Having comprehensive general and project-specific safety manuals and formal safety policies are fine and necessary elements of an effective safety program.  However, your workforce isn’t going to stay up nights reading and re-reading your safety manual.  And, studies have shown, even engineering students (a group arguably more sophisticated than your labor force) have trouble understanding terms and acronyms as basic as those used in the OSHA 10-hour course.  Other studies suggest that workers whose first language is one other than English can sit through the OSHA 10-hour course, and come away having understood almost nothing of what they have been taught.

As an administrative law judge pointed out in Secretary v. David H. Elliot Construction Co., Inc., while rules are essential, “no rule can cover all contingencies.  That is the responsibility of a training program.”  The repetition of key concepts is critical, as is taking effective steps to discover and to discipline workers who violate safety rules.  Both from my firm’s OSHA practice, and from the research that goes into preparing these articles, I frequently see cases in which lapses, often by experienced workers who certainly had been trained to know better, have resulted in serious injury or death.
In Elliot Construction. the employer contracted to tear down an old power distribution system, encompassing 4000 poles extending over 226 miles, that had been badly damaged in an ice storm.

To minimize service interruptions, the existing lines were transferred (while still energized) from the old poles to hot rollers on the new poles.  The old poles were then torn down, and new lines strung.  This required the contractor to clean off everything attached to the old lines, and to reconnect customer connections with temporary jumpers which would then be removed when the new lines were pulled into place.

By the time of the fatal occurrence, the contractor was ready to remove the old lines, and to string new ones.  Two four-man crews, headed respectively by foremen Howard Hall and Randy Wood, were combined to form a single crew, with Hall being placed in charge.

The expanded crew removed the old phase and neutral wires, and then strung and sagged the new phase and neutral wires.  After sagging, the conductor had to be tied or clipped to the insulators.  This was done from a lift bucket or, where the poles were set away from the road, by climbing the pole.  Late in the day, Hall, working with part of the crew at Pole 64, sent two linesmen, Morris and Angel, to work on Poles 50 and 51, roughly half a mile away.

Hall directed Morris and Angel to find the groundman, Dixon, and take him to Poles 50 and 51.  They were further instructed to inform Wood of their assignment, so that Wood would be able to inform Hall when Morris, Angel and Dixon were clear of the lines prior to energization.  Angel and Morris found Dixon at Pole 42, and proceeded to Poles 50 and 51.  However — and here occurred the fatal lapse — Angel and Morris disregarded Hall’s order, and failed to tell Wood of their assignment.

When Wood’s group had finished their work, Wood radioed Hall to report that everyone at his end was clear.  However, due to Angel’s and Morris’s having neglected to tell Wood that they (and Dixon) would be working at Poles 50 and 51, Wood was not aware that Hall would assume, when he got Wood’s “all-clear,” that Wood’s signal included Angel, Morris and Dixon.

Hall told Wood to remove the ground at Pole 42, install a jumper and energize the line.  Morris — who, unbeknownst to Hall, was still working on Pole 50 —  was electrocuted when the lines were energized.

The ALJ’s decision (which sustained only two citation items out of seven charged against the employer) had to consider and resolve a number of thorny issues.  While space does not permit all of them to be analyzed here, I will remark that the ALJ addressed each of the technical legal issues thoughtfully and painstakingly.  Although the ALJ did not accept every argument advanced by the contractor, my reading of Elliott Construction reinforced my long-standing belief that, notwithstanding that the administrative law judges draw paychecks from the Department of Labor, they are (certainly as a general proposition) knowledgeable, conscien¬≠tious, and fair.

One citation item alleged was that:

At the jobsite, the employer did not ensure that employees performing a stringing operation were trained in procedures, such as but not limited to:  placing grounds at all job locations, placing tags on deenergized lines, and accounting for all workers prior to re-energizing lines, thereby exposing employees to an electrical hazard.

The ALJ found persuasive the contractor’s arguments that neither point of work grounding nor tags were required.  The generalized standard (requiring that grounds be installed at each work location, where work was being performed at more than one location on the line) was pre-empted, the ALJ found, by standards that apply specifically to stringing operations.  These standards, 29 C.F.R. ¬ß 1926.955(c)(10) and (d)(9), which provide that transmission clipping crews must work “between grounds” when working on bare conductors, and that grounding at every work location is mandatory only when there is a possibility of “dangerous induced voltage,” had been observed by the contractor.  The crew worked between grounds, and there was no danger of a dangerous induced voltage.

Tagging was not necessary, the ALJ agreed, because the cited standard, 29 C.F.R. ¬ß 1926.950(d), only requires it when “the means of disconnecting from electric energy is not visibly open or visibly locked out.”  Although at Pole 42, where a mechanical jumper had been removed as part of the process of de-energizing the line, no tag had been placed to indicate that men were working on the line section, there was a large visible gap between the energized line on one side of the pole, and the de-energized line on the other.

Tagging is intended to prevent an employee from accidentally turning the switch or disconnector.  On Pole 42, there was no switch or connector to attach the tags to.  Once the jumper was removed, no one would be working at that pole anyway.  As the means of disconnect was visibly open, there was no way that an employee could have inadvertently energized the line.  Tagging, therefore, was not required.

This citation item was upheld, and a monetary penalty assessed, however, on the third and final ground:  that the contractor had insufficient procedures to account for all employees prior to the re-energization of the lines.  While the standard does not specify exactly what instructions must be given for that purpose, an employer must instruct its employees in the recognition and avoidance of those hazards of which a reasonably prudent employer would be aware.

The contractor’s foreman, Hall, simply assumed that Morris and Angel had followed his instruction to inform Wood that they had been assigned to work on Poles 50 and 51.  Had Hall been properly trained to avoid the hazards inherent in making such an assumption, the ALJ found, the hazardous condition would likely have been avoided.  (I would observe that Morris and Angel might also have been better trained that lives are placed in danger whenever the individual responsible to authorize the re-energization of the line lacks knowledge of where each crew member is, and what he is doing).

The ALJ denied the Secretary’s motion to amend the citation to upgrade to “willful” the item alleging that the designated employee in charge failed to ensure that all employees were clear of the line prior to re-energizing it.

Nevertheless, this item was affirmed as a “serious” violation, as the evidence was undisputed that Hall had failed to determine that all crew members were clear of the lines, and “unpreventable employee misconduct” was rejected as a defense, because of the insufficiency of the employer’s training of its foremen.

Safety training in construction is one of those problems that can’t be solved, but must be wrestled with anyway.  It’s no small challenge, and getting the message across, so that potentially lethal employee lapses are minimized, requires persistent effort.

Demolition activities present an unexpectedly complicated array of professional issues. Practical success and OSHA compliance require careful (and documented) advance planning. Even with the best planning, demolition is fraught with unexpected and often nasty surprises. These can result, for example, from deviations from design documents during construction; approved, unapproved or undocumented modifications; materials hidden within structural members, and unknown weaknesses or defects in materials.

Especially on smaller projects, one sees lots of needless risks taken, and lots of inadequately-trained workers. Accidents in demolition operations (notably, falls and injuries resulting from structures collapsing unexpectedly) are common, and too often serious or fatal.

OSHA regulations under Subpart T of the construction standards (Section 1926 in the Code of Federal Regulations) are deceptively brief. However, while obviously Subpart T needs to be reviewed and complied with, there are more than a dozen additional areas of the OSHA regulations that are likely to come into play on a typical demolition job.

Even if your company is a specialty demolition contractor, or regularly engages directly in demolition work, it’s a fairly safe bet that your personnel could stand to know more about demolition safety (or could use a refresher course). Given the impossibility of more than “scratching the surface” in this article, I’d suggest that you consider enrolling key personnel in one of the many useful courses (many of them OSHA-approved) which address topics relating to demolition safety.

If you work in a trade that doesn’t involve performing demolition, or you sub out demolition to specialists, you still should be knowledgeable about demolition safety. Keep in mind OSHA’s “multi-employer doctrine,” and laws that may impose liability for personal injury or wrongful death, even where you had no direct authority over demolition operations.

As a further recommendation, I’d suggest you speak with your safety director or safety consultant to review whether — like most contractors — your written safety plan needs more “beef” on demolition-related topics, and those topics merit more frequent and in-depth attention via training seminars and toolbox meetings.

The following are just some of the safety topics which — although not specific to demolition operations — require attention to carry out demolition operations safely, comply with OSHA, and improve your written policies and training programs:

• Asbestos;
  
• Confined spaces;
  
• Fall protection;
  
• Lead exposure;
  
• Personal Protective Equipment ;
  
• Respiratory protection;
  
• Noise and hearing conservation;
  
• Scaffolding;
  
• Trenching and excavations;
  
• Welding, cutting and brazing.

Many basic resources regarding demolition safety are readily found online. Subpart T (29 C.F.R. Sections 1926.850 through 1926.860) is an obvious place to start, but those regulations are only a small part of what you ought to know.

Virtually all local building departments require demolition permits, with associated paperwork being more or less burdensome. These non-OSHA requirements are in large part safety-related, and should not only be complied with, but properly documented.

