U.S. passenger vehicles have come equipped with seat belts for more than forty years. During that time, seat belt use on U.S. roadways is believed to have saved some 200,000 lives.

Despite decades of public service announcements urging seat belt use, it may surprise you to learn, as recently as 1994, seat belt use by U.S. motorists was only about 58%. In the decade since, “Click It or Ticket” laws have pushed that number up to about 80%, but even today, an estimated 6,000 traffic fatalities each year are attributed to the failure to use seat belts.

As millions of American drivers risk death and dismemberment daily by operating automobiles on highways without using seat belts, it will come as no surprise that construction workers, operating heavy equipment off-road and at low speeds, sometimes fail to “Buckle Up for Safety.”

Construction industry employers know, or certainly should know, that they are required by OSHA (29 C.F.R. ¬ß 1926.602) to provide seat belts for offroad vehicles, and equipment that meets the requirements of the Society of Automotive Engineers’ standard, “Seat Belts for Construction Equipment” (J386-1969).

While clearly employers must provide seat belts on off-road construction equipment, a further question is whether the employer violates OSHA, if it fails to ensure that employees actually use the seatbelts. If an OSHA compliance officer happens to spy one of your employees operating a piece of equipment without an available seat belt being fastened, will you have to prove “unavoidable employee misconduct” to avoid being cited for an OSHA violation?

As an employer, of course, your objectives are to minimize jobsite risks to your employees and to avoid OSHA citations altogether (which is better than prevailing in the Court of Appeals, based on subtle legal arguments). As a practical matter, therefore, it’s certainly not a bad idea to have, and to enforce, rules requiring the use of seat belts.

Curiously, however, as a legal matter it appears less than certain that the employer, technically speaking, violates OSHA if it provides the seat belts, but fails to ensure the belts’ actual use by its employees.

In addition to explaining why I believe this to be so, I want to mention that OSHA regulations and enforcement are intended to promote workplace safety, and like most laws and regulations concerning safety (building codes are a prime example) OSHA regulations are based on currently-accepted assumptions. Unavoidably, they sometimes lag behind advances in technologies, practice, and materials, and current understandings about what really works in promoting safety, and what doesn’t.

OSHA compliance officers sometimes cite construction companies for failing to assure actual seat belt use, but while there are plausible arguments in support of such citations, they are something of a stretch. For example, one basis cited in support is the requirement that employers assure the use of “Personal Protective Equipment.” A DOL interpretation letter from 2004, for example, states that seatbelt use (enforced by the employer) is sometimes mandated under 29 C.F.R. ¬ß 1926.28(a), which reads:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.

However, while the “Personal Protective Equipment” rules have been cited as justification for requiring seat belt use, this particular interpretation letter addressed whether operators of mobile cranes with operator cabs are subject to a seat belt requirement. The conclusion was that the crane was a “motor vehicle” when being driven or used to transport employees from one place to another (including off-road transportation) but that the regulations’ definition of “motor vehicles” did not embrace the same piece of equipment when used in lifting operations. Indeed, this interpretation letter opined that, if used exclusively in lifting operations, the crane would even not be required to have a seat belt.

Although we did not find a case giving a definitive answer to the question, there are at least one or two older cases in the OSH Review Commission that suggest that the use of seat belts on construction equipment may be required under OSHA’s “General Duty Clause,” 29 U.S.C. ¬ß 654(a)(1).

In the absence of a clear rule, whether in the regulations or in the case law, a substantial (if legalistic) argument can be made that seat belt use is not required on the construction jobsite, as follows.

Generally, the General Duty Clause will not apply where a specific OSHA standard can be shown to govern the issue in question. OSHA has a seat belt standard specific to the construction industry, as mentioned — plus three others applicable to logging operations, high-speed gantry cranes used in marine terminals, and tractors used in agricultural operations.

The agricultural and logging seatbelt standards, significantly, both require not just that belts be available, but that the employer ensure that the employees actually use them and, indeed, that they tighten them properly. The construction industry standard specifies neither that the employer must ensure use of the belts, nor that it ensure the correct use of the belts.

OSHA regulations are generally construed by the same rules that apply to legislative enactments. Although cynics may be horrified by the notion that the legislature is presumed to know what it is doing, in fact the law requires precisely that presumption. Enactments on the same subject matter, even if adopted years apart, are required to be read together and — except where the result is clearly absurd — construed and harmonized, as though they were a unitary enactment.

Thus, if (1) OSHA adopts several, industry-specific seatbelt standards; and (2) it provides in certain of them that the employer must (in addition to merely providing seat belts) take care that employees buckle themselves in, and fasten their seat belts properly, while (3) omitting any such requirements in the others, then, by the rules of interpretation just mentioned, there’s a respectable legal argument that OSHA must be deemed to have left the additional requirements out of the construction regulations advisedly.

