970s.  I don’t think anyone would claim that OSHA has even approached the goals envisioned by its drafters.  Still, traumatic workplace deaths fell by half under OSHA (as the workforce grew by 60% and more), a substantial achievement.  And, through thick and thin, under Democratic and Republican administrations, since 1970 employee safety has always enjoyed at least some place on the national political agenda.

In the minus column, the OSH Act’s goal of assuring safe and healthful working conditions for American workers remains far from full realization.  Confirmation requires nothing more than pointing to the fact that, during OSHA’s first quarter-century, approximately 294,000 Americans died of traumatic injuries in the workplace.

Traumatic deaths, moreover, are just the tip of the iceberg:  most occupationally-related deaths are due to illness resulting from exposure to workplace chemicals or toxins.  They often become manifest years or decades after the exposure, and are seldom recorded in an employer’s OSHA 200 Log, or by the Bureau of Labor Statistics.¹ 

While some claim that OSHA trails only the IRS as America’s least-beloved federal agency, the lore concerning Kafkaesque regulations and over-zealous enforcement personnel is larded with propaganda.  What OSHA really does have in common with the IRS is the necessity to rely, for the most part, on voluntary compliance.  OSHA has never enjoyed ample staffing, or generous funding, but on the whole it does a creditable job of leveraging the limited assets that it has. Less than religious adherence to OSHA standards remains, certainly, widespread.  I have heard clients complain, sometimes rightly, about citations they believed lacked justification.  Nevertheless, while OSHA compliance is often fitful (and seldom enthusiastic) almost no one expresses contempt for the idea that employee safety is a good thing, or even that there is a government agency that works to promote it.

For several years, momentum has been gathering to increase the number of OSHA inspections and “SWR” (Serious, Willful and Repeat) citations, and to increase both monetary penalties generally, and criminal penalties — if only for “Willful” violations that result in employee fatalities.

One area which appears to be targeted for increased enforcement is OSHA’s (many) record-keeping requirements.  These are “low-hanging fruit” for OSHA inspectors (as few employers’ records are above reproach).  Moreover, brazen book-cooking is believed to be widespread, many employers keeping two sets of records (one for OSHA and the company’s Workers’ Comp insurer, and the other for its health clinics).

Locally, the word is that area OSHA offices are hiring considerable numbers of new enforcement personnel.  In our firm’s practice we are already seeing greater willingness on the part of compliance officers to cite OSHA violations as “Willful,” and less readiness to bargain such citations down to “Serious” ones.

We’re seeing also an uptick in the number of citations alleging violations of the many OSHA provisions requiring that employers train their forces to recognize and avoid health and safety hazards.  Not only is “failure to train” increasingly cited as an OSHA violation, but we detect at least some willingness on the part of OSHA to look to test the sufficiency of detail in an employer’s training program directed to a particular hazard (even where the extent of the regulatory mandate is uncertain).

I’ve always encouraged my clients and readers to train (and re-train) employees.  One reason I’m so adamant about repeat training is that it’s one thing to spend for a glossy, state-of-the-art company safety manual, but quite another to get your 21st century workforce to understand and observe even the fundamentals.

Critics of American educational and social institutions would argue that many young people have limited verbal skills, don’t comprehend complex instructions, and resist obeying them even if they do.

Also, employment relationships are in general more transient than they were circa 1970 when the OSH Act became law, and it’s not a given (certainly in the New York metro area) that a company’s workforce will even have a common language.

The Tower-of-Babel situation resulting from decades of high immigration levels obviously makes effective training more difficult.  An example of how pitiful the laws’ response to the diversity “explosion” has been is that defendants in certain kinds of civil litigation (notably, consumer collection and landlord-tenant matters) are required to be served with a bilingual summons, in both English and Spanish.

While such requirements are no doubt well-intentioned, it’s almost comical to see judges fretting over whether Gujurati, Yiddish and Fujian-speaking defendants have been duly served with papers written in Spanish.  And while it’s praiseworthy that some employers have paid to produce editions of their company safety manuals in Spanish, the last census counted 322 languages in daily use in American households.  Most of those linguistic groups are small and many are tiny, but if you’re running a substantial construction project in the NYC metro area, chances are that the workforce will include speakers of (in addition to English and Spanish) Korean, several varieties of Chinese, Haitian Creole, Urdu, Russian, Bengali, Arabic, Punjabi, Portuguese (European, Brazilian and African varieties) French (including its African varieties, plus Qu√©becois) and others.² 

A further complication is that OSHA regulations have an extensive and exotic jargon.  Not only have many regulations technical aspects not readily understood by laymen, but there lots of acronyms, specialized terms and “buzz words” in OSHA parlance.  

Studies as to how much of the information imparted during the OSHA 10-hour course is really absorbed have yielded discouraging results.  One tested not rank-and-file construction workers, but students in a master’s program in construction management.  The proportion who achieved a grade of Satisfactory or better, after sitting through the OSHA 10-hour course, was only about twenty percent.  A less highly-educated group of Spanish speakers produced no test-takers achieving “Satisfactory” scores.

While training employees effectively is a problem you can’t avoid wrestling with, policy should take into account both the harsh economic climate and the difficulties (most of them due to larger forces, over which employers have no control) of getting bang-for-the-buck, true comprehension, from safety training outlays.  This, I believe, is not an opportune moment to abruptly raise the bar, or to instruct OSHA compliance officers to issue large numbers of citations to push the limits of how much detail must be taught, especially as to hazards that account for few injuries and fatalities.

As your paramount goal should be to minimize employee injuries, not exposure to citations, consider focusing on your field supervisors.  Whatever difficulties there be in bringing your entire workforce to an optimal level of OSHA knowledge, you can give your field supervisors the most comprehensive training you can afford, plus an unambiguous mandate to enforce safety rules.  While priorities vary according to trades, the perennial evils are falls, excavation cave-ins, “struck-by” hazards, and electrocutions. If OSHA is stepping up inspections, it’s just plain dumb to have anyone, ever, working aloft without fall protection, or in an unshored trench.  A review of OSHA record-keeping requirements applicable to your firm should be on your “To Do” list as well.