Permit requirements generally overlap the “Preparatory Operations” described in OSHA, 29 C.F.R. ¬ß 1926.850. Typically, these will include but not be limited to the following:

• Checking adjoining structures to determine the condition of the framing, floors and walls, and to assess the risk of unplanned collapse;
  
• Shoring and bracing (if workers will need to work within the structure to be demolished) especially if the latter has been damaged by fire, flood, explosion, etc.;
  
• Notification to utility companies, and the shutoff or capping of electric, gas, water, steam, sewer and other service lines;
  
• Identifying and eliminating potential hazards from the storage or prior use of flammable or hazardous chemicals, gases, explosives, etc.;
  
• Abating hazards from glass fragmentation;
  
• Covering floor openings that will not be used as material drops;
  
• If applicable, the enclosing of areas onto which materials are to be dropped through holes in the floor without the use of chutes, and posting warning signs;
  
• Protecting wall openings, where employees could fall through them;
  
• Erecting needed sidewalk sheds and/or canopies;
  
• Obtaining all necessary inspections, permits, and insurance required by local law);
  
• Complying with additional local requirements (asbestos certificates, rodent control, fencing, notices to nearby property owners, posting signs, etc.)

A case illustrating several issues mentioned above is Secretary v. Fabi Construction Co., Inc. (1996). In that case, a subcontractor was to demolish manually a temporary “knockout panel,” made of reinforced concrete, which covered a shaft in a 10-story parking garage, atop which a 21-story hotel was to be built in Atlantic City.

As installed, the knockout panels varied from floor to floor. On the ground floor, the panels were flush to the slab on grade, and rested on 4″ wide ledges on all sides, with a metal deck below. On the second floor, the knockout panels rested on parapet walls, were doweled into the wall on one side, and had a metal deck below. On the roof, however, the panels were supported on two sides only, and there was no metal deck below them.

The demolition procedure for the knockout panels had workers standing on the edge of the panels and, using a jackhammer, making pilot holes, to determine the location of the supporting lip or ledge, expose the rebar, determine how far apart the rebar was, and to see if the individual panel was doweled (and if so, where the rods tied into the concrete around the panel).

The accident occurred as two laborers were demolishing one of the five-ton panels on the garage roof. One laborer made a 1′ x 2′ pilot hole and, seeing no movement in the rebar when he jackhammered around it, assumed that the rebar was tied into the adjoining wall. He proceeded to expand the hole, to determine where the next rod was. Stress cracks up to 5′ long were observed, but the second laborer, Kane, asked the laborer wielding the jackhammer, Caucci, to remove a little more concrete, to confirm that the rods were in fact tied in. As Caucci complied with Kane’s request, the entire slab, with both men standing on it, fell down the open shaft. Kane luckily seized onto a knee-wall on the floor below and survived. Caucci plunged to his death.

OSHA hit the employer with a number of “serious” violations in connection with this fatality. Significantly, for purposes of our immediate focus, the employer’s more-or-less conscientious written safety program and fall-protection training were held to be noncompliant with OSHA. The employer’s “plain vanilla” written program contained no section that specifically addressed demolition hazards. A fall protection video had been shown to some, but by no means all, of the subcontractor’s employees, but the subjects covered (e.g., perimeter protection, floor openings, PPE) failed to address site-specific (or demolition-specific) hazards. The latter were not adequately addressed in toolbox meetings.

The employer in Fabi Construction was found to have violated 29 C.F.R. § 1926.501(a)(2) (not a Subpart T regulation), by failing to determine that the walking/working surfaces on which the employees were required to work had sufficient strength and structural integrity to support them. As two engineers testified at the trial, the drilling of pilot holes (with jackhammers!) destroyed the integrity of the knockout panels. Once you start cutting pieces off the panel, the expert witnesses testified, the panel loses strength and if you remove either rebar or concrete, the slab loses its character as a reinforced concrete slab.

If you perform demolition, or your employees typically follow on sufficiently early that demolition may still be underway, you want to be sure that you (or the demolition sub) comply with an critical additional requirement discussed in Fabi Construction: the preparation of a written engineering survey, by a competent person, of the structure to determine the condition of the framing, floors, and walls, and the possibility of unplanned collapse of any portion of the structure (or any adjacent structure, where employees may be exposed). See § 29 C.F.R. § 1926.850(a). If you are not the entity responsible to prepare such a survey, obtain from the responsible contractor, and keep in your files, a copy.

Although the citation under this standard was vacated in Fabi Construction, I would hesitate to predict that, today, a dozen years later, the Commission would find sufficient the review that was made in that case, which consisted largely of inspections of the structure (carried out, however, by a highly-experienced engineer) plus addressing what were in large part cost-estimation issues, such as manpower and equipment needs.

Over and above the “preparatory operations” summarized above, Section V, Chapter 1 of OSHA’s Technical Manual (available on OSHA’s website) proposes further subjects you should consider including in your pre-demolition planning and written engineering survey. Some of those topics are as follows:

• A schedule of safety equipment needs (e.g., respirators, lifelines, warning signs, safety nets, face and eye protection, hearing protection);
  
• A comprehensive plan (if applicable) for confined space entry;
  
• In addition to identifying and shutting off or limiting utility services, informing all workers of the locations of existing and relocated utility services;
  
• Advance provision for the contingency of having to transport a seriously-injured worker to receive medical care. Identify the closest facility, provide in advance of the need for transportation (jobsite gurneys, a pre-identified ambulance service); have information such as phone numbers and the quickest route to the hospital, in the hands of supervisory personnel, etc.;
  
• Ensuring that a properly-stocked first-aid kit is onsite and, if possible (especially if no medical facilities are close by) have a person with a first aid training certificate from the Red Cross, U.S.
• Bureau of Mines, or equivalent onsite;
  
• A detailed fire plan, containing (among other things) prevention in respect of electrical wiring, internal combustion exhausts, the use and storage of flammable materials, heating devices, fire hydrants, and smoking. Other items to include are unobstructed exists, roadways kept clear of equipment, rubbish, etc., unobstructed hydrants (with sufficient water pressure assured), alarms and communications equipment, and the posting of alarm codes and reporting instructions.
  
• Additional measures, described in the Technical Manual, where a chimney, stack, silo or cooling tower is to be demolished.

Fabi Construction involved employees of an experienced subcontractor, on a significant project, jackhammering underfoot, while uncertain of what (if anything) supported the concrete slab on which they were standing, 10 stories aloft. That even able and conscientious people sometimes do such things is a sobering reminder never to take safety in demolition operations for granted.

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.

The Occupational Safety and Health Act of 1970 and regulations thereunder set forth comprehensive rules concerning health and safety. An entire section, 29 C.F.R. § 1926, is devoted to the construction industry, which unfortunately accounts for disproportionate numbers of workplace injuries and fatalities.

Readers of this column are aware that, in addition to all of its detailed safety rules, the Act contains a “General Duty Clause,” (¬ß 5(a)(1) of the Act) which covers areas that are not addressed by any specific standard. It states that the workplace must be free from recognized hazards that are likely to cause death or serious physical harm.

Many employers see the “General Duty Clause” as a bugbear, suspecting that it gives OSHA inspectors a blank check to issue a citation, where the employer has obeyed all known rules, but the inspector finds a condition that could, just possibly, place employees at risk.

As illustrated by a recent case from the OSH Review Commission, however, while at times the precise reach of the General Duty Clause is not entirely clear, it’s not a catch-all that OSHA inspectors can use, at their whim, to impose new regulations.

In Secretary v. Ruhlin Co., the employer was an Ohio construction management and heavy construction company. The project was the expansion of a four-lane highway in Akron. Part of the job required the replacement of a section of the shoulder, to create an additional lane of traffic. A work zone was marked off by 3′ high orange cones. An arrow board directed traffic to the left lane, and informed drivers that the speed limit was reduced from 50 to 30 MPH.

OSHA inspectors observed employees in the work zone who were not wearing high-visibility vests. Such vests were made available by Ruhlin to all employees working within the work zone, but only flaggers were required to wear them.

OSHA issued Ruhlin with a citation, alleging in the alternative that the failure to require the vests either constituted a violation of 29 C.F.R. § 1926.95(a) (the construction-industry standard for PPE, personal protective equipment) or was a violation of the General Duty Clause.

The administrative law judge found no violation under § 1926.95(a), but imposed a penalty on the employer for violating the General Duty Clause.

On review, the Commission upheld so much of the ALJ’s decision that held that high-visibility vests are not encompassed within PPE, but reversed the ALJ’s finding that failure to wear high-visibility vests violated the General Duty Clause.

The Commission’s decision in Ruhlin Co. is instructive, in that it lays out understandably how the Commission approaches cases that require it to interpret the regulations.

Three questions, the Commission found, were presented:

1.
Whether high-visibility vests are PPE within the scope of § 1926.95(a);
2.
Whether the alleged General Duty Clause violation was “pre-empted” by a more specific standard; and
3.
Whether Ruhlin had fair notice that it had to provide high-visibility vests to its employees in the highway construction work zone.

To answer the first inquiry (are the vests PPE?) the Commission asked, first, if ¬ß 1926.95(a), standing alone, unambiguously includes high-visibility vests as one type of “protective equipment.”

As, unquestionably, the language of the standard does not unambiguously define warning equipment as PPE, the Commission looked next to the standard’s legislative history. That, too, proved to be a dead end, as nothing in the legislative history clarifies whether the PPE standard was intended to include warning garments, as distinguished from equipment that acts as a barrier or shield.

Failing a clear answer from the language of the standard or its legislative history, the Commission found it necessary to decide the issue based on whether the interpretation advanced by the Secretary (that high-visibility vests are PPE) was “reasonable.”

In this context, determining “reasonableness” requires taking into account the consistency with which the interpretation has been applied, the adequacy of notice to regulated parties, and the quality of the Secretary’s elaboration of the pertinent policy considerations.