That argument is worth considering if your get cited by OSHA because your employee has been caught not wearing a seatbelt. Nevertheless, larger issues are obviously implicated.

Some relevant concepts can be found in a 1979 OSH Review Commission decision, Secretary of Labor v. Royal Logging Co. In that case, a logger working in Montana was killed when his ROPS-equipped crawler (tracked) tractor with a front (bulldozer) blade overturned, pinning him beneath the ROPS. This bulldozer-equipped tractor, or “cat,” was used to create initial trails, to mark the area within which trees are to be cut, and later to clear debris, smaller trees and felled timber.

At the time of the fatal accident, the operator had been cutting strips on a “35 to 40 percent” grade. Experts testified that a “20 percent” grade (or about 18 degrees) might cause a “cat” to roll over; that the equipment was nevertheless routinely operated on grades as steep as 36 degrees, and that (as of 1975, when this fatality occurred) deaths due to rollovers were common events in the logging industry.

“Cat” operators were resistant to using seat belts, as they considered the risk of being thrown out and crushed by the ROPS or the cat itself to be lower than the risks posed by tree branches which, when placed in tension and then released by the passage of the cat, can sweep along and into the side of the cab, injuring the operator, or may break off or catch, and fling rocks and dirt at the operator. Many cat operators shunned wearing seat belts due to these “sweepers.” A kindred hazard, the “jillpoke,” is a branch with a sharp broken end, which may be thrust into the cab with sufficient force to tear the seat. These hazards are encountered perhaps a dozen times a day, and operators often jump out of the cabs of their cats to avoid them.

Although apparently no loggers had been killed or seriously injured by “jillpokes” or “sweepers” since a death from a jillpoke some 30 years before, the consensus in the industry (as the employer’s expert testified) was that seat belts should not be worn by cat operators.

Although a specific use-of-the-seatbelt requirement was later adopted for the logging industry, at the time of the Royal Logging Co. case none was in effect, wherefore the Secretary cited the employer under the “Personal Protective Equipment” clause related to the construction industry, and the “General Duty Clause.”

The ALJ found that, although the decedent had not been engaged in construction operations, the equipment he was operating was identical to a kind used in construction, and indeed was more susceptible to rolling over in logging operations than in construction operations, because of the terrain. In addition, the ALJ found that, in the logging industry, the failure to wear a seat belt in ROPS-equipped earthmoving equipment was a recognized hazard.

The upshot of the preceding discussion is that a means of abating a hazard (wearing a seat belt) may be challenged as “infeasible” not only if the method of abatement proposed is impracticable, but if it would expose employees to equivalent or greater hazards. Thus, construction employees may be justified in not wearing seat belts, when using equipment and when engaged in operations in which using the belt is shown to be riskier than not wearing it. The employer, to be sure, has the burden to show that this is the case.

Case results — including cases in which OSHA reduces or eliminates penalties before litigation, based on the legal uncertainty of its position regarding an actual citation — may bring about change or clarification in the regulations themselves, complementing more formal rulemaking procedures.

Notwithstanding some degree of uncertainty regarding whether OSHA can penalize an employer’s failure to ensure seat belt use by construction equipment operators, such use should be required (and appropriate rules communicated to employees and enforced) absent something like a consensus amongst operators of specific kinds of equipment, used for specific purposes, that countervailing safety considerations (e.g., the need for agility, visibility, or the ability to evade objects intruding into the cab) render seat belt use more dangerous to the operator than leaving the seat belt unused.

Where strict adherence to an OSHA standard fails to further OSHA’s purpose — to protect the lives, health and safety of employees in the workplace — often it will be worth it to, first, try to negotiate away the citation, and then (perhaps) to contest it, even if technical noncompliance is clear. Although every case is different (consult your lawyer!) OSHA, the Commission, and the Courts, while dismissive of arguments that are clearly pretextual, are usually receptive to reasonable, good-faith arguments that, under the circumstances, strict enforcement should be excused as counterproductive to OSHA’s primary aims.

A notable caveat, of course, is that an employer with a poor history of OSHA violations will probably have both a credibility problem, and possibly a greater risk of a finding of “willfulness,” and the repercussions that can result from such a finding. In a given case, however, a well-supported argument that seat belt use is counterproductive in the specific context for which the employer has been cited may succeed or, failing that, result in a reduction of penalties. And, if your contest helps to bring about changes in the regulations that clarify precisely what is required of employers and/or bring OSHA more in line with workplace safety realities, that will be a worthwhile side effect of your efforts.

Again, consult OSHA counsel and, in the meantime, fasten that seatbelt before you put your car into drive.

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1The requirement applies to “scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment.” There is a related standard that applies in the case of agricultural and light industrial tractors.