Although many construction hazards have their very own OSHA standards, even in the absence of a standard directly addressing a particular worksite hazard, the same may be subject to OSHA’S “General Duty Clause.”

 “Struck by” incidents being a major class of construction site injuries, OSHA compliance officers are attentive to the hazard of employees being struck by rotating or swinging parts of cranes, drilling rigs, and other types of heavy equipment.  A recent case illustrates one type of “swing radius” hazards not covered by any specific OSHA standard, but falling within the General Duty Clause.

OSHA has never pursued the unachievable elimination of all conceivable workplace dangers, but does requires workplaces free from recognized health and safety hazards.  One aspect of this policy is the “infeasibility defense,” which may apply where full, technical compliance with a standard is infeasible.  This defense is discussed in the second of the two cases discussed below.

In Secretary v. A. H. Beck Foundation Co., Inc., the employer was drilling 55-foot foundation pier holes for a bridge.  The employer was using a track-mounted mobile drilling rig.  After each dig, the operator would swing the bucket on the end of the rig arm 90 degrees to one side, to dump soil into a designated area.  

Although the employer was aware of red-tape barricades as a precaution against swing radius hazards, it had no such barricades in place in the area where its drilling rig was in use.  Its superintendent testified that such barricades were used only where there was too much activity, or too many pieces of equipment, to permit a “stim man” to safely act as monitor.  A. H. Beck’s “stim man” was responsible to constantly monitor the rig, and to ensure, by exchanging hand signals with the operator, that the rig did not rotate, unless and until all employees were clear of the swing radius area.  Employees were trained to position themselves outside the rig’s swing radius every time the drilling rig was about to rotate.  The rig rotated slowly — 3 RPM maximum — and had multiple, large warning signs stating “Danger.  Keep Out of Turning Area.”

Swing radius hazards on this type of equipment do not fall under any specific OSHA standard.  Because, however, they are a hazard recognized by the employer or its industry, they are governed under the OSH Act’s General Duty Clause.  Section 5(a)(1) of the OSH Act states that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  To sustain the citation alleging a violation of the General Duty Clause, the Secretary had to prove that (1) a condition or activity in the workplace presented a hazard to employees; (2) the employer or its industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.

Elements (1) through (3) of the violation being conceded as obvious, the question of whether the employer had violated OSHA in A. H. Beck turned on whether it had sufficiently protected its employees by the use of a “stim man,” together with the warning signs and employee training.

At trial, the Secretary acknowledged two recognized (but not exclusive) means of protecting employees against swing radius hazards.  The first (“Abatement Method A”) is, essentially, to barricade all accessible areas of the swing radius of the rotating structure of the drilling rig.  An alternative, “Abatement Method B,” is recognized “during operations that require the equipment to be constantly moving,” and requires “any available alternative precautions” to include the posting of signs, instructing employees in the dangers of both swinging parts of the equipment and “pinch points,” instructing operators to swing only on signals from a foreman or designated signal man, and requiring employees not to move a rig, until they know the area is clear.

The Secretary’s argument in A. H. Beck was that “Abatement Method B” was not available to the employer, because its drilling rig was not “constantly moving.”

The Administrative Law Judge held that the Secretary had failed to demonstrate a violation of the General Duty Clause, rejecting its “constantly moving” argument on two grounds.

First, the ALJ stated, the rig in question was mobile.  It was “constantly moving,” as part of the digging and excavation process, and no piece of heavy equipment performs its primary function without stopping to perform other, associated activities.  The Compliance Officer had conceded that he would consider the rig to be “constantly moving” (and thus eligible for Abatement Method B)  if it were stopping repeatedly to drill a series of 6-foot deep holes, because it would not then remain in place for a long period of time.  The ALJ found arbitrary the Secretary’s position that “constantly moving” encompassed numerous stops to drill 6-foot holes, but not a single stop to drill a 55-foot hole.

The ALJ found also that the General Duty Clause does not limit employers to abatement methods recognized in prior cases, but not comprising part of the regulations.  It being conceded that the employer had essentially put “Abatement Method B” into effect, the ALJ found no reason to conclude that the same would be effective when the rig was mobile, but not when it was stationary.  After all, the judge observed, the mobile rig presents two swing radius hazard possibilities:  (1) that employees will walk into the swing radius of the rig’s rotating parts; or (2) that the rig itself will bring the hazard to employees, by maneuvering into an area where employees are present.  If one were to accept the argument that the rig in question was stationary, the ALJ concluded, given the Secretary’s concession that the use of signs, training and signaling watchmen would be effective abatement for a mobile rig, the same would necessarily be effective abatement for a stationary one.

In Secretary v. J. F. White Contracting Co., the employer was cited for a violation of 29 C.F.R. ¬ß 1926.550(a)(9), which requires that “[a]ccessible areas within the swing radius of the rear of the rotating superstructure of the crane, either permanently or temporarily mounted, shall be barricaded in such a manner as to prevent an employee from being struck or crushed by the crane.”  The usual, approved method of barricading involves attaching 10-foot long pipes to the tracks of the crane, with caution tape placed at the ends of the pipes.

The employer pleaded the affirmative defense of infeasibility of compliance, arguing that the crane was not barricaded because it was to be used in an area where it was too narrow to place barricades in the usual manner, and still be able to rotate the crane.

The infeasibility defense requires proof that the means of compliance under the applicable standard were infeasible, in that (a) their implementation would have been technologically or economically infeasible, or (b) necessary work operations would have been rendered technologically or economically infeasible by their implementation.  In addition, the employer must show either (a) that is employed an alternative method of protection; or (b) that there existed no feasible alternative means of protection.

The ALJ in J. F. White found that the employer had successfully shown that technical compliance (using the usual method) was infeasible, but that the defense failed nonetheless, because its use of employee spotters provided a lesser margin of safety than the available alternative means of using PVC poles and yellow caution tape as a physical barricade.  By not   making the barricade, the ALJ found, the employee had failed to do everything it could to reduce employee exposure to the rotating superstructure of the crane.  Accordingly, it was not entitled to the benefit of the infeasibility defense.