Applying these criteria, the Commission found the Secretary’s interpretation of the standard to define high-reflective vests to be unreasonable. PPE is required to guard against injury or impairment “through absorption, inhalation or physical contact.” Equipment identified as PPE (e.g., safety-toe footwear, helmets, eye and face protection, respiratory protection, etc.) generally acts as a “barrier” or “shield.” Where OSHA requires the use of warning garments, the latter are specifically identified as such in the applicable standard (as those requiring marine terminal employees, cargo-handling personnel, or flaggers in the construction industry to wear warning garments). Where a term is specifically used in one regulation but omitted in another, the Commission reasoned, it should not be found by implication.

The Commission held also that, by neither specifying warning garments as PPE when the standard was promulgated in 1993, or when the related standard for “Signs, Signals and Barricades” was amended in 2002, the Secretary both showed a lack of intent to treat warning garments as PPE, and failed to give fair notice to the regulated community.

After a detailed examination of prior interpretations of the standard, the Commission determined that the interpretation being urged in the case before it was not one that had been consistently applied, and it chided the Secretary for attempting to impose a requirement under the guise of an interpretation, in order to avoid statutory rulemaking procedures to amend the standard.

Having affirmed the ALJ’s vacatur of the ¬ß 1926.95(a) item, the Commission next examined, and rejected, the employer’s argument that the General Duty Clause was “pre-empted” by a specific regulation, 29 C.F.R. ¬ß 1925.200(g)(2) (which incorporated by reference ¬ß 6D.02 of the Manual on Uniform Traffic Control Devices).

This issue will not be explored in depth here, but you should be reminded that the General Duty Clause will not be applied where the matter at issue is addressed in a specific OSHA standard. The Commission in Ruhlin Co. held that pre-emption was not established, because the provision claimed to be incorporated by reference did not contain “mandatory language” (i.e., the word, “shall”) and was therefore only “advisory” — not enough for pre-emption.

The final issue (and the one that best illustrates the Commission’s usual approach, which is to apply the General Duty Clause fairly) was whether Ruhlin had fair notice that it would be obligated, under ¬ß 5(a)(1), to provide high-visibility vests to employees other than flaggers.

The Commission noted that the MUTCD provision, cited by the Secretary as establishing an industry practice, merely states that workers in proximity to trafficked roadways “should wear bright, highly-visible clothing.” The Secretary’s Field Inspection Reference Manual, the Commission noted, is express that “Section 5(a)(1) shall not be used to enforce ‚Äòshould’ standards.” Under the circumstances, the Commission concluded, Ruhlin could not have been sufficiently apprised that it had to require use of high-visibility vests by employees other than flaggers. The ALJ’s finding of a violation of ¬ß 5(a)(1) was reversed, and the citation vacated in its entirety.

The lessons to be drawn from the Ruhlin Co. case are, I believe, the following.

First, despite imperfections as affect every system of laws and rules devised by mortals, on the whole OSHA deserves solid grades for both effectiveness and fairness. The “General Duty Clause” isn’t a license for OSHA inspectors to slam you when frustrated that they can’t identify anything you’ve really done wrong. Citations under the General Duty Clause will be vacated, where the employer has insufficient notice, or where the hazard identified is not one recognized in the industry.

At the risk of sounding like I’m drumming up business for the brotherhood, as a further lesson from Ruhlin Co. I’ll remind you that all “serious,” “repeat,” and “willful” citations are never trifling matters, and require the attention of experienced legal counsel. The reversal in Ruhlin Co. was won by good lawyering, and even where a skilled attorney may be unable to get the citation vacated or withdrawn, he or she can often help to negotiate a reduction in the seriousness level of the citation, and/or a reduction of the penalty.

Keep in mind, also, that in addressing any OSHA citation, there is more at stake than a (usually) modest monetary penalty, at least if you plan to be in construction for any length of time. OSHA citations can have repercussions that far exceed the penalties for the violations alleged. Handling a citation correctly can impact whether the agency regards you as a safety-conscious employer or not — to say nothing of your labor relations, business reputation, insurance costs, eligibility for public contracts, and more.

A further lesson from this month’s OSHRC case is this. As an employer, at times it will occur to you that there are things you can do to enhance employee safety, that go above and beyond what OSHA requires. Sometimes, the line may be a difficult one for you to draw — typically, where it appears that the direct or indirect costs of carrying out the enhancement may be significant, and the reduction of the risk to your workforce may be but very slight.

However, while often there are gray areas, and the line may be difficult to draw between enhanced safety and economic cost, where the line can be easily drawn, why not draw it in favor of protecting your workforce?

The outcome in Ruhlin Co. was, of course, that the employer was spared a monetary penalty for not extending to all workers on its highway jobsite a safety requirement (wearing a high-visibility vest) that does apply to flaggers.

The better lesson, however, is not to dismiss the use of vests as unnecessary, but to consider that they are within a class of optional safety measures that are relatively inexpensive, do not reduce productivity, and are unlikely to meet with much resistance by employees. The construction workforce is, generally, a young demographic within the adult population, and many construction workers are of an age in which they still believe themselves to be immortal.

If, like me, you are old enough to know the facts about mortality, or if perchance you have seen a highway construction worker lose his legs, or his life, when struck by an oncoming vehicle, the fear of being seen as overly protective should not deter you from taking easy, inexpensive, and obvious measures to safeguard any young, heedless, or just plain dumb workers in your employ. The General Duty Clause is not a mandate to find and implement every precaution against every imaginable risk, but neither is it a bar against using your common sense to protect your workers, on whom your business depends.

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.

Man’s use of lead goes back thousands of years (the oldest known lead mine, in Turkey, dates from about 6500 B.C.). It’s a wonderfully versatile material — abundant, cheap, malleable, resistant to corrosion, has a low melting point, and holds pigments well.

Unfortunately, as became fully appreciated not many years ago, the ingestion of lead has serious adverse consequences to human health. The Romans’ use of lead in their aqueducts and domestic vessels is thought to have been a contributing cause to the fall of their empire. Lead was used in plumbing mains in New York City into the 20th century, and had a long career as an air pollutant, after tetraethyl lead was introduced as a gasoline additive in the early 1920s.

Major milestones have been achieved in reducing the general population’s exposure to lead, notably the ban on the use of lead-based paints in residential applications in the mid-1970s, and a phaseout of leaded gasoline, which was essentially complete by the mid-1990s.

However, 30 years after the ban on leaded paint in residences, more than 2% of America’s children have dangerously elevated blood lead levels (“BLL’s”) and lead remains a primary hazard to children, especially in the “Rust Belt,” from Massachusetts and New York west to Minnesota. While it’s widely known that children are most at risk from lead exposure, lead ingested early in life can remain in the body (chiefly in the bones) and cause symptoms many years later, often when an adult undergoes health stresses, such as pregnancy or illness.

In the construction industry, if all uses of lead-based paints were discontinued tomorrow, exposure would remain a substantial hazard for at least 25 to 50 years. Moreover, lead-based paints — resistant to wear and corrosion — continue in widespread use outdoors, and in particular on bridges and elevated roadways and in tunnels.

Construction practices that aim at reducing overall environmental pollution from (among other hazards) lead-based paints being removed from bridges and other metal structures, such as portable containment structures, have had the unintended consequence of exacerbating the dangers to workers.

For the first 20 years of the history of OSHA, the construction industry “enjoyed” a laxer standard in protecting employees from airborne lead — a standard permitting lead concentrations up to 200 micrograms per cubic meter, versus a general industry standard of 50 ?g/m3. In the late 1980s, a spate of lead poisonings on bridge, tunnel, and elevated-highway construction sites, and the discovery that many such sites had astronomic exposure levels, against which respirator use alone was woefully insufficient, led to a tightening of the construction standards in 1993.

Lead risks are greatest to workers who carry out tasks involving abrasive blasting, sanding, burning, cutting and welding. Spray-painting using lead-based paint, the manual removal (by scraping) of lead-based paint, and demolition also carry elevated risks. And, even where containment structures are employed, other trades working outside the containment structure may also be at risk.

While the use of respirators, protective clothing, and other Personal Protective Equipment (PPE) are important elements of protecting employees against lead exposure, these must not be your first line of defense.

While lead exposure is a stubborn, long-term problem in construction to which there is no simple, one-shot solution, current approaches emphasize xstress

OSHA requires you to train your employees concerning lead-related hazards.

Construction workers, it’s well known, too often think of themselves as being tougher than they are, which leads them to go down into unshored trenches, walk about on rooftops without fall protection, and otherwise place their lives and health in danger.

It’s probably not a bad idea, in instructing your workforce about the hazards of lead, to remind them that lead dust is all too easily borne away from the jobsite and into workers’ cars and homes on their clothing, and places family members (and above all young children) at risk of serious health problems.

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.

Recent articles have discussed fall hazards and unsafe practices in excavations and trenches, two leading causes of fatalities and OSHA citations at construction jobsites.

Another leading cause of death and injury on construction jobsites is “injuries caused by contact with objects and equipment,” or “struck-by” injuries.

Such injuries in construction, which per the Bureau of Labor Statistics numbered 82.5 lost-time injuries per 10,000 full-time workers in 2004, surpass injuries of the same class in mining (75.4) and manufacturing (56.6). They are among the “Focus Four” hazards of the Associated General Contractors of America.

Vehicles, masonry wall construction, and falling and flying objects are the most-commonly agents of “struck-by” injuries in construction.