2 Apparently, this testimony meant a grade of about 31.5 to 36 degrees.

3 Note that, sometime after the Royal Logging Co. decision, OSHA seatbelt rules for the logging industry were made more stringent, overruling the loggers’ judgment that “sweepers” and “jillpokes” were more dangerous than rollovers.

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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.

If divers are employed from time to time on your projects, you should become familiar with OSHA regulations concerning diving operations. While this may be specialized work ordinarily done by subcontractors, remember that if you are the general contractor on a project, you may be liable under OSHA’S “multi-employer doctrine” (as the party with general supervisory control over the worksite) for violations exposing divers to hazards. The general contractor’s duty, as you know, runs not only to its own employees, but “extends to protection of all worksite employees.”

Section 1910.422 of the Code of Federal Regulations, “Procedures during dive,” sets forth the required safeguards. To abbreviate the rules slightly, the regulation addresses eight aspects of diving operations.

Water entry and exit. The first is entry to and exit from the water. There must be “means capable of supporting the diver” for entering and exiting the water. The means of exiting the water must extend below the water surface, and there must be means to assist an injured diver from the water, or into a bell.

Communications. Operational, two-way voice communication systems must be used between each surface-supplied air or mixed-gas diver and a dive team member at the dive location or bell, and (if used) the bell and the dive location.

Decompression. Decompression, repetitive, and no-decompression tables (as appropriate) shall be at the dive location.

Dive Profiles. A depth-time profile (including, when appropriate, andy breathing gas changes) must be maintained for each diver during the dive, including decompression.

Hand-Held Power Tools and Equipment. Such tools and equipment must be de-energized before being placed into or retrieved from the water. They must not be supplied with power from the dive location until requested by the diver.

Welding and Burning/ A current supply switch to the welding or burning electrode must be tended by a dive team member in voice communication with the diver performing welding or burning, and kept in the open position (to interrupt the current flow) except when the diver is welding or burning. The welding machine frame must be properly grounded. Cables, electrode holders, and connections must be properly insulated, and rated for the maximum current required by the work. Divers performing these operations must be furnished with insulated gloves. If closed compartments, structures or pipes which are to be welded contain flammable vapor, or if the work itself may generate such vapors, they must be vented, flooded, or purged with a mixture of gases which will not support combustion.

Explosives. If explosives are to be used in conjunction with diving operations, the regulation cross-references Sections 1910.109 and 1926.912 of the Code of Federal Regulations, which regulate the transport, storage, and use of explosives. The electrical continuity of explosive circuits must not be tested, until the diver is out of the water, and explosives must never be detonated while a diver is in the water.

Termination of the Dive. The working interval of a dive must be terminated if the diver requests it, if he fails to respond appropriately to communications or signals from a dive team member, or if communications are lost and not quickly restored between the diver and dive-team member at the dive location (or between the person in charge, and the person controlling the vessel in liveboating operations).

In Lanzo Construction Co., Inc. v. OSHRC, the contractor was employed by the Miami-Dade Water and Sewer Department to install a force main sewer pipeline. The work required a diver to go into excavated trenches, filled with murky water in which visibility was zero, to assist in connecting sections of the pipeline.

The OSHA compliance officer found the contractor’s diver under about ten feet of water in an excavated trench. The diver , using surface-supplied air diving equipment, communicated via pull and tug signals with a line tender at the surface.

Although parts of the excavation in which the diver was working were protected against cave-ins by trench boxes, the contractor considered that installing protection against cave-ins at the portion of the trench that intersected utility lines was more dangerous than using a trench box there. Of course, it was in this unprotected area that the OSHA inspector happened upon the contractor’s diver.

The published decision from the 11th Circuit U.S. Court of Appeals in Atlanta omitted a full list of the seventeen violations for which this contractor was cited. For purposes of the appellate case, the two that remained unresolved were the failure to provide a two-way voice communications system, and the failure to provide protection against cave-ins in the portion of the trench in which the diver was observed working.

In the Lanzo Construction case, a lawyer for the Department of Labor had, during proceedings prior to the hearing before the Administrative Law Judge, committed an ethical violation by twice contacting the diver, without the consent or knowledge of the employer’s attorney. Hoping, possibly, to downplay these incidents the ALJ found only “serious” and not “willful” violations of the two standards mentioned, even though (with reference to the two-way communications system) the employer had been cited three years previously for the same violation, the diver testified that an operational two-way voice system had not been in use for three years prior to the current citation, and the company’s own safety manual required it.

The OSH Review Commission upgraded the violations to “willful,” and rebuffed the employer’s attempt to fashion a defense of “good faith” to the violations

As for the unauthorized contacts by the government lawyer, these were criticized, but the Court of Appeals determined that they had not actually prejudiced the employer. Accordingly, the Court upheld the decisions below, which denied dismissal of the violations, based on these ethical violations.