Thus, whenever you recognize a hazard not covered by a specific OSHA standard, the General Duty Clause requires you to abate it, if feasible.  And, while there exists an infeasibility defense under the statute, it’s an issue on which the employer has the burden of proof, and it must prove not only the infeasibility of strict compliance, but that the best alternative means of protection were employed (or that no alternative means were feasible).

As OSHA nears its 40th birthday, most Americans are too young to recall that this program, today seen as a familiar part of the landscape, was enacted only after a pitched three-year battle, following skirmishes and forays into the area of federal regulation of workplace conditions reaching back to the later years of the 19th century.

The years preceding the enactment of OSHA, the mid-1960s, were a propitious time for renewed federal efforts.  Not only was Congress considering, and passing, civil rights and environmental laws which would have been unthinkable just a few years before, but workplace conditions of the time served as a spur to the effort.

That is to say, America was still an industrial economy in the 1960s, and the long-extant dangers of the belts-pulleys-and-gears technology of the early 20th century were being joined by an array of more newfangled (largely chemical) technologies and processes that posed considerable risks to worker safety and health.

A 1965 Public Health Service report stressing the links between chemical exposure and cancer, the disclosure in 1967 of a shockingly high incidence of lung cancer among uranium miners dating back more than two decades, and a West Virginia mine explosion in 1968 that killed 78 led President Johnson to declare that the time had come “to do something about the effect of a workingman’s job on his health.”  As of 1968, in what was obviously a much smaller workforce than today, more than 14,000 workers were killed on the job annually, and more than 2.2 million injured.

Paradoxically, the famously persuasive President Johnson failed in 1968 to win passage of an ambitious proposal for federal health and safety regulation in the workplace.  That initiative fell victim to the president’s waning influence, due to the race riots and antiwar controversies of the day.

Some may be surprised to learn that although, to be sure, the proposals made by his successor were somewhat less labor-friendly than LBJ’s failed proposal, Richard M. Nixon had promised action on the issue while campaigning for the White House in 1968, and after taking office, he carried through on that promise.

The U.S. Chamber of Congress, representing industry, had hoped to limit actual penalties under any workplace safety legislation to willful, flagrant violators, and to prevent implementation of safety standards more demanding than “consensus” standards developed by industry groups.

One issue dear to both sides was that organized labor wanted authority over any new regime wholly under the control of the Department of Labor, while industry was flatly opposed to that.  The Department of Labor also had a “turf battle” with the Department of Health, Education and Welfare.

While the Democrat-controlled Congress ultimately gave labor much of what it wanted, one compromise divided authority, with a newly-created agency within the Department of Labor setting the standards and carrying out inspections, and the OSH Review Commission acting as a first-level appellate tribunal for parties disagreeing with administrative law judge decisions.

While noting some reservations, President Nixon signed the Occupational Safety and Health Act of 1970, and joined with both industry and labor in praising it.  Years afterward, as American politics tilted to the right, and labor softened its demands hoping to slow the rush of manufacturing jobs offshore, at times OSHA drew fire from liberal and advocacy groups for not enforcing standards stringently enough.

Despite some significant impairment in its protective mission as a result of companies abandoning the American labor market to manufacture goods abroad, OSHA has achieved considerable success.

The OSHA leadership has also exhibited some resourcefulness in deploying limited resources to achieve widespread compliance with its standards and lower rates of injury and illness from workplace conditions.

In August, results of an analysis of federal safety data by the Associated General Contractors of America showed a drop in the construction industry fatality rate over the 10-year period from 1998 to 2008 of 25% — from 12.9 deaths per 100,000 construction workers to 9.6.  The gross number of fatalities, despite the considerable grown of the market, fell from 1,171 in 1998 to 969 in 2008 (a drop of 17%).

During the same 10-year period, the number of “time missed” injuries in construction fell 42% from 3.3 per hundred to 1.9.

It’s probably no coincidence that the period in which there occurred such heartening reductions in construction-workplace injury and death corresponds to the inception of the “collaborative safety oversight” approach introduced by OSHA in the late 1990s.

Recognizing its limitations as the “safety police,” OSHA over the past 10 years has devised a number of programs, which vary in their scope and their details, but all have in common a voluntary collaboration between employers and OSHA.  To use as an example just one such program, the “Strategic Partnership Program for Worker Safety and Health,” the Partnership aims at getting a formal agreement with an employer (or, commonly, a group of employers), workers, and worker representatives, to identify the most serious workplace hazards, develop workplace or site-specific safety and health management systems, share resources, and identify and implement effective ways to reduce worker injuries, illnesses, and deaths.

“Partnerships” are most popular with small businesses (50 employees or less) and many construction employers and construction-related trade unions, have  participated.

If you check out the osha.gov website, you will see details concerning a variety of “compliance assistance” programs as well as a number of success stories from around the country.

Certainly, much can be said in favor of inviting active technical assistance from OSHA, and demonstrating to both OSHA and your workforce that as an employer you don’t see OSHA as a mere nuisance and ducking citations as your #1 safety priority.

The approach, to be sure, has its critics, notably safety advocates who complain that “compliance assistance” is essentially a pro-employer, anti-enforcement device, whereby companies (mostly larger companies with good safety programs and low accident rates already) consume OSHA staff members’ scarce man-hours that might better be spent fining, and finding, violators than in “preaching to the choir” in programs that lack enforcement “teeth.”

“Compliance assistance” first caught on in the Mining Safety and Health Administration and, in the wake of the Crandall Canyon mine disaster in 2007, critics savaged the concept as a means of avoiding confrontation with well-connected mine owners (such as the one in that case, whose direct and indirect contributions of almost $1 million to Republican candidates were seen as having won cursory MHSA review of the mining plan alleged to have led to the fatalities).

Certainly, it cannot be denied that, as argued by a former (Clinton-era) senior MHSA official that “every minute you spend on compliance assistance is a minute you’re not spending on enforcement.”

On the other hand, it’s probably unrealistic, and perhaps too cynical, to suppose that it was chiefly the fear of stern enforcement that (before “compliance assistance”) motivated employers to comply with OSHA.  Most employers do care about employee health and safety — and, as monetary penalties for violations have always been modest (at least for non-“Willful” violations) it could hardly be that it was mainly the fear of such penalties that motivated OSHA compliance prior to 1998.