Vehicle safety, the focus of this article, is an issue you need to stress repeatedly with your workforce, because (like descending into unsafe trenches, intending to work “only for a few minutes”) it’s an area in which many workers often fail to observe safe practices, sometimes with deadly consequences.

What you need to do to reduce vehicle hazards is straightforward, but effective only if done conscientiously and consistently.

Vehicles should be checked before each shift. OSHA-compliant seatbelts must be worn (except on equipment designed only for standup operation, or that has no rollover protection). Vehicles should never be driven in reverse, unless the operator has an unobstructed rear view, the vehicle has an audible reverse alarm, or another worker signals that it’s safe to proceed.

Vehicles must be driven only on roadways or grades that are safely constructed and maintained. Don’t allow employees to exceed their vehicles’ rated load or lift capacity, or to carry personnel unless there is a safe place for them to ride.

Bulldozer or scraper blades, end-loader buckets, dump bodies, etc. must be lowered or blocked when not in use, and controls left in neutral. All personnel must be in the clear before using dumping or lifting devices. Haulage vehicles that are loaded by cranes, power shovels, or loaders need a canopy or cab shield to protect the driver. Parking brakes should be set when vehicles and equipment are parked, and the wheels chocked if they are on an incline.

Equipment must be used with extreme care, if at all, near excavations, which should be clearly visible or marked to be conspicuous, and barricaded where practicable. When construction is taking place near public roadways, use traffic signs, barricades or flaggers. Workers must be highly visible in all levels of light. Red or orange vests are required, and warning clothing worn at night must be of reflective material.

It’s critical, too, to inspect and maintain vehicles and equipment with due regard to the punishment they take, and as prescribed in the manufacturers’ operation and maintenance manuals. It’s a sound idea, also, to incorporate some details concerning both the operation and maintenance of frequently-used equipment in your company’s written safety program.

For example, in Secretary of Labor v. Reynolds, Inc., the contractor was laying concrete pipe for a Cincinnati Water Works transmission main. A crew was working through the night under an overpass on Interstate 71. The excavator being used was a Caterpillar 325BL, equipped with a “Pin Grabber Plus” quick coupler. This device allows the operator to change work tools, such as difference size buckets, without leaving the excavator’s cab, and without assistance. Needless to say, the operator in changing tools needs to make certain that the coupler and work tool are securely engaged. After seating the coupler’s two hooks onto the corresponding pins on the bucket, moving the control switch to “lock,” and waiting a few seconds for the hydraulic-powered couple hooks to close around the bucket pins, the operator is supposed to carry out three steps to ascertain that the connection is secure.

First, according to the manufacturer, the operator should retract the bucket cylinder and shake the tool.

Then, he should visually check to ensure that the work tool is properly locked. This, however, is not so simple as it sounds. The overall design of the coupler makes it difficult for the operator to visibly check that the coupler is locked from the cab, and there are no safety indicators in the cab that tell the operator whether the coupler is properly locked.

Thus, in order to check the security of the connection visually, the operator must “curl in” the work tool by rolling the bucket completely around, lifting the stick up all the way, and pulling the stick in to permit the operator to see if the back pin is completely encircled.

A further step to verify that the coupler and work tool are locked is carried out by placing the work tool on the ground, applying pressure, and dragging the work tool backward.

Reynolds’ operator was using the smaller of the employer’s two excavators on the I-71 worksite, due to the low clearance beneath the underpass. The employer was necessarily aware of the potential danger from an unexpected detachment of work tools from quick couplers. A bucket weighing more than 1,500 lbs. is a hazard too obvious to overlook, the manufacturer’s manual was clear that serious injury or death might result if the quick coupler is not properly engaged, and a major construction industry trade group in Ohio had sponsored a seminar on problems with the couplers, following two fatalities in 1999. This particular hazard was also the subject of industry and government publications, including U.S. Department of Labor Safety and Health Information Bulletins in 2004-2005.

As Reynolds’ operator excavated trenches and switched work tools on the night in question, he was conscious both of the tight overhead clearance, and concerns expressed by the Ohio Department of Transportation about the scaring of the pavement. Because of these concerns, he elected not to drag the bucket, and did not perform the curl-in visual check. Instead, he limited himself to shaking the bucket in and out, trusting that that would suffice to tell him if the connection was secure.

About four hours into the work shift, the operator, after placing a pipe in the excavation, moved the stick with the quick coupler attachment about fifteen feet, to reattach the bucket which was sitting on the ground. He lowered the quick coupler onto the bucket, lifted the stick slightly after allowing time for the coupler to clamp down on the bucket pins, shook the bucket several times, and moved it toward the excavation. When the bucket reached the side of the excavation, it detached from the quick coupler, and rolled into the excavation. A pipelayer standing in the trench died as a result of being pinned by the bucket.

The ensuing OSHA citations totaled 5 items, including a trenching violation (failure to provide cave-in protection); a violation of OSHA’S General Duty Clause for failing to properly connect the bucket to the coupler; failure to instruct workers and to include in written safety materials rules about working with quick couplers, and failing to regularly inspect the connection between the bucket and the coupler.

The “General Duty Clause” citation was vacated, essentially because the judge felt Reynolds was not chargeable with knowledge that its operator, with 22 years’ experience, was omitting the “curling in” procedure. The “insufficient safety rules” citation was also rejected, in part because the manufacturer’s instructions, the court felt, were themselves inadequate as to the means to ensure a proper connection.

As the chief thing the employer is striving to avoid is injuries to workers, not OSHA citations, even though Reynolds’ safety rules were not found to be in violation of OSHA, obviously the better procedure would have been to get input from both licensed professional engineers and operating engineers, using the manufacturer’s instructions only as a starting point, and amplifying instructions as may be inadequate and making clear which steps are indispensable. In Reynolds Inc., the employer’s written safety program did not discuss use of the coupler, although a decal on the coupler referred users to the manufacturer’s operation manual. Even the latter, however, failed to describe how to carry out the “curling-in” procedure, and did not stress the “dragging” procedure, which if used would have saved the pipelayer’s life.

Among the citation items that were upheld at trial were a “serious” violation for failure to adequately inspect the quick coupler, and a “repeat” violation, for failure to instruct employees on hazards associated with the use of quick coupler devices.

A post-accident inspection disclosed that the coupler was missing a spring that holds the coupler in the event of hydraulic failure. This missing part was not a factor in causing the accident, but Caterpillar’s manual directs users to inspect the coupler for missing parts, and evidence showed no maintenance at all on the quick coupler from its installation in February 2000 until after the accident in June 2004. For a major construction company (over 800 employees) to have no maintenance done for more than four years on an item of equipment of a type known in the industry to have failed causing some 18 fatalities over roughly a six-year period, and that takes a pounding in day-to-day use, was certainly a lapse in judgment.

The above basics of vehicle safety should be covered both in your company’s written safety program and in toolbox talks. And, even if your operating engineers are experienced and knowledgeable, it’s still a good idea to include in your safety materials information from the manufacturers of your most-used items of equipment, improved upon by a dialogue between a licensed engineer and your operators.

And, in inspecting and maintaining your equipment, your employees who perform these functions should have impressed upon them that it’s not enough that the equipment continues to run, it has to run safely.

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.

This month concludes last month’s “review lesson” using illustrative recent decisions of the OSH Review Commission.

A major theme of last month’s article was that the probability of future litigation with OSHA, and the need to preserve the credibility of both client and lawyer, implies the need to avoid trying to defend against OSHA violations by using “defenses” without substantial merit.

The same doctrine applies to factual assertions. For example, in the case of EMS Construction, the OSHA inspector saw two employees on a rooftop, taking sheet metal off a fork lift, placing it on locations around the roof, and at times approaching within a foot or two of the eave. The employees were not tied off, and no fall protection was in place.

When confronted at the job site, the employer’s foreman didn’t dispute the inspector’s observations, but insisted that there was no violation, because the employees did not come within six feet of the edge of the roof.

At the hearing, the employer’s foreman insisted that workers were required to be tied off 100% of the time; that he had seen the employees in question tied off earlier in the day, and that he had spent only 5-10 minutes in a forklift (from which he could not observe the employees in question) and therefore assumed that the employees remained tied off.

Citing multiple inconsistencies in the foreman’s testimony, the ALJ concluded by stating that it was “frankly unbelievable that employees who had been wearing harnesses and lanyards earlier in the day would shed them during the 5 to 10 minutes their foreman left the roof to use the forklift.” The foreman’s testimony was accordingly rejected.

The preciousness of credibility applies to testimony as well as to legal arguments. Because the immediate monetary stakes in OSHA hearings are seldom large, employers’ witnesses for OSHA hearings are seldom over-prepared, and some lawyers may find communicating with nervous, uneducated, or foreign-born employees to be time-consuming, awkward, and perhaps difficult owing to language issues.

Moreover, the witness who is not an owner or executive may feel pressure to shave the truth, perceiving that any failure to protect the employer’s interests could place his job in jeopardy. And every lawyer who has tried more than a handful of cases has had the experience of even a supposedly well-prepared witness improvising unexpected and flatly-incredible tale while testifying under oath.

To say nothing of it being reprehensible and indeed a crime, false testimony at an OSHA hearing is a strategic mistake of the first order. Today’s hearing is but one of several, perhaps many, that your company may have to defend. Few employees are comfortable lying, and the ALJ makes his or her living by determining (in most cases correctly) which witnesses are truthful and which are not.