The potential repercussions of a “willful” OSHA violation, of course, far surpass the small cost to the employer of providing the two-way voice communications for its diver. Having once been cited for this violation, this contractor effectively invited a second, “willful” violation. While, certainly, there are OSHA regulations that are complex and highly technical, the rules for diving rules are largely matters of common sense. If your company employs divers, or divers work at your jobsites, it’s in your interests to ensure that these rules are complied with.

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.

Following up last month’s article, let’s survey some OSHA cases for lessons about particular issues relating to excavations, and some practice pointers as well.

In Secretary of Labor v. McLeod Land Services, Inc. the inspector found two employers in a trench, as sections of pipe for a drainage line were being installed. A 154,000-pound excavator was hanging over the end of the trench. The vertical wall that supported the excavator was not shored, braced or supported. When the compliance officer ordered work to stop, the excavator had just been used to place an 8-foot section of 24″ concrete pipe. The excavator bucket was hanging above that pipe, and one employee in the trench stood directly below the bucket and the excavator arm.

The employer was cited for failing to protect its employees from equipment that could pose a hazard by falling or rolling into excavations, in violation of 29 C.F.R. ¬ß 1926.651(j)(2). The employer was also found to have violated OSHA standards that require daily inspections of excavations by a “competent person,” and that the employer instruct its employees in the recognition and avoidance of unsafe conditions, and the regulations applicable to his work environment.

A thread common to each of the OSHA violations in McLeod Land Services is that employers cannot rely upon the experience of its employees. “An employer has a duty to provide adequate training even if employees are experienced.” In McLeod, foremen and management employees received comprehensive materials on excavation and trenching, but “rank and file” employees received only a “mini” version of that manual. The company relied on foremen to relay information from monthly safety meetings to rank and file employees, but there were no regularly-scheduled toolbox talks, and attendance was optional at meetings for non-supervisory personnel. The employer did nothing to ascertain that the workers actually read and understood the abbreviated safety manual they were given. The Commission found this to be insufficient.

In Secretary v. Lakeland Enterprises of Rhinelander, Inc., a co-owner of the employer was excavating an 18-foot deep trench, as an employee in the trench dug by hand around a sewer pipe, so that the backhoe would not rupture the line. There was a ladder lying alongside the trench, but no ladder in the trench, to provide a means of egress for the employee. We note this case for three points. First, a safety program that looks good on paper, but is not sufficiently communicated to employees (and enforced) is useless as a defense. Second, in Lakeland, the backhoe operator did not order the endangered employee out of the trench, but continued to dig out the nearly vertical trench wall close by, actually increasing the danger. Third, it can negate an “unavoidable employee misconduct” defense, and support a finding that a violation was willful, that an owner or other supervisor ignored the violation, and the safety of the employee.

A similar lack of common sense was displayed by the employer in Secretary of Labor v. B&B Plumbing, Inc. In that case, the principal of a sanitation plumbing contractor, engaged in building a school, found that, due to a pipe not shown on the plans, a 75-foot long, unshored trench, that was to have been a maximum of 4′ deep, was 8′ deep in places, with vertical sides and no ladders. The contractor “knew shoring was necessary in an 8 foot deep trench, but he did not have the equipment.” Employees were allowed to work in the trench, and one died in a cave-in in the 8′ depth area. “Where the competent person finds evidence of a situation that could result in a possible cave-in” or other dangers, “exposed employees shall be removed from the hazardous area until the necessary precautions have been taken to ensure their safety.” 29 C.F.R. ¬ß 1926.651(k)(2). This employer was cited also for violating the “no-brainer” OSHA standard that employees working in trenches should wear hard hats. 29 C.F.R. ¬ß 1926.28(a).

Similarly, in Secretary v. RMS Construction, Inc., in addition to allowing employees to work in an unshored, unsloped trench as deep as 11′ and not equipped with ladders or other exits, the workers were engaged in form work, and tying rebar that was not capped. Although, strictly speaking, 29 C.F.R. ¬ß 1926.701(b) speaks of guarding “protruding reinforcing steel . . . to eliminate the hazard of impalement,” the Commission upheld a “serious” violation, as employees could have sustained deep cuts or wounds had they tripped and fallen against the rebar.

Long experience in trenching does not necessarily make one a “competent person,” as OSHA requires to be on-site, and to perform at least daily inspections. In McLeod, a foreman, Jenkins, told the compliance officer that he was the “competent person” having dug trenches for 25 years. However, Jenkins, when asked about his knowledge of soil mechanics and whether he had done any field tests to classify the soil, admitted that he guessed he must not be the “competent person.” The definition of “competent person” in 29 C.F.R. ¬ß 1926.650 is as follows:

Competent person means one who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

The employer in McLeod Land Services failed also to establish its fallback position, that one Brenton, a utility superintendent who kept a logbook to record daily conditions, comments and jobsite conditions, was the “competent person.” However, as Brenton’s logbook excerpts did not show that he had kept the logbook in the capacity of a “competent person,” there was not even a suggestion that Brenton had ever actually inspected the trench in question, and the employer’s general superintendent (and the boss of both Brenton and Jenkins) had identified Jenkins, not Brenton, to the OSHA compliance officer as the “competent person,” this proffer was likewise rejected.