Nevertheless (and allowing that the mining industry may have issues that don’t apply to general industry or to construction) the utility of “compliance assistance,” in the universe of companies regulated by OSHA, must ultimately be measured by results.  While determining the exact extent to which “compliance assistance” may be credited with falling accident rates is not an easy task, if the growth of the approach coincides with sharp drops in safety incidents, it’s likely a good idea.

A recent OSH Review Commission case, upholding two “Serious” OSHA violations against an underpinning subcontractor, is instructive both as a reminder of the regulations violated, and for aspects of how the employer handled the matter.

 In Secretary v. JPC Group, Inc. the employer was hired to underpin foundation walls of two buildings, 1902 and 1910 Spring Garden Street, located on either side of a construction site in Philadelphia.  JPC did a test dig at building 1910, removing enough soil from against the wall to expose a portion of its foundation.  This revealed loose stones in the foundation, with no mortar between them.  Uncertain that the wall was suitable for underpinning, laborer Claude Enoch approached JPC foreman and designated “competent person,” Jeffrey Nicolai, to request that Nicolai assess the wall’s condition.  Nicolai did so and, agreeing with Enoch’s view, referred the matter to JPC project manager Timothy Boyce, an engineer.  Boyce told Nicolai to close the test dig area, and to halt all underpinning work until Boyce could evaluate the site.

The following day, JPC performed another test dig attended by Boyce, project engineer Bevan Lawson, and others.  This revealed that, due to the deterioration of the mortar, some of the foundation wall’s stone work had collapsed, following efforts to excavate soil from beneath the foundation.  Boyce determined that excavation under the wall of building 1910 could not be done without endangering the building’s stability.  Underpinning, Boyce determined, would have to be delayed until Lawson could revise the plans.  In the meantime, Boyce determined that the walls should be protected by applying Gunite, a waterproofing agent.  That process would necessitate removing all of the soil along the sides of each wall, but not from underneath the wall.

Nearly 2 weeks thereafter, a crew made up of laborers Enoch (who had done the first test dig) and Theodore Slater, and backhoe operator Richard Hartley, began preparing the foundation walls for the Gunite application.  Hartley first removed all of the soil berm left by the GC to support the walls of building 1902, then moved his backhoe to the rear of building 1910.

  As the parties would later stipulate, Hartley began excavating at the rear of building 1910, and worked his way along the wall towards the front of the property.  The two laborers then used shovels to remove the remaining soil that Hartley could not remove with the backhoe, before attaching mesh and rebar to the wall.  JPC did not use any type of support system, such as shoring, while performing the excavation work.

Hartley had removed the berm along about half the length of the foundation wall of building 1910, when he had to pause because soil in bulk was blocking his way.  Enoch and Slater were near the south end of 1910, preparing to place rebar and mesh, when they heard popping sounds.  Heeding shouts by a foreman working nearby, both men ran away from the building, and thus avoided being struck as it collapsed.

The Secretary grouped together two related violations, one for performing excavation adjacent to a foundation wall without providing adequate support, and the other for failing to ensure that a “competent person” inspect the work area as needed throughout the shift.  A single, $2,500 penalty was assessed.  The employer contested the citation, which was upheld by the ALJ at trial.  The OSH Review Commission upheld, on appeal, the grouping of the two citation items.¹

While reported decisions don’t always tell the entire story, my sense is that the employer in JPC Groupcould have handled this matter more advantageously.

First, either there occurred a grave communications breakdown within the company, or a decision was made to proceed with the soil removal and application of Gunite without adequate supervision, and without adequate instructions to the crew.

Every OSHA citation — this point  recurs here often — is largely about your next violation.  Although, certainly, you should consider every legitimate defense that may be available, winning today’s battle is seldom the main thing.  Citations should be used as an opportunity to improve your company’s safety performance, and your reputation with OSHA (and your workforce) as a conscientious, safety-conscious employer.

Frankly, upon reading the ALJ and Commission decisions in the JPC Group case, I was at a loss to figure out why the employer had not owned up to the violations, paid the modest penalty, and done some in-house training, considering itself lucky indeed that its employees had escaped injury.  The “background” elements (status as employer, project in interstate commerce, applicability of the regulations cited, etc.) all were in place.  The substantive elements, too, were clearly present, as no support system was in use, and no competent person inspected the work area.

Given the laborers’ testimony that they avoided being struck by the collapsing building only by running away, it was hardly open to the employer to argue that no employees had been exposed to the unsafe condition.

The ALJ easily turned aside JPC’s attempt to argue that its work in connection with the Gunite application had not threatened the stability of the foundation walls.  Project manager Boyce’s testimony that he had had “no concerns” about exposing the walls, and that there were no restrictions on uncovering them for waterproofing them was discredited by his admission that he had suggested putting a tieback through the wall, or even pouring another foundation wall.  Further, the Compliance Officer testified that Boyce had told him that he was greatly concerned about the wall’s stability, and that the plan had been to uncover the walls in 20′ lengths, apply the rebar, mesh and Gunite, and then replace the soil.

The employer took a weak stab, also, at disputing constructive knowledge, but given that its consulting engineer, project manager, and site foreman had all attended the meeting at which the condition of the wall was discussed, the underpinning put on hold, and a plan formulated to remove the soil berm in 20′ sections, the ALJ easily found that the employer knew, or should have known, of the condition.

The rest of the employer’s defense was chiefly Hartley’s testimony (seconded by the two laborers) that he had not used the backhoe on either building on the day of the collapse.  If believed, this testimony would have done little for the employer’s cause, as it was plainly doing excavation work close to an unshored foundation wall.  The testimony was not believed, among other things as the employer had stipulated that Hartley had removed the soil berm from building 1910 with his backhoe on the day of the collapse.  

Employee safety training should include instructing your workers that OSHA violations will likely occur, and that they are not to misstate facts to OSHA personnel, or at any hearing as may be held.  In the JPC Groupcase, the ALJ decision featured prominently a five-paragraph discussion on why the employer’s witnesses (its project manager as well as the three workers) had been disbelieved.  Counsel, it would appear, failed to properly prepare the employer’s witnesses — and, if the facts making out the violations are readily established, and the ALJ finds your witnesses unworthy of belief, you’re probably going to lose.