Be proactive, therefore, and before your employees even speak with your attorney to prepare to testify at the hearing, meet with each of them privately, acknowledge their loyalty, and assure them that you do not expect, or want, them to testify to anything but the truth. In your own testimony as a principal of the company, uphold the same standard. You do not want to be thought of as less than honest, and even if in a given case you were to get away with it (as where doubtful testimony must be accepted, for want of anything that contradicts it) in the smallish world of OSHA, it’s a good bet that, at a later date and if only indirectly, you’ll pay the price.

The sad case of John Carlo, Inc. illustrates this principle, and brings to mind also remarks I made some months back deploring the machismo of those who work in trenches, and cautioning against entering an unprotected trench, even for a few minutes’ work. In John Carlo, Inc., the employer was installing a PVC sewer line in a 14-1/2 foot deep trench along a roadway.

Throughout most of this endeavor, the work crew worked inside two stacked trench boxes, the bottom one 8 feet high, and the top one 6 feet high.

A decision had to be made, however, when the crew approached a place at which it had to place a 13′ long length of line approximately 12 feet below an existing flexible 2″ diameter gas line, which ran perpendicular to the sewer line.

The encounter with the gas line was not unexpected. Personnel of the employer had known for more than five months) that the gas line crossed the path of the sewer line at the location in question.

The project superintendent’s instructions to the foreman were to remove the top trench box, pull the lower box under the gas line, and have two men to go down in to the trench, and lay the single 13-foot section of sewer pipe.

Before these orders were given and carried out, the project super and the foreman discussed the practicability of sloping the trench, outside the confines of the trench box.

The foreman testified that the super said that the company had bid the job to be no wider than six feet. The employer, apparently, did not want to absorb the cost of select fill to replace dirt as would be removed if the trench were to be sloped where the sewer line had to be fit beneath the gas line.

So, the top trench box was removed, the bottom box was pulled into position, and two men were sent into the trench, with more than 6′ of unshored, unsloped earth overhead.

Within 30 minutes, a large clay ball dislodged, fell into the trench, and killed one of the two men working there.

A brief excerpt from the testimony will dispel any shock that the violation was adjudged to have been willful. Regarding his discussion with the project superintendent (who had 40 years’ experience working underground) as to how to proceed, the foreman testified:

Q. [Did the super] tell you that the trench walls would be vertical . . . without any attempt to slop them back?

A. No, sir. He told me once I pulled the stacker box, because I told him, I said, “You know that we’re not to be able to slope it.” He says, “Yes, I understand that. Y’all be careful.”

* * *

Q. Did you perform any sloping or any benching or anything like that when you installed or when you attempted to do the work in that vicinity?

A. No, sir.

* * *

Q. And at the time that our crew members entered this trench, did you understand that the trench was not in conformity with OSHA guidelines?

A. Yes, sir.

Q. And was it your understanding [the superintendent] was essentially telling you to dig this trench not in conformity with OSHA guidelines?

A. The way I took it, yes, sir, the way he explained it to me, because I asked [the super] about once I pulled the stacker box, about getting steel sheets out here to drive down beside this trenchbox, and he said [the employer] would not do that.

The foreman was insistent that the super told him that they could not slope the trench “because of the way they bid the job plus the existing utilities in the ground.” Again illustrating the futility of lying, the superintendent’s denials were rejected as inconsistent with the testimony of the foreman, the survivor of the two men who had been sent into the trench, and his own prior statement to OSHA.

The ALJ found a “Willful” violation, and imposed a $50,000.00 penalty. What may have befallen this employer in a lawsuit for wrongful death, I do not know.

However difficult it might be to believe for some, the toughest of tough guys is no match for several tons of collapsing dirt. Remember, too, that when you next take an OSHA citation to trial, that proceeding will probably be more about the future of your company (that is, about softening the impact of potential future citations) than about winning on the violation actually being tried. In addition to being the right and lawful way, taking the high road is also the advantageous way to litigate these matters.

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.

Our next two installments will be somewhat in the nature of a “review lesson.” We’ll look at several 2006 decisions of the Commission, as they underscore some of the issues addressed in recent columns here.

The Smoot Construction case is a straightforward reminder of issues and arguments I’ve presented in this space over the past year. A construction employer was cited for three “Serious” OSHA violations, two of them being the failure to fully plank a scaffold (29 C.F.R. ¬ß 1926.451(b)(1)), and failing to fully protect the side walls of a trench (29 C.F.R. ¬ß 1926.652(a)(1)).

Off the bat, we see that the violations in Smoot Construction relate to Public Enemies Nos. 1 and 2 in construction safety: fall hazards, and insufficiently protected trenches.

Scaffold platforms, of course, are required to be fully planked or decked between the front uprights and the guarded supports, each unit to be installed so that the space between adjacent units, and the space between the platform and uprights, is no more than one inch wide.

There is an exception where the employer can demonstrate that a wider space is necessary (such as to fit around uprights, when side brackets are used to extend the width of the platform).

A further exception is for “platforms used solely as walkways or solely by employees performing scaffold erection or dismantling.”

The OSHA inspector found a 9-1/2″ opening in the back of one scaffold on which carpenters were working in a stairwell. He found also a two-foot opening on a scaffold in a second stairwell.

The employer did not dispute that the platform openings existed, but sought refuge in the exception for platforms used for performing scaffold erection or dismantling. The employer acknowledged that its employees were performing form work while standing on the platforms, but argued that they were engaged also in the “fluid process” of erecting a scaffold: the form wall was erected, the scaffold was set, the second panel of the form was added and the scaffold was then raised to the next level.

Both the ALJ and the Commission rejected this argument. The exception, by the clear terms of the regulation, applies only where the platform is used solely to perform scaffold erection or dismantling (or solely as a walkway). I think it was an easy matter for the ALJ and the Commission to conclude that the dual use of the platforms — to do form work in addition to scaffold erection — precluded taking advantage of the exception.

This outcome recalls a remark I made here some months back: in litigating OSHA violations, I try to avoid legal defenses as flimsy as this one. When caught “dead to rights,” generally the client is better served by pursuing a quick settlement (and, perhaps, a reduction in the severity of the violation, or a reduction of the monetary penalties).

Usually, in the absence of fatalities or “willful” violations, OSHA’s monetary penalties are less than the legal fees incurred in contesting violations, and taking them to trial before an ALJ. Generally, in most instances in which it is worthwhile to incur the costs of a contest, it’s due to taking the long view, which takes into account the effect that potential future citations, in combination with the present ones, might have on your company’s eligibility for public work, insurability, and the like.

Putting OSHA to the trouble and expense of litigating a defense without a respectable legal basis (which category includes those that are contrary to the plain language of the regulations) will rarely benefit you in terms of your current citation — the ALJs aren’t stupid — and it can’t ingratiate you with OSHA, the ALJ or the Commission if (when) you have another citation, a year or two from now.

Every lawyer, as you know, wants to appear to be a hard-nosed fighter (and to earn a fee) but keep in mind that an OSHA contest is seldom a one-off affair. You, and your counsel, will likely be seeing OSHA —and possibly even the same ALJ — at some future time. I’m not urging lawyers to forego all legal defenses to OSHA violations as might be difficult or novel, but it’s a good idea to be judicious.

Certainly, you want OSHA to view you as a safety-conscious employer. As OSHA takes seriously its protective mission seriously, it’s in your interest (and your lawyer’s interest) that your lawyer be regarded by OSHA as a professional who is respectful of the agency and regulations, not one who will waste client funds and OSHA’s resources, in litigating issues that have minimal or no support.

The additional, trenching violation in Smoot Construction involved employees of a subcontractors working in a trench 9 feet deep, 8-1/2 feet wide at the top, and 3 feet wide at the bottom in the area in which the employees were working. The dimensions of the trench were not disputed; in unstable Type C soil, the trench would have had to have been 13 or 14 feet wide at the top to be properly sloped.

Smoot’s “defense” on this count was to allege that it had shifted to its subcontractor all responsibility for OSHA compliance for the excavation in question. If you remember my article some months back concerning the “Multi-Employer Rule,” you’ll recall that, where the general contractor could reasonably be expected to prevent or detect and abate the violations by its subcontractor, by reason of its supervisory authority and control over the worksite, it will be held liable for the violation, even if its own employees are not exposed to the hazard(s) in question.

Since Smoot’s subcontract authorized it to correct unsafe conditions created by its subcontractors (and to backcharge them for doing so) and its safety superintendent testified that, if anyone saw a safety infraction by a subcontractor “they come directly to me,” this defense likewise failed.

Having exhorted my readers to show respect for OSHA and its regulations, before closing this installment I should mention the recent case of Roy’s Construction, Inc. In that case, an employer at a jobsite in the U.S. Virgin Islands was issued 3 citations. The employer filed its notice of contest outside the 15 working day period specified by the Act, and sought relief from final judgment under a provision of the Federal Rules of Civil Procedure. The Chief Administrative Law Judge granted the employer’s request for relief, and ordered the Secretary of Labor to file a complaint within 20 days.

The Secretary, however, took the position that the Chief ALJ’s decision was clearly erroneous, and refused to file her complaint, arguing that such refusal was required, to preserve the right to appeal.

Under 29 C.F.R. ¬ß 2200.101(a), when a party fails to proceed “as provided by [the Commission’s] rules or as required by the Commission or Judge, he may be declared to be in default either on the initiative of the Commission or Judge,” after being afforded an opportunity to show cause why he should not be held in default. By refusing to file her complaint, the Secretary in Roy’s Construction failed to comply with rules of the Commission, and the ALJ’s order.