In P. Gioioso & Sons, Inc. v. OSHRC, the employer was laying water lines on a project in Massachusetts. OSHA compliance officers chanced upon an 18-foot deep trench at the site. What they saw was alarming:

[T]he trench’s walls were unsloped and unsupported, the two workmen standing in the trench were visible only from the shoulders up, and a ten-foot section of cast metal pipe was suspended aloft from the bucket of a piece of heavy construction equipment located at one end of the trench.

As an aside, employers cited for excavation violations sometimes try, usually without success, to assert a defense based on Fourth Amendment protections against warrantless searches. As illustrated by Secretary v. Arapahoe Utilities and Infrastructure Inc. (involving a trench dug on a public golf course) the employer has no reasonable expectation of privacy where its activities are conducted out of doors, and open to public view. Whatever the public can see, an OSHA inspector is entitled to look at without a warrant.

The employer in Gioioso filed a timely notice of contest, but the ALJ found that the violations had occurred, and imposed monetary penalties. In its PDR (Petition for Discretionary Review), the employer contested the ALJ’s finding of fact, whether the employees were exposed to trench-related hazards without an adequate protection system, and the ALJ’s rejection of its “unpreventable employee misconduct” defense.

On appeal to the U.S. Court of Appeals, the employer sought to raise three issues in addition to those raised in its PDR. Too late, the employer found it had committed a common procedural misstep. The doctrine requiring the exhaustion of administrative remedies bars consideration of unpreserved defenses. While providing for review by a court of appeals, Congress directed that “no objection that has not been urged before the Commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” The employer’s argument that urging an objection before the ALJ was the functional and legal equivalent of urging it before the Commission was rejected. The court of appeals stated:

[A]n aggrieved party desiring to preserve an issue for judicial review must raise it before the ALJ, articulate it clearly in its PDR, and offer a modicum of developed argumentation in support of it.

Failing that, the court of appeals concluded, “we lack jurisdiction to hear those [unpreserved] issues.” Thus, all available issues must be raised both before the ALJ at the hearing, and in the PDR.

In Secretary of Labor v. Complete General Construction Co., the employer, cited for its failure to locate a spoil pile at least 2 feet away from the excavation, argued that language in the first sentence of 29 C.F.R. ¬ß 1926.651(j)(2), (viz. that “[e]mployees shall be protected from excavated or other materials or equipment that could pose a hazard by falling or rolling into excavations”) renders less than absolute the prescription, in the next following sentence, that “[p]rotection shall be provided by placing and keeping such materials or equipment at least two feet . . . from the edge of excavations” or by using retaining devices. The employer claimed its spoil pile, although within 2 feet of the excavation, was sloped and “very stable,” and thus posed no hazard.

In contrast, in Secretary of Labor v. Black Construction Corp., the employer had not provided trench shields to protect employees from loose rock or soil that could pose a hazard by falling or rolling from an excavation face. The Commission vacated this citation item, finding that the Secretary had not met her burden to show that shoring or sloping of the trench walls was necessary to avoid exposing employees in the trench to a substantial likelihood of serious injury or death. This was so “notwithstanding the fact that automobile and truck traffic traveled in close proximity to the trench wall.”

Black Construction Corp. is hard to reconcile with Secretary of Labor v. A. P. O’Horo Co., Inc. That case involved a fatal cave-in in a 10-foot deep trench dug parallel to a highway trafficked by vehicles “ranging from automobiles to tractor trailers.” 29 C.F.R. ¬ß 1926.652 requires “additional precautions by way of shoring and bracing” where “excavations are subjected to vibrations from railroad or highway traffic” or other sources. The trench in Black Construction Corp. was centered about 9 feet from the edge of the roadway. Following an older case, the Commission concluded that the proximity of the roadway established that the trench was subjected to vibrations, and there was no requirement to show “that the vibrations created an additional danger of collapse, for the standard already makes the judgment that vibrations have that effect.”

In Black Construction Corp., the Commission explained that:

Most [OSHA] standards include requirements or prohibitions which, by their terms, must be observed whenever specified conditions, practices or procedures are encountered. These standards are predicated on the existence of a hazard when their terms are not met. Therefore, the Secretary is not required to prove that noncompliance with these standards creates a hazard in order to establish a violation. Certain standards, however, contain requirements or prohibitions which, by their terms, need only be observed when employees are exposed to a hazard described generally in the standard.