Contesting OSHA citations is expensive.  Except, perhaps, where the violation alleged is “Willful,” or the citation includes an uncommonly large number of “Serious” items, the costs of taking a contest through trial (let alone appeal) is likely to be a multiple of the penalty first assessed.

Lawyers like to impress clients with their fighting spirit, but that’s not always called for in the OSHA context.  “Scorched earth” is a dubious strategy given, especially, that you will probably be seeing OSHA again in years to come.  Contests should be maintained only where there is an honest basis, and a substantial prospect of having the citation vacated.

The construction industry leads all occupations in the incidence of time-lost eye injuries.  Construction accounts for more than one-fifth of all significant eye injuries suffered in the U.S. workforce each year.  Workers in the various trades are at risk from exposure to nearly every known threat to the eyes:  impact, ultraviolet radiation, liquid splash and infrared radiation.  From overexposure to the sun, flying wood, paint chips, cut wire ends and nails, toxic cleaning chemicals and paint to infrared exposure from torch welding and cutting, vision hazards can be found nearly everywhere on the jobsite.  While fall hazards, trench cave-ins, crane accidents and electrocutions due to contact with live wires rightly deserve attention as principal causes of construction fatalities, the loss of vision is devastating.  Eye safety, given the ubiquity of the hazards, requires constant attention.

Perhaps the most startling thing about eye safety in construction is that, despite the occurrence of nearly a thousand injuries per day, barely half of the workers in building construction and special trades, and barely a quarter in heavy construction, regularly wear non-prescription safety glasses or goggles while working.  Since safety glasses with “ANSI Z87” certification can be bought for as little as $10 a pair, clearly this is a source of injuries and lost time that could be drastically reduced, at very modest expense.

The observance of five simple rules can greatly reduce the frequency and severity of construction site eye injuries.

Rule #1, obviously, is that protective eyewear should always be worn while workers are performing tasks, or in locations where potential eye hazards are present.  Although, to be sure, protective eyewear is not a 100% guarantee against injury to the eyes, the Bureau of Labor Statistics estimates that approximately 60% of lost-time eye injuries occur when the affected employee is not wearing any eye protection. 

Rule #2 is that eyewear should be of the right kind, and must fit properly and comfortably.  Although contact with chemicals is a major source of eye injuries (accounting for roughly a fifth of those experienced in construction) by far the greatest source is flying of falling objects or sparks.  Nearly 70% of all eye injuries result from such causes and, in nearly three-fifths of those cases, the objects striking the worker’s eye are smaller than a pinhead.

Goggles should always be worn, if dust, liquids, or gases will be present.  Goggles must fit over any prescription glasses (or prescription goggles may be worn).  Eye protective devices should allow air to circulate between the eye and the lens (although unvented goggles are indicated for use with contact lenses).  A clear, plastic face shield is required for work with corrosive chemicals, grinding, chipping, the use of a wire brush on welds, flying particles and, of course, sandblasting.

Even where an enhanced degree of protection is not indicated, workers on construction sites should always wear goggles or, at least, safety glasses having side shields.  Special care is required, of course, for workers engaged in welding and flame cutting.  Several variables (the intensity of radiant energy, background lighting — mainly, whether one is working indoors or outdoors — and the difference between standard or reflective lenses) will affect the minimum shade number of lens that must be used.

While most welders are well-trained in the use of appropriate protection against UV rays, “welder’s flash” may affect the vision of others working close by.  Workers should be trained not to look at the welding arc, or reflections of the arc, unless they are wearing a welding hood with the same lens as the welder’s.  OSHA further requires the use of a flameproof screen around a welder, to protect others from UV rays.

Not only must protective eyewear be matched to the job to be performed, it must also be properly maintained.  Most eyewear will not withstand repeated impact or abuse, so regular inspection, and the replacement of badly scratched or broken eyewear, are required.

Rule #3 is that engineering controls and industrial hygiene must be employed where practicable.  Notably, the use of local-exhaust ventilation or fans will often be indicated to blow away fumes or dust.  OSHA requires, also, that eyewash stations be available if there are materials that could injure employees’ eyes.   

Rule #4 is that both rank-and-file workers and supervisors should be instructed concerning what to do when eye injuries occur.

Where an irritating or dangerous chemical comes into contact with the eye, the workers should immediately commence to rinse it out for at least 15 to 20 minutes.  Flowing tap water, if available onsite, should be used (and contact lenses, if worn, should first be removed).  This first-aid measure should be followed up at once with professional medical attention.

If an employee is struck in the eye area, a cold compress (ice cubes in a plastic bag or clean cloth) may be used to reduce swelling, but pressure should not be applied to the eye.  If pain persists or blurred vision occurs, the employee should be seen by a doctor.

If a worker is struck in the eye by flying metal, wood, or material from a power tool, if the eye is cut or punctured or the worker experiences eye pain from any impact-type injury to the eye, he or she should be taken to an emergency room or doctor at once.  Immediate medical attention is often critical in preventing or limiting permanent damage to the worker’s eyesight.

Workers should be instructed that, if the eye is cut or punctured, they should not push on it, wash it out, or try to pull out anything that has become lodged in the eyeball.  Instead, get that worker to a doctor!

Rule #5 is that you must be persistent —you’ve got to be willing to nag.  Nearly all construction workers know, generally, that eye hazards are all around them on the jobsite, but half or more neglect to use protective eyewear.  Just as no one should be able to get into a lift bucket without a harness and lanyard, workers exposed to eye hazards must be required to don protective eyewear before beginning work.  A sizeable minority of workers, unfortunately, will not religiously use eye protection unless made to do so — and, if workers see that eye protection is not insisted on by management, many will not use it consistently.  Quite simply, the minor discomfort or inconvenience associated with the regular use of protective eyewear must be perceived by workers as a lesser irritant than being nagged, told to return to the changing area to retrieve eyewear, or being disciplined for failing to use proper eyewear.