This, the Commission found, had left the ALJ with only two choices: he could “bend to the will of the Secretary” and dismiss the employer’s notice of contest, or vacate OSHA’S citations against the employer. The ALJ chose the latter option, dismissed the OSHA citations, and the Commission on appeal upheld him, finding that the sanction of dismissal — against the government! — was not an abuse of discretion.

It’s a fundamental rule of law concerning administrative agencies such as OSHA that courts will give not uncritical, but nevertheless substantial, deference to the agency, as it is presumed to be highly knowledgeable in interpreting the regulations it is charged by law to enforce. The playing field, therefore, is not — and it’s not supposed to be — altogether level, on substantive regulatory matters.

As to the fairness of OSHA’S procedures, however, while no doubt bad decisions come down from time to time, the employer, litigating against a government agency, should not consider that it’s confronting a stacked deck. In Roy’s Construction, certainly, and probably in the great majority of cases before the ALJs, the government, no less than private employers, is required to show respect for the system Congress created, and to observe the procedural rules.

While no one, and no dispute resolution system, is without flaw, in nearly every case, whatever the outcome, it’s a fair expectation that the respect and the reasonableness I urge my clients to observe will be experienced as a two-way obligation.

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.

Our last installment discussed the importance of, and techniques for, safety training for, the construction workforce that today includes large numbers of immigrants and workers for whom English is not their first language. The importance of effective safety training is underscored by a controversial recent decision by the Court of Appeals in Albany, which holds that undocumented aliens suffering personal injuries on the job are not barred (on account of their immigration status) from recovering damages in the nature of lost earnings.

Reported under the title of Balbuena v. IDR Realty LLC are two cases: that of Balbuena (in which the First Department in Manhattan had narrowed a lower-court holding, and restricted the alien’s lost earnings claims to what he might earn in his home country) and the Majlinger decision (from the Second Department in Brooklyn, which had reversed a trial-court decision which had forbidden the recovery of any lost wages). Balbuena, a Mexican, entered the United States unlawfully, and fell from a ramp while pushing a wheelbarrow on a construction site. He alleged that his injuries rendered him unable to work.

Majlinger, a Pole who overstayed his travel visa, was standing on a scaffold installing siding on the exterior of a building, when the scaffold collapsed, causing his injuries. Neither of these plaintiffs was authorized to work in the United States.

In Majlinger, the trial court granted summary judgment for the defendants, based on Hoffman Plastic Compounds, Inc. v. NLRB, a 2002 decision by the U.S. Supreme Court that held that an undocumented alien, who provided fraudulent papers to obtain employment, could not be awarded back pay for work not performed as a result of an employer’s unfair labor practice. The Appellate Division, Second Department, reversed, holding that New York tort law is not pre-empted by federal immigration law, because neither federal statutes nor the Hoffman decision prohibit an undocumented alien from recovering lost wages in a personal injury action.

In Balbuena, the trial court’s initial holding was essentially like that of the Appellate Division, Second Department, in Majlinger, but the Appellate Division, First Department, modified, to the extent of dismissing Balbuena’s claim for lost earnings, to the extent it sought damages based on wages he might have earned in the United States.

Having accepted appeals in both cases in order to resolve the conflict, the Court of Appeals recounted how Congress (after many years of essentially ducking the issue of unauthorized employment) had incorporated into the Immigration Reform and Control Act of 1986 (“IRCA”) employer sanctions but — although criminalizing the presentation of false documents to establish lawful status — otherwise did not make it a crime for undocumented aliens to be employed without authorization.

The Court of Appeals then discussed various types of “federal pre-emption,” or circumstances in which federal laws will take precedence over inconsistent state laws.

“Express” pre-emption clearly did not apply, as IRCA contained no statement that it intended to pre-empt all legislation by the states regarding workplace safety and the right of employees to recover lost wages. The defendants had argued for “field pre-emption,” or a finding that the expansiveness of the Congressional scheme left no room for state legislation. “Certainly IRCA and related statutes thoroughly occupy the spectrum of immigration laws. But there is nothing in those provisions indicating that Congress meant to affect state regulation of occupational health and safety, or the types of damages that may be recovered in a civil action arising from those laws.

The Balbuena opinions (both the majority and the dissent) therefore focused on the closer question of whether “conflict pre-emption” might apply, or whether an award for lost wages would conflict with or erode the objectives of IRCA sufficiently to surmount the general presumption against pre-emption.

The discussion of pre-emption in these cases led inevitably to the scope of the U.S. Supreme Court decision in Hoffman. The majority in the Court of Appeals (the vote was 5 judges in favor of permitting undocumented aliens to recover lost wages, and 2 against) stressed that the Hoffman decision had relied largely on the alien’s commission of a crime, in tendering false documentation to obtain legal work authorization status. By way of distinction, neither Balbuena nor Majlinger had committed any crime (although their employers may have done so, by failing to verify their employment eligibility).

Although the defendants in Majlinger pointed out that they were not the plaintiff’s employer, but merely the owners of the property, contractors or their agents (a distinction the dissenters found significant) the majority pointed out that Labor Law ¬ß¬ß 240(1) and 241(6) impose nondelegable safety duties, and that it would be impermissible to allow defendants to avoid paying damages on the ground that it was the employer who had violated IRCA.

Perhaps the most compelling argument by the majority was that Congress had “expressly indicated that IRCA was not intended to undermine existing statutory labor protections.” Limiting lost wages claims by undocumented aliens would, moreover, lessen employers’ incentive to comply with the Labor Law, and indeed make it more financially attractive to hire undocumented aliens.

In rejoinder to the dissent’s view that it was “unseemly” in effect to permit parties to recover on the basis of illegal transactions, the majority stated that what they found “unseemly” was the notion that rewarding employers who fail to verify employees’ authorization to work in the United States, as required by IRCA, while at the same time denying relief to a worker injured as a result of a workplace violation of state labor laws.

This last remark suggests what is missing in the dissent: a frank recognition of the astounding ineffectiveness of IRCA (and its rarely-enforced employer sanctions) to curb the explosion in the number of unauthorized aliens employed in the United States. That defect notwithstanding, the dissent in Balbuena does make points that are not readily refuted.

Perhaps the strongest point of the dissent is that, however the same might be rationalized, the lost wages in question are undeniably the fruit of unlawful employment, and the courts have no business in aiding the purposes of illegal transactions. “The courts,” argued the dissent, “show insufficient respect for themselves and for the law when they help a party to benefit from illegal activity.”

The majority decision, while authorizing a jury to “consider immigration status as one factor in its determination of the damages” disapproved the First Department’s holding in Balbuena as would have limited lost wages to what the plaintiff could earn in his home country. The dissent, not unreasonably, equates this with telling juries that “a violation of the law is only as important as you want it to be” and that “the plaintiff’s damages depend on his chances of getting caught; the more likely he is to evade the authorities, the more damages you may award.”

The dissent also argues compellingly in reminding us that plaintiffs are required by law to mitigate their damages, which in the case of workplace injuries means working (if only in less strenuous activities) as one’s physical condition allows. As the plaintiff who fails to mitigate will suffer a reduction in damages, the dissent rightly asks:

Is a plaintiff in a case like these . . . required to mitigate by seeking alternative illegal employment? May he avoid a reduction in his damages by declaring that he has decided, belatedly, not to seek any job for which he may not lawfully be hired? It is surely unfair to defendants to hold that lost illegal wages may be recovered, but that only legal wages may be considered in mitigation; yet it also seems intolerable to hold that the law will punish a plaintiff for failing to violate the law.

Although the dissent argued that its foregoing rationale obviated the necessity to reach the pre-emption issue (and the scope of Hoffman) the dissenters would nevertheless hold that Hoffman should control, and that the distinction offered by the majority (i.e., that the injured plaintiffs, unlike the undocumented alien in Hoffman, had not committed a crime) was unpersuasive. Although there are instances, the dissenters allowed, in which a case in which a lesser offender is suing a greater one may qualify for an exception to the general rule that lawsuits based on illegal transactions will not be countenanced, the correct inquiry is not whether the plaintiffs before the court committed a crime, but whether awarding them lost earnings undermines IRCA’s policy that undocumented aliens may not be employed in the United States.

Hoffman, the dissenters in Balbuena pointed out, had specifically referred to both of the possible ways in which an undocumented alien can obtain employment:

Either the undocumented alien tenders fraudulent identification . . . or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations.

Accordingly, the dissenters concluded, permitting the plaintiffs to recover lost earnings “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress” as expressed in IRCA, and New York’s labor laws (to the extent that they permit such an outcome) are pre-empted.

The majority and dissenting opinions in Balbuena underscore the courts’ difficulties in doing justice to injured workers, while striving to maintain some respect for laws that are not being enforced, and (it appears) are not going to be enforced, by and large, anytime soon. From your perspective, as a construction industry employer, even if you never directly employ undocumented workers, it’s entirely possible that your subcontractors can and do. Since injuries to undocumented aliens can result in liability to your business, a project-wide effort to effectively ensure that safety lessons are learned is essential.

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. 

Last month, we looked at the extent and consequences of drug and alcohol abuse in the construction industry, and concluded that if you don’t think this threatens your company, you’re probably wrong.

Your company needs a substance abuse program, which ideally should include: a drug-free workplace policy, supervisor training, education, testing, and employee assistance. It costs nothing to proclaim a policy, but drug testing (and employee assistance) can strain your budget.