The upshot of the apparent inconsistency between Black Construction Corp. and Complete General Construction Co. is that language such as “. . . that could pose a hazard” is not a reliable indicator that the Board will categorize a particular OSHA standard as one requiring proof of an actual hazard, as opposed to one in which danger will be presumed from a technical breach. The cases must be researched, to see whether the Commission has consigned the standard in question to one category or the other.

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 risks to life and safety posed by unsafe excavation and trenching work at construction sites are under-appreciated. Foresight in this area is critical: when cave-ins occur, even in shallow trenches, workers can be trapped in an instant, and suffocated by the tremendous force of a load of dislodged earth.

Studies show that excavation safety compliance is often lax on small jobs, performed by smaller companies. Many injuries and deaths occur when workers go down into insufficiently-shored trenches or excavations, intending to work there for only a brief period. Plumbers and others are often afflicted with over-confidence, as they do so much below-ground work, usually without incident. Their bravado, however, should be discouraged, as cave-ins can happen swiftly. The weight of collapsed earth and, often, tight access to the site of a cave-in, make successful rescues the exception rather than the rule. Indeed, workers attempting to rescue colleagues in cave-ins are themselves often injured, and occasionally killed. A cubic yard of earth can weigh a ton and a half or more, and every time a trapped worker exhales, the weight of the load makes it harder to inhale the next breath.

OSHA initiated a special emphasis program for trenches and excavations in 1985, and revised its trench and excavation standards in 1989. A study published in the Journal of Occupational and Environmental Medicine showed that OSHA’s revised standard, and a targeted inspection program that began in 1990, sharply reduced fatality rates from cave-ins. Indeed, looking just at construction industry fatalities, deaths from other causes dropped about 28% in the 10-year period that ended in 1995, but deaths in cave-ins fell approximately 50%.

While the same study was hesitant to draw conclusions concerning the relationship between deaths in construction site cave-ins, and company size and union versus non-union status, it’s clear that OSHA inspections are more frequent at large companies and jobsites, and that non-union death rates from cave-ins are roughly double those for union workers. What this indicates is that OSHA regulations are highly effective in reducing risks associated with trenches and excavations, but only if workers are sufficiently trained, and employers enforce the standards. Workers and employers both are far too often casual about safety in trenches and excavations. Following three cave-in deaths in an eight-month period in the Pittsburgh area last year, one safety official (representing management) estimated that only 20% of the people working in trenches are properly protected. If they could meet and talk with a former plumber or other worker living with severe, lifelong and disabling injuries, sustained in the blink of an eye when soil collapsed on him exerting pressure of up to 100 pounds per square inch, perhaps they would be more careful.

In this month’s installment, Welby “the Engineer” will run through some of OSHA’s basic precepts concerning excavations, trenches and associated safety issues. In next month’s follow-up piece, Welby “the Construction Lawyer” will discuss some court decisions, in which trenching cave-ins and related hazards have been dealt with.

Although falls, electrocution, falling objects (or a backhoe) and bad air (which can poison workers, or result in fires) pose additional risks in trenches, the primary danger is from cave-ins. These occur when the soil forming the side of the excavation can no longer resist the forces being applied to it. This results from a reduction in the frictional and cohesive capacities of the soil to resist forces. Freezing and thawing, or the addition or removal of water from the pores of the soil, are frequent causes in reducing the soil’s ability to resist forces. Dynamic loads from vibrations caused by pile driving or other construction operations, or even nearby railroad or vehicular traffic, can have the same effect.

An “excavation” under OSHA means “any man-made cut, cavity, trench or depression in an earth surface, formed by earth removal.” A “trench” is a sub-species of excavation, generally, a narrow excavation below the surface of the ground, not more than 15′ wide at the bottom.

The most widely-used protective systems include support systems, sloping and benching systems, and shield systems, a/k/a trench boxes.

Before opening an excavation, the approximate locations of utility installations (sewer, telephone, fuel, electrical, water lines or other underground installations) are required to be determined. While beyond the scope of this article, these determinations present significant technical challenges and are often unreliable, generally as most detection technologies can’t locate lines that are neither metallic, nor installed with ferrous or other magnetic markers attached, to enable them to be found. Major utilities, of course, can usually provide reliable information, but surprise encounters with PVC or other difficult-to-detect underground installations are not uncommon.

Excavations must be inspected daily prior to the start of work, and as needed throughout the shift. Inspections must also be made after every rainstorm or other “hazard-increasing occurrence” if employee exposure can be reasonably anticipated. A “competent person,” defined generally as one capable of identifying existing and predictable hazards and unsanitary, hazardous and dangerous conditions, and having authority to take measures to eliminate them, is to perform such inspections.