 Studies show, in fact, that although most employers furnish eye protection at no cost to employees, most workers suffering eye injuries do so while performing their regular jobs and claim not to have been aware that eye protection was needed.  About 40% of construction workers claim a lack of instruction regarding where and what kind of eyewear should be used.   The nationwide cost of eye injuries on construction sites is estimated to exceed $300 million annually in lost production time, medical expenses and workers’ compensation.  The impact on individual workers suffering partial or total loss of vision from such incidents is incalculable.

It’s in your employees’ interest, and your own, to make the modest efforts necessary to prevent and reduce the severity of eye injuries in construction activities.

While most construction-industry employers in New York are somewhat knowledgeable about OSHA’s construction regulations and the notorious “Scaffold Law,” many have never heard of New York’s “Industrial Code,” which is another source of regulations your safety program needs to take into account.

By statute, the Commissioner of the New York State Department of Labor issues safety regulations.  They are collected in Part 12 of the New York Code of Rules and Regulations (NYCRR).

The recent 4-3 decision by the New York Court of Appeals in Misicki v. Caradonna, in addition to giving me an opportunity to alert you to the murky rules of liability under the Industrial Code, overturned existing precedent, and has lowered the bar somewhat for an injured plaintiff to get his case to a jury.

Misicki, a laborer, was working on the renovation of a pool deck at a residential cooperative.  The owner, whom we’ll call “Shore” for short, had engaged Misicki’s employer, “Upgrade,” to perform the job.
One day Misicki was given a hand-held, 9-inch, electrically-driven angle grinder, and was told to cut a slot into a line marked on a wall, between one and two feet above the deck.

The grinder was supposed to have a removable handle, which could be fitted onto the grinder in any of several different positions.  Misicki complained to his foreman about the missing handle, but was instructed to use the grinder without it.

At one point, Misicki had to lie on his side beneath a protruding balcony, and use the grinder in an awkward position.  The grinder “kicked back,” the grinding wheel struck Misicki in the face, and he was badly injured.

Although of course unable (because of the Workers’ Compensation Law) to sue his employer, Misicki sued Shore for common-law negligence and under several provisions of the Labor Law.  As usual in such cases, Share then brought a third-party action against Upgrade.

After discovery and the weeding out of several claims through motion practice, what remained was a single claim under Labor Law ¬ß 241(6), which “requires owners and contractors to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Department of Labor.”  That duty is “non-delegable” — which is to say that the premises owner may be held liable, even if it did not supervise the work.

A finding that an Industrial Code safety rule was not observed does not mandate a finding of liability: it is merely evidence for the fact-finder to consider on the question of the defendant’s negligence.  And, unlike the Scaffold Law, the plaintiff’s comparative negligence may be considered.

Where matters become really confusing is that a breach of the non-delegable duty will not support a lawsuit under Labor Law § 241(6) unless the provision not complied with mandates compliance with specific specifications, as opposed to merely reiterating safety standards in general terms.
In Misicki, analysis of whether the provision in question, 12 NYCRR 23-9.2(a), was “specific” or “general” focused on the following three sentences:

1. All power-operated equipment shall be maintained in good repair and proper operating condition at all times.
2. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance.
3. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.

Defendant moved in the trial court for summary judgment, relying on a line of prior Second Department precedents holding that section 23-9.2(a) merely establishes general safety standards which do not give rise to a non-delegable duty.¹ 

Supreme Court, the trial court, at first agreed that, since it was sitting within the Second Department,  it was bound by precedent to dismiss Misicki’s Labor Law ¬ß 241(6) claim.  Plaintiff moved to reargue Supreme Court’s dismissal order, and convinced Supreme Court to distinguish earlier Second Department cases and instead follow the Zucher case, from the Fourth Department, to find an actionable violation of  a sufficiently-specific mandate to remedy upon discovery a “structural defect or unsafe condition.” Misicki argued that, read together, the second and third sentences mandate sufficient inspections, and the correction of any defects or unsafe conditions found.

Supreme Court therefore reversed itself and reinstated the plaintiff’s Labor Law ¬ß 241(6) claim.  Defendant appealed to the Appellate Division, Second Department, which reversed the reinstatement of the plaintiff’s claim, reaffirming its rule (prevalent also in the First and the Third Departments) that ¬ß 23-9.2(a) is too general to give rise to a non-delegable duty.

The Court of Appeals agreed to hear the plaintiff’s appeal, in order to resolve the conflict between the Fourth Department on the one hand, and the First, Second and Third Departments on the other.
The appeal to New York’s top court produced a 4-3 decision adopting the minority (Fourth Department) rule, reversing the Second Department, and reinstating Misicki’s claim.  It produced also two sharp dissents, disagreeing both with the majority decision and with one another.

Many non-lawyers would approve the common-sense approach of the dissent by Judges Smith and Pigott.  These dissenters found the entire “specificity” analysis uncalled for, because Subpart 23-9 is limited by its terms to “heavy equipment or machinery.”  This dissent likens scrutinizing, for specificity, a provision which plainly ought not to apply “to deciding whether I would be a bicycle if I had wheels.”

Remarkably, the inapplicability of a rule concerning “heavy equipment or machinery” was never raised by defendant’s attorney.  Judges Pigott and Smith argued in vain that an exception should be made to the rule relied upon by the other five Judges in choosing to exclude this obvious, common-sense argument —  namely, that generally cases must be decided based upon arguments actually raised by the litigants.

The third dissenter, Judge Graffeo, wrote her own opinion, agreeing with the majority that the applicability argument could not be considered, but voting nevertheless to affirm the Appellate Division’s dismissal of the plaintiff’s action, based on the reasoning of the prior Second Department cases that found the provision too general.

The four-Judge majority, however, found in the last of the three sentences quoted above (imposing a duty to replace or repair defective or unsafe equipment) a “distinct standard of conduct” which, in their view, is “precisely the type of ‚Äòconcrete’ specification” required.

While ultimately the issue of liability was left for the jury, under the Court of Appeals’ decision in Misickiif some party to or participant in the construction project should be found to have caused the plaintiff’s injuries, then the defendant-owner would be vicariously liable without regard to fault.