Looking at broader efforts to curb drug use, one can’t help noticing that decades of spending hundreds of billions of dollars, exploding prison populations, and chest-beating about “zero tolerance” has produced only modest, and far from cost-effective, results.

What, then, about workplace drug testing? Is it effective? Economical? Should a construction employer — particularly, one for which the cost is significant — make that investment? What are the benefits and limitations?

Even if you’re skeptical about prohibition as an effective policy, you no doubt concur that your jobsite is a terrible place for people who are high. Even if you question whether weekend drinking or marihuana use should lead to the loss of employment, given the built-in hazards of running a construction site, you have an interest (maybe even an obligation) to discourage and detect the use of the most potent drugs, such as crystal meth, which have a high potential for addiction, impaired judgment, and disordered, or even violent, behavior.

If safety is your top objective, the legality of particular substances, or how their use is depicted by Hollywood and on TV, cannot be your primary concern. There are almost too many substances to keep track of, and they vary as to the impact that they have on the user’s ability to work safely; social and even medical awareness of them as a substance abuse problem; their capacity for compulsive use, and as causes of users’ becoming dependent (or increasing their use to dangerous levels); the ease and expense of testing for them; their availability; the likelihood that users will steal from the jobsite and fellow employees to purchase their drug of choice; and the reliability of existing tests in identifying them.

Thus, all substances that can be tested for are not created equal. A majority of the adult population uses alcohol, which is legal. Binge drinking in the 18-to-25 age group is a growing worry, and no street drug comes anywhere close to alcohol, in terms of negative public health and economic impacts.

However, while most construction contracting company owners probably don’t use crystal meth or crack cocaine, many like a couple of beers after work, drinking together after work or at social functions is not just tolerated but expected, and most have used alcohol to excess now and then. Does widespread acceptance of alcohol reduce its status as a huge public health and workplace safety problem? No, but while you can certainly prohibit on-the-job drunkenness, you probably can’t insist that your entire workforce swear off alcohol entirely.

In addition to such difficulties as there be in fashioning policies that you and your employees will agree are in their interest, while treating the objectively more dangerous substances as such, there are the problems of prescription, “designer,” and off-the-beaten-track drugs.

Americans, as a group, are more highly-medicated than in times past. Many take mood-altering drugs by prescription, or even narcotics such as methadone, as part of a valid medical program to curb their addiction. It may be legally problematic to discharge a methadone patient — but since the substance much resembles heroin, and may indeed impact the patient’s safe performance of his job, should you encounter such a situation, you probably need your lawyer and your consulting doctor talking with your employee’s lawyer and physician.

Warnings not to combine some widely-prescribed medications with alcohol may be understated, to avoid harming the sales of (for example) some antidepressants and other drugs that carry little or no social stigma. One prescription sleep medication thought to be safe has lately come under suspicion, as having contributed to automobile accidents occurring the day following use. Can you test for that? You may know that steroids taken by athletes can damage joints and the liver, and cause an increased risk of heart disease, stroke, and some cancers. Did you know that steroids can also cause dizziness, mood swings, anger, depression, aggression and hallucinations?

Drug testing has a part to play in curbing the safety risks associated with substance abuse by people employed in construction. It’s a mistake, however, to think that if you test for drugs, and fire anyone who tests positive for anything, you will succeed in putting an end to substance abuse in your workforce.

Reality is, as usual, more complex. For example, while most drugs pass out of the system within 3 days or less, marihuana, being fat-soluble, leaves traces that can be detected for a much longer time. Thus, you may feel you’ve struck a blow for your drug-free workplace after firing Employee A following his positive test for marihuana, although he may have used it while on vacation two weeks before. Possibly, this employee worked for you for years, without once being “stoned” on the jobsite.

You could remain blissfully unaware that Employee B is on the road to becoming a chronic user of crystal meth (a highly dangerous and addictive drug associated with paranoia and violent behavior) because your drug testing company views meth as a problem only in other parts of the country, and doesn’t recommend that its New York clients test for it.

Employee C may present as bright-eyed and drug-free, but lately he’s been doubling up on his prescription anti-anxiety medications, and so has become unable to reliably and safely operate heavy equipment. The doctor who advises your testing company has routinely prescribed that medication for years, and enjoyed golf vacations at the expense of its manufacturer. He doesn’t see it as a problem. Employee D may have come close to causing a disastrous accident a few months ago while high on prescription painkillers, which he buys illegally at a bar. He doesn’t abuse this medication often, but is unaware that his binges involve dangerously high dosages. By chance, your company’s random tests have yet to disclose this user’s infrequent, but risky, binges.

For some months, Employee E, an operating engineer, and his girlfriend have taken gradually-escalating doses of GHB, a steroid and “club drug,” on the weekends. This drug may be unknown to your testing company, but can cause delusions, loss of reflexes, tremors, amnesia, vertigo, hallucinations, and coma. It’s also addictive, and withdrawal can be very unpleasant. Employee F is just 18, and hangs out with his younger brother’s friends from the local high school. Buying alcohol is still a problem for the younger guys, and they lack money to buy the pricier drugs, so this young employee joins them in “huffing” a variety of household chemicals (some of which cause brain damage) to get high. Some of these substances are rarely tested for, in part because most adults have trouble imagining that kids will be so dumb as to disregard boldface warnings of brain damage, death, etc. from deliberately inhaling the highly-toxic contents of various containers. Unfortunately, some will.

As you can see, it’s not so simple as calling in a testing lab to work a quick fix of your company’s drug problems. Indeed, there are lucrative business ties amongst pharmaceutical producers, some drug testing laboratories, and many ordinary physicians. Labs connected to prescription drugmakers may be hesitant to test for, and to risk stigmatizing as unsafe, drugs with bona fide medical uses that may nevertheless pose a hazard when abused.

In addition, while usually testing drives down over time (often dramatically) the numbers of employees who test positive, in some instances the high rate of detecting marihuana use presents a potentially deceptive picture. Arguably, it’s not a net gain for health and safety if “recreational” marihuana users switch to more potent and addictive drugs that are harder to detect in urine tests.

If you plan to test, consider whether an outfit vying for your contract is candid about the limitations of its product, or offers the false assurance that hiring them guarantees something close to an end to your company’s drug and alcohol problems.

As a “reality check,” consider transportation, in which the Omnibus Transportation Employee Testing Act of 1991 has for years made testing mandatory for many employees in trucking, aviation, and many other safety-sensitive transportation jobs.

In long-distance trucking, drug-testing has expanded, while regulations governing the drivers’ hours have been weakened, the enforcement of equipment safety rules has been de-emphasized, and government funds for that purpose have been cut.

You can rave until Kingdom Come about the virtues of testing and “zero tolerance,” but if truck drivers must routinely drive 18, or 24 hours or more to pay the mortgage, many of them are going to use amphetamines and other drugs, period.

And, if trucking companies won’t pay to properly maintain their equipment (and government cuts both enforcement and funds) it’s cynical to pretend that firing a handful of drivers who fail drug tests constitutes effective protection for the drivers or the public.

Consider one report from a State Police agency in the western U.S. Despite widespread drug-testing in the long-haul trucking industry, one test of 373 trucks entering the State (and their drivers) found 9.3 percent of the drivers with drugs in their systems (chiefly, cocaine, methamphetamines, marijuana and prescription painkillers). A fourth of the trucks had bad brakes, bald tires, cracked wheels, and other significant problems.

There, in a nutshell, there you have the “bad” news about drug testing — the “silver bullet” remains to be found. Still, there is good news to report concerning drug testing as well.

First, testing methods are becoming more accurate, less intrusive (e.g., saliva collected with a cheek swab) and less costly. Whereas not long ago most tests were for just a handful of substances (marihuana, cocaine, heroin) today companies are increasingly sophisticated about what drugs are widely abused, and they can recommend tests accordingly. The turnaround time on tests has improved, as well.

Second, while sharp drops in the number of employees testing positive may result in part from drug users switching to substances harder to detect, or not tested for, accompanying reductions in absenteeism, employee turnover, and workers’ compensation claims are another matter. These are real benefits, and often they are dramatic. Is testing perfectly effective, or a cure-all? No. Is it more useful and cost-effective than 5-10 years ago? Properly done, yes.

Those of us who are middle-aged and have raised children know that use of drugs and alcohol amongst the young remains a huge problem, and a few who have not become chronic users will suffer tragic consequences from their experimentation. Most parents and drug-treatment professionals would agree, however, that there is a correlation between resistance to substance abuse amongst young people, and their perception that their elders care about what happens to them.

As an employer you’re not your workers’ mom or dad, but if you look around your jobsite, you’ll probably see that many of your employees are young, and few (if any) are hard-core addicts. Testing (and, probably more importantly, spending 40 hours a week working shoulder to shoulder with responsible adults who disapprove of drug and alcohol abuse, and look out for each other) can have a significant positive impact. Even if some stray now and then from the straight and narrow path, by reducing the frequency and severity of your workers’ drug and alcohol escapades, you can greatly reduce the odds of a serious drug-related jobsite event.

Perhaps most importantly, although occasional, “recreational” users of many drugs that can impair safe job performance may escape detection, it’s those who can’t or won’t limit their use — despite knowing that random testing is a daily possibility — who pose the gravest danger. Can you afford not to identify these users? Does it benefit them to delay detection, and having to face up to their problem?

So long as you are aware of the limitations of drug-testing, and can live with success in less than absolute terms, you will probably find testing to be worthwhile.