OSHA requires employers to train workers about excavation hazards, and how to protect themselves. Video and other safety instruction materials, of varying quality, are available from a number of sources, but while the following is not a complete or sufficient “course of instruction,” a few of the most basic rules need to be repeated, and repeated often. “Before you work in a trench,” workers should be told, “get a ‚Äòcompetent person’ to approve it.” Equipment (such as ventilators and water pumps) should be checked. The trench should have all electricity, gas and water pipes shutoff, and booms should never be used near overhead power lines (unless the “competent person” has first ascertained that the power has been cut off, and the lines have been grounded).

If “bad air” is expected, a “competent person” must test the air to ensure that the air has between 19.5% to 23.5% oxygen. Gasoline, methane, or other substances that can burn or explode should be at less than 20% of the lower explosive or flammability limit. The air should also be checked for toxins like chlorine, carbon monoxide, sewer gases, and hydrogen sulfide. These toxins can kill, and it is the “competent person’s” job to ascertain if blowers can keep the air safe, if any such substances are present. If “bad air” is anticipated, there must be a rescue plan, and rescue equipment present on-site. Rescue teams must have special training.

OSHA classifies soils as stable rock, or type A, type B, or type C soil. Stable rock, and type A soils are the safest. Most soils are type B. Sand, and trenches with water, are type C soils. Water in a trench is a “red flag” of possible danger. Clay soils can be of type A, B, or C, depending on how much water is in the clay. Testing is imperative, because cave-ins occur with alarming frequency in clay soils, because they look safe.

Protective systems — usually, sloping, benching, shoring, or a trench box — must be in place whenever workers are down in a trench. If a trench is 4 feet deep or more, there must be ladders within 25 feet of all persons who will be working in the trench. The spoil pile must be kept a minimum of 2 feet from the edge of the trench. Rocks, soil or other materials must be prevented from falling into the trench. Barriers should be used, if needed.

If a trench caves in, “911” or other emergency services should be summoned at once. If co-workers can be assisted from outside the trench, fine, but no one should go down into a trench that is caving in, or that has bad air, even to rescue a fellow worker. Such rescue attempts usually fail, and the would-be rescuers can be injured or killed.

Every construction contractor, of course, is conscious of the costs of OSHA compliance, and aware that faster work increases profit margins. However, few things that occur on construction sites are more terrible than a workforce watching helplessly, as a colleague trapped by a trench cave-in suffocates and expires under tons of soil. In addition to the destruction of life and morale, the financial costs of trenching accidents can be huge. They include work stoppage to rescue the victim, time and labor to re-excavate the collapsed trench, workers’ compensation costs, increased insurance premiums, and paperwork and management time lost in connection with the investigation of the accident. OSHA fines for willful and serious violations of excavation standards , and the employer may be exposed to liability for wrongful death, personal injury, and conscious pain and suffering as well.

The combination of potential fines, loss of human life, lawsuits, increases in already high insurance costs, and poor public relations can put a thriving construction company, especially those smaller ones that are subject to increased pressures to cut corners with regard to safety, out of business.

In short, it’s a great idea to bite your lip and write that check for the trench-box rental. It’s well worth the investment. Most of what goes into OSHA compliance, generally, is in the nature of sound planning and organization, not large cash outlays. Properly organized, worker safety instruction and enforcement should not cost employers greatly in lost time and profit — and the downside in shortchanging these efforts can be damaging, even fatal, to your business.

Next month, we’ll discuss some of the cases in which cave-ins and excavation hazards have been addressed.

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.

We follow up last month’s “Scaffold Law Update” with a look at some OSHA cases involving fall-protection standards, as these are the leading cause, of construction industry citations.

Companies that have not reviewed their safety programs since OSHA overhauled its fall-protection standards in the late 1990s would do well to download OSHA Document 3146 (1998 revision), “Fall Protection in Construction,” which contains both a useful summary, and references for further study. In a nutshell, compatible fall protection measures must be provided wherever employees are exposed to a possible fall from a height of six feet or more. Principal methods include guardrail systems, safety net systems, personal fall arrest systems, positioning device systems (a body belt or body harness system), “controlled access zones,” and warning line systems.

The case law illustrates earnest efforts to enforce fall-protection standards, while avoiding interpretations of OSHA standards that fail to tell employers what compliance with the standards entails.

In Frank Lill & Son, Inc. v. Secretary of Labor, employees were seen working as high as 100 feet aloft without fall protection, or with only a horizontal wire rope, about 18 inches high, at the edge of the platform. Workers volunteered that there was no convenient place to tie off, and that even foremen and project managers frequently worked at great heights without doing so. OSHA cited Lill for a “willful” violation of 29 C.F.R. ¬ß 1925.501(b)(1), and proposed a $49,500 penalty for the “willful” violation.

The Administrative Law Judge downgraded Lill’s violation from “willful” to “serious,” based on proof that Lill had daily safety inspections and safety meetings, provided sufficient personal fall arrest systems for its employees, and disciplined employees who neglected to tie off while working at or close to the edge of platforms.

The Lill case came before the Court of Appeals when a Petition for Discretionary Review (“PDR”) to the OSH Review Commission (“Commission”) was not granted, making the ALJ’s order the final order of the Commission. Lill highlights a procedural pitfall, as the Court of Appeals refused to consider grounds challenging the finding of a violation. By statute, 29 U.S.C. ¬ß 660(a), absent “extraordinary circumstances” any grounds to challenge the ALJ’s findings that are not in the PDR cannot be considered by the courts of appeals. Thus, employers and their counsel should be sure to include all meritorious arguments before finalizing a PDR.

Lill’s defenses to the violation were also dismissed by the Court. Notably, the Court rejected Lill’s argument that the wire perimeter rope qualified as a “guardrail system.” This argument was found wanting, as the inspector testified that he had found the wire cable to be inadequate “because an adequate guardrail system has a toprail at 42 inches and a midrail at 21 inches.”

Lill’s failed also in its defense of “unpreventable employee misconduct.” To make out this defense, an employer must show that (1) it had a work rule to prevent the reckless behavior and/or unsafe condition; (2) it adequately communicated the rule to employees; (3) the employer took steps to discover incidents of noncompliance; and (4) the employer effectively enforced the rule.

In Lill, “there was abundant evidence that employees, including the site manager, did not tie-off while on the catwalks,” signs posted that directed employees to wear safety harnesses failed to indicate when the employees were required to tie off and, while some disciplinary efforts were shown, the employer “presented no proof that it endeavored to enforce its tie-off rule to employees who were not right at the edge.” These factors, plus statements by four employees that the tie-off rule was frequently violated, negated the defense.

In an earlier article, we discussed S. A. Storer and Sons Co. v. Secretary of Labor, which illustrated a noteworthy exception to the rule that elevated areas must be equipped with fall protection devices, and a critical legal principle — namely, that the “substantial deference” accorded the Secretary will not sustain an interpretation of a regulation that is clearly erroneous.

A principal issue in S.A. Storer was whether, where an employee is engaged in overhand bricklaying on a supported scaffold, fall protection must be provided on the side next to the wall being laid. “Overhand” bricklaying, of course, requires the mason to lean over the wall to work mortar into the interstices between the blocks, and “includes mason tending and electrical installation incorporated into the brick wall . . .”

Under 25 C.F.R. § 1926.451(g)(1)(vi), an employee performing overhand bricklaying from a scaffold must be protected from falling from all open sides and ends of the scaffold except at the side next to the wall being laid. This exception, Storer claimed, excused the lack of fall protection at a window opening (which was the basis of the citation).

The Secretary contended that the “overhand bricklaying” exception could not be applied, because Storer’s employees were not actually doing such work at the location of the window opening. Elaborating her position, the Secretary depicted the exception as a “limited,” “practical” accommodation. The exception should be recognized, the Secretary said, where “the presence of a guardrail between the mason and the wall being laid would interfere with or prevent the process of setting and mortaring the masonry.” However, the Secretary maintained, “if there is an opening . . . where wall is not being laid, then no deviation” can be justified from the “mandate” requiring fall protection. Storer, the Secretary asserted, was arguing for an “unlimited exemption,” that would “swallow” the fall-protection requirement “without practical or policy justification.”

Ruling for Storer on this issue, the Court of Appeals upbraided the Secretary for distorting Storer’s position — Storer was seeking “to do only what the words of the exception allow it to do” — and remarked that “a regulation cannot be construed to mean what an agency intended but did not adequately express.” If the Secretary is dissatisfied with the regulation, she should look to amend it, but not “by ascribing a meaning to words they simply do not have.”

The Court of Appeals found that the Secretary’s interpretation failed to reflect “clear, rational decision-making that gives regulated members of the public adequate notice of their obligations,” and vacated so much of the Commission’s order that regarded the window opening area of the wall being laid.

In Secretary of Labor v. Commercial Painting, Inc., the employer was cited for using a rough terrain forklift to support a work platform 21 feet above the ground. “Front-end loaders and similar pieces of equipment” are prohibited by the OSHA standard from being used to support scaffold platforms, unless they have been specifically designed for such use.

The forklift was found to be a “similar piece of equipment” within the standard, and the Commission affirmed a “serious” violation with a $1,250.00 penalty.

Citing ¬ß 17(j) of the Act, 19 U.S.C. ¬ß 666(j), the Commission in Commercial Painting noted that when assessing penalties, the Commission must give due consideration to (1) the size of the employer’s business, (2) the gravity of the violation, (3) the good faith of the employer, and (4) the history of previous violations.

“Generally,” the Commission observed, “the gravity