Misicki, in which each of the three decisions that followed the first one reversed the one that preceded it, underscores the dubious wisdom of having different liability rules for “specific” and “general” duties under the Industrial Code.  Your safety director must nevertheless take into account, in fashioning your safety program, provisions of the Industrial Code that even arguably apply to the work performed by your trade.

An issue long unsettled for purposes of the OSH Act is the extent of a general contractor for OSHA violations affecting only subcontractors’ employees.

A view long favored by the OSH Review Commission, is that the general contractor may be cited for violations it created, and any to which its own employees were exposed, but not for hazards created by others subcontractors or other employers at the site.

The Secretary of Labor for years has proposed a more expansive view, that the GC (at least where it has authority sufficient to prevent or abate hazards) must protect all employees — not only its own — from OSHA violations.¹

In a recent appellate decision, Solis v. Summit Contractors, Inc., the U.S. Court of Appeals for the Eighth Circuit held that the applicable regulation permits employers to be cited, even where their own employees are not exposed to the subject hazards.

In Summit Contractors the GC on a dormitory project subbed out virtually all of the work and had only a project superintendent and three assistants onsite.

On two or three occasions, Summit’s project superintendent observed employees of its exterior brick subcontractor, All Phase, working without personal fall protection on scaffolds lacking guardrails.  Although Summit’s super cautioned All Phase to correct these problems, upon moving the scaffold to another location, All Phase’s men again worked without fall protection and guardrails.

OSHA cited Summit under OSHA’s  “controlling employer” citation policy, despite the fact that none of Summit’s own employees were exposed to any hazard created by the scaffold violation.

Summit argued at trial that 29 C.F.R. ¬ß 1912(a) places a duty on employers to protect only their own employees — not those of any subcontractor.  The Administrative Law Judge rejected this argument, and upheld the citation.

The OSH Review Commission granted Summit’s petition for review, and held, by a 2-1 margin, that as Summit had argued  1910.12(a) only that each employer protect its own employees.  The Commission therefore vacated the citation against Summit, but the Secretary petitioned for further review by the Eighth Circuit Court of Appeals.  

Section 1910.12(a), which dates back to OSHA’s inception in 1971, provides:

The standards prescribed in part 1926 of this chapter [the construction industry standards] are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work.  Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

The Secretary’s initial multi-employer worksite policy, as indicated in OSHA’s initial Field Operations Manual (1971) adopted the “creating” and “exposing” employer citation policies, but not the “controlling” employer policy.  Thus, in OSHA’s early days, OSHA considered itself as having authority to cite general contractors only for hazards to which its own employees were exposed (plus any it had itself created).  In the early 1970s, the OSH Review Commission likewise construed the policy in the same, narrow fashion.

Indeed, for a brief period during the mid 1970s, the Secretary was engaged in making its policy even narrower, at the same time that some courts were heading in the opposite direction.  Two Courts of Appeals, including our Second Circuit² in the Brennan case, expressed the view that 29 U.S.C. ¬ß 654(a)(2) — which requires “each employer” to “comply with occupational safety and health standards promulgated under this chapter” — is not limited to “situations where a violation of a standard is liked to exposure of his employees to the hazard.”

At about the same time, the Secretary temporarily altered the OSHA Field Manual to limit citations only to the “exposing employer.”  In light of the cases, however, favoring a more expansive policy, in 1976 the Secretary reversed its view, essentially viewing the policy to have been judicially expanded.

Over the years since 1976, most employer challenges to the broader “controlling employer” rule have not succeeded, although one circuit, the Fifth, has doggedly held to the contrary.  In 1995 (as the recentSummit Contractors decision noted) a decision by the District of Columbia Circuit remarked in passing that the current multi-employer worksite doctrine is in “marked tension” with 29 C.F.R. ¬ß 1910.12(a).

In Summit Contractors, the majority of the Eighth Circuit panel read the language of ¬ß 1910.12(a)(2) (concerning the employer’s duty to protect the “places of employment of each of his employees”) as permitting the Secretary to cite “controlling” employers.  It found that “the plain language of part (2) does not preclude an employer’s duty to protect . . . others who work at the place of employment, so long as the employer also has employees [there].”

While the majority took the view that ¬ß 1910.12(a)(2) “unambiguously” supports the Secretary’s view and the “controlling employer” policy, it stated further that even assuming the provision to be ambiguous, the courts must defer to any reasonable interpretation construction by the agency (even if “not be the best or most natural one by grammatical or other standards”).

The dissenting judge argued that ¬ß 1910.12(a) is unambiguously contrary to the construction adopted by the majority, and that it yields an unworkable result, as even the most sophisticated general contractor cannot  be expected to recognize violations of the intricate requirements affecting the trades of specialized subcontractors. 

Obviously, a general contractor detecting a serious OSHA violation by a subcontractor should act to correct it, whether its own forces are exposed or not.  Worker safety is more important than the precise boundary between employers’ responsibilities under OSHA (not to mention that negligence law imposes on a general contractor, in most states, a duty to abate worksite hazards where it has authority to do so).

Nevertheless, we should hope that Summit Contractors or a similar case soon makes its way to the U.S. Supreme Court.  The dissent, I believe, correctly argues that the majority’s interpretation of ¬ß 1910.12(a)(2) rests upon a “puzzling and unsupported extension of regulatory intent” and that it is impractical and unjust to impose on general contractors full mastery of the detailed requirements affecting all of the subcontractors’ trades.

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. 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.

In 1900, there were only about 8,000 registered motor vehicles, and 10 miles of paved roads, in the United States.  The first centerline to be painted on an American highway was in Michigan, in 1911, and the first STOP sign appeared in Detroit in 1915.

The early decades of the Automobile Age saw a chaotic lack of uniformity in road and highway signals and signage.  The first serious attempt to publish proposed uniform standards appears to have been a mimeographed manual, prepared under the joint auspices of the National Conference on Street & Highway Safety and the American Association of State Highway Officials, which appeared in 1935.

While that first “Manual on Uniform Traffic Control Devices” was a private effort, for some years now the traffic control “Bible” appearing under that name has been promulgated by the Federal Highway Administration, part of the U.S. Department of Transportation.  The power that goes with the ability to dispense — and to withhold — federal highway funds has been employed to oblige all of the States to adopt MUTCD as part of State law, although many states (including New York and Connecticut) have adopted the Federal MUTCD with state-specific supplements, and about a half-dozen states, while declining to adopt Federal MUTCD outright, have kept federal highway funds flowing to them by adopting State versions in “substantial compliance” with the Federal version.