As builders, engineers, and lawyers, we live by identifying problems and applying solutions. Drug and alcohol abuse, however, is one of those chronic problems that won’t be solved simply, or once and for all. Since ignoring the problem can’t be an option, your choice is to wrestle with it wisely, or ineffectively. How you address it can result in lives saved or lost, and will probably have a great impact on the profitability, or even the survival, of your company. Therefore, get the best — and most disinterested — professional advice you can afford, set a good example, and listen to the feedback that your workers can provide.

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.

You have probably heard the term “competent person” used in connection with accident avoidance and OSHA compliance. Having employees who are fully qualified as “competent persons” should be a key part of your company’s safety and compliance program.

One reason for this is that failure to provide a “competent person” is one of the most frequently cited OSHA violations. Another is that, in terms both of legal compliance and avoiding jobsite accidents, it must not be assumed that experience and common sense equal “competence.” Thus, it’s critical to know the definition and qualifications of the “competent person.”

No less than eighteen sub-parts of 29 C.F.R. ¬ß 1926 (OSHA’s construction standards) and six subparts of the ¬ß 1910 general industry standards, require a “competent person.” Overall, in the ¬ß 1926 construction standards, there are more than 120 references to a “competent person.” The needs of a particular employer, of course, in providing “competent persons” will vary according to the trade and the exact activities carried on by that employer.

As an example, if your company supplies concrete products, you need to review, and may be required to comply with, “competent person” requirements under the following rubrics:

• Section 1926.20, General Safety and Health;
  
• Section 1926.53, Ionizing Radiation;
  
• Section 1926.101, Hearing Protection;
  
• Section 1926.103, Respiratory Protection;
  
• Section 1926.251, Material Handling;
  
• Section 1926.404, Electrical (assured grounding);
  
• Section 1926.450-454, Scaffolds;
  
• Section 1926.500-503, Fall Protection;
  
• Section 1926.550, Cranes and Derricks;
  
• Section 1926.552, Material hoists, personnel hoists and elevators;
  
• Section 1926.705, Concrete and Masonry (lift slab operations);
  
• Section 1926.800-803, Underground construction; and
  
• Sections 1926.1053 and 1926.1060, Ladders and Stairways.

The foregoing checklist shows that any construction job may — and most large jobs will — demand not merely a safety director, but several “competent persons,” each having specialized knowledge concerning hazards associated with particular conditions and activities at the site.

Management is well-advised, therefore, to consider the actual qualifications required for “competent persons” against every relevant standard. However, while the incremental knowledge required of the truly-qualified “competent person” can literally be a matter of life and death, in most areas that increment can be acquired with a few days (or even hours) of specialized training.

What, then, is a “competent person”?

The basic definition appears in 29 C.F.R. ¬ß 1926.32(f): A “competent person means one who is capable of identifying existing and predictable hazards in the surroundings and working conditions which are unsanitary, hazardous or dangerous to employees, and who has the authorization to take prompt corrective measures to eliminate them.”

The definition has two main parts: (1) the ability to identify existing and predictable unsafe conditions; and (2) the authority to take prompt corrective measures.

Note two potential problems with the definition: (1) it fails to describe (or even require) formal instruction, as will establish “competence;” and (2) it mentions “authorization” to take corrective action, without expressly imposing a duty on the competent person to actually take the action.

Some studies have shown that, in many construction contexts, persons designated as “competent” often lack formal training in the relevant standards. Not surprisingly, safety experts find a correlation between such lack of formal training, and jobsite conditions that do not fully comply with OSHA requirements.

The “competent person’s” true authority is where the rubber meets the road regarding management’s support for employee safety. It’s problematic to designate an employee as a “competent person,” if there’s an understanding (express or implied) that stopping work, or blowing the whistle on a dangerous condition, will subject the “competent person” to browbeating (or reprisals).

It’s neither fair, nor effectively self-protective, for an employer to hang its “competent person” out to dry, once the employer is cited by OSHA. If denied proper training and/or genuine authority, the “competent person” whose legs have been cut out by management will probably be unable — and none too eager — to protect his employer, if exposed to harsh cross-examination, and public humiliation, following a fatality or serious injury.

And, while the risk to the employee is appreciable, the employer’s risks are potentially much greater, and may include fines, settlements, or even criminal liability (and, or course, legal fees).

Accordingly, the advisability of formal training should be inferred as an extension of the requirements of 29 C.F.R. ¬ß 1926.21(b)(2), which provides: “The employer shall 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.”

An abundance of resources is available to equip “competent persons” with the knowledge they need to effectively carry out their responsibilities. Your employees’ union, if there is one, can be a resource. In all events, it’s relatively easy to find moderately-priced training, in most pertinent areas, by searching online.

A review of the topics taught in one course for “competent persons” on the trenching and excavation standards should show that, while “competency” usually will require some expertise beyond that gained by jobsite experience, it’s seldom “rocket science.” Here’s the syllabus for a half-day course:

• Introduction to the applicable regulations;
  
• Different types of excavations (trenches as a sub-species of excavations, sloped excavations, maximum allowable slope);
  
• Excavation hazards, e.g., cave-ins, falls (both persons and equipment); water accumulation and standing water, electric shock, structural instability, and hazardous atmospheres;
  
• Different types of soils (competent and incompetent soils, stable rock, Types A, B and C soils, layered soils) and identifying procedures;
  
• Shoring systems (when required; identifying the right types of materials);
  
• Using shielding in excavations;
  
• Removal of support systems;
  
• Disposing of spoils;
  
• Responsibilities of the “competent person” and others;
  
• Inspection requirements;
  
• Safe work procedures, including how to cross trenches; proper entry and exit from excavations; exposure to vehicles and to falling loads; warning systems, and emergency response.

The dangers of failing to give the “competent person” training to acquire the modest incremental knowledge needed to effectively discharge his duties are shown by the recent case of Secretary v. EMCON/OWT, Inc.

That case involved a crew of men working in an excavation at a Florida landfill.

Landfills are laid out in cells lined with high density polyethylene. As cells fill up and the garbage in the cell deteriorates, methane gas is produced. The methane must be collected by wells located around the landfill, and vacuumed into gas headers to a central location, where it is burned off.

Perforated clean-out lines are installed beneath layers of gravel and sand in each cell prior to garbage being deposited. Leachate (rainwater falling onto the accumulating garbage) percolates through the sand and gravel into the perforated collecting lines, which drain it to the landfill’s sump area.

The 5-man work crew at the landfill had excavated a trench, exposing the leachate clean-out pipe that they needed to cut into. One worker, Seaborn, tried to cut the pipe, using a gasoline-powered chainsaw. The pipe released an odorous gas, and the chainsaw stopped working. Seaborn left the trench, and went to retrieve an electric saw to use instead.

Returning, Seaborn noted a foul odor, and exited the trench. The crew foreman, Diloreti, entered the trench to make the cut, but likewise hesitated because of the odor. Warne, a third crew member, expressing impatience with his co-workers, entered the trench, bent over the pipe to make the cut, but stood up and said, “Whew.” A fourth worker, Garno, jumped into the trench, bent over the pipe, stood up, said “Something is not right,” and passed out. Seaborn went to assist Garno. Diloreti tried to assist Warne, but passed out himself. All four crew members were removed to hospital, but Warne died en route, or shortly after arrival.

The employer was cited for three violations, one of which was a failure to inspect the area by a “competent person” following a “hazard-increasing occurrence,” 29 C.F.R. 1926.651(k)(1).

Meier, the supervisor (and only crew member not present when the workers were overcome) had inspected the excavation on the morning of the occurrence. The ALJ rejected the employer’s depictions of Meier as its “competent person,” and this required inspection as constituting compliance with the standard.

In addition to the required daily inspection, the ALJ found, an additional inspection must be made “after every rainstorm or other hazard increasing occurrence.” The Secretary considered Diloreti, the foreman, as the true “competent person,” and asserted that cutting into the leachate pipe was a “hazard-increasing occurrence.”

The ALJ agreed with the Secretary that three incidents, over a 20-minute span, gave notice of likely employee exposure: (1) the stoppage of the gas-powered chainsaw, indicating a shortage of oxygen; (2) a strong, unpleasant odor arising from the pipe; and (3) the immediate physical discomfort experienced by the crew members upon entering the trench to make the second cut.

Faced with these unusual incidents, the ALJ found, Diloreti (as the acting foreman) ought to have tested the atmosphere with a gas meter, available in the crew’s truck. He did not do so.

Diloreti had worked for the employer for 10-1/2 years, and had risen from laborer to technician to operator to foreman. He had never received “competent person” training, and only vaguely understood what the term meant. Although plainly conscientious and stricken by the death of his co-worker, Diloreti testified that it had not occurred to him to test the excavation with a gas meter, after the crew cut the pipe.

The ALJ held that Diloreti was unqualified to act as a “competent person;” that he had failed to identify a recognizable hazard; that an inspection required after a hazard-increasing occurrence was not made; that Diloreti’s knowledge of the foul smell, and his crew members’ reactions, would be imputed to the employer, and the employer had failed to be reasonably diligent in training its employees. Accordingly, a “serious” violation was found, and a significant penalty imposed.

This occurrence would probably have been avoided and a life saved, had Diloreti had the modest incremental knowledge that would have led him to retrieve a gas meter, and test the atmosphere in the trench.

The main lessons from the EMCON/OWT case are that experience must not be assumed to equal “competence,” and modest investments in “competent person” training afford employers serious “bang for the buck,” and a sharp reduction in the likelihood of avoidable, and preventable, employee injury.

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.