MUTCD is thus to be found on the bookshelves of state and local highway agencies, planning, construction and engineering organizations, law enforcement agencies, insurance companies, and many others.

Familiarity with MUTCD is obligatory, not only in the obvious case of companies engaged in the construction and maintenance of highways and other thoroughfares, but also if your company does work in proximity to roadways, as may affect traffic.

But is MUTCD part of OSHA?

A recent decision of an administrative law judge of the OSH Review Commission gives this answer:  yes, as to those mandatory provisions of Part VI of MUTCD, “Temporary Traffic Control,” which are incorporated by reference in construction standard ¬ß 1926.200, “Accident prevention signs and tags.”

In Secretary v. CPM Constructors, the general contractor was performing road paving and related work in a high-traffic area, with a high volume of pedestrians, on-street parking, and retail businesses, in Freeport, Maine.

Following inspection, the employer, CPM, was cited for a “Serious” violation of 29 C.F.R. ¬ß 1926.200(a), which provides that “Signs and symbols required by this subpart shall be visible at all times when work is being performed, and shall be removed or covered promptly when the hazards no longer exist.”

Specifically, CPM was alleged to have failed to remove or cover promptly a sign announcing the presence of flaggers ,when a portion of its work was concluded on Main Street (a north-south road) and the flaggers followed CPM’s crew a distance of perhaps four tenths of a mile to a site on Mallet Drive, a roadway intersecting with, and perpendicular to, Main Street.

MUTCD ¬ß 6E.05 provides that “flagger stations should be preceded by proper advance warning signs.”  The Secretary and the employer agreed that, as the roadways in question were in an urban (low speed) setting, due to heavy traffic congestion and a high volume of pedestrians, under MUTCD the minimumdistance between the flagger and the nearest “Flagger Ahead” sign was 100 feet.

A “Flagger Ahead” sign located near the Fire Station on Main Street was left in place, the parties agreed, for approximately 45 minutes after the time that the work crew and flaggers had moved over to Mallet Place.  Following that move, the distance between the sign near the Fire Station, and the one flagger in use on Mallet Place, was about 4/10 of a mile.  Neither the cited OSHA standard, nor MUTCD itself, prescribes a maximum distance between the “Flagger Ahead” sign and the flagger.

Why the apparent oversight in removing (or covering) the “Flagger Ahead” sign by the Fire Station after the work crew had moved was alleged to constitute a “Serious” OSHA violation is suggested by MUTCD ¬ß 2C.02, which states in part:

The use of warning signs should be kept to a minimum as the unnecessary use of warning signs tends to breed disrespect for all signs.

The Secretary asserted that the employer ought to have promptly removed the “Flagger Ahead” sign near the Fire Station when work at that location was completed, and placed within a reasonable distance (between 100 and 300 feet) from the place on Mallet Drive where the work was proceeding.

The Secretary further argued that the 2000 foot distance between the sign near the Fire Station and the flagger on Mallet Drive was “patently unreasonable.”

The citation in CPM Constructors was submitted on stipulated facts to the Administrative Law Judge for his decision on the law.  Interestingly (and contrary to any notion that the employer can’t get a fair shake in a contested OSHA citation before an administrative law judge, paid by the Department of Labor) the citation was vacated.

First, to prove an OSHA violation, one necessary element which the Secretary must establish, by a preponderance of the evidence, is that the cited standard applies.  While the standard cited provides that a “required sign” must be removed, or promptly covered, when no hazard exists, nothing in 29 C.F.R. ¬ß 1926.200(a) actually requires a flagger sign when using a flagger.  Section 6F.2D of MUTCD, the ALJ observed, states that “flagger stations should be preceded by proper advance warning signs,” but “should” makes the prescription discretionary, not mandatory, and it is only mandatory elements of MUTCD Part VI that are mandatory under OSHA.

The only mandatory statement in MUTCD that specifically requires a flagger sign applies to lane closures on low-volume, two-land roads.  That section provides that “when flaggers are used, the Flagger symbol sign shall be used in place of the YIELD AHEAD sign.”

The ALJ found that standard did not apply to the facts of CPM Constructors,  because the road at issue was a high-traffic area, not a low-volume, two-land road.  Thus, on the facts in CPM Constructors, the “Flagger Ahead” sign was not a “required sign” that had to be removed or promptly covered, and the Secretary thus failed to carry her burden to show that the cited standard applied.

Moreover, the ALJ in CPM Constructors found, even assuming the applicability of the cited standard, the Secretary failed to show noncompliance with its terms.

Part 2 of MUTCD provides, as a standard, that “the use of warning signs shall be based on an engineering study or on engineering judgment.”  While the Secretary argued that the 2000-foot distance between the flagging activity on Mallet Drive and the flagger sign on Main Street was the equivalent of there being no flagging activity on Mallet Drive for purposes of the cited standard, the employer asserted that the placement of the flagger sign was reasonable in the circumstances, because any other placement would have resulted in its effect being lost in the flood of traffic, pedestrians, parked vehicles, and retain business advertisements and signs.

CPM’s proffer of reasons, tailed to the specific facts of the case, that supported the placement of the flagger sign, coupled with the Secretary’s failure to allege (much less demonstrate) a failure to use an engineering study or engineering judgment, was found by the ALJ to add up to a failure to prove noncompliance with the cited standard’s terms.

Note that while it is only the mandatory provisions of MUTCD Part VI that are technically mandatory under OSHA, the non-mandatory provisions re properly referred to when interpreting a doubtful term of a provision.

The obvious lesson from CPM Constructors is that compliance with MUTCD’S mandatory provisions related to accident prevention signs and tags is part of OSHA compliance.

A further lesson, I propose, is that CPM Constructors underscores that ALJ proceedings in the OSH Review Commission are not to be shunned as stacked against the employer.  The judges there are knowledgeable and meticulous, and (usually) “get it right” on the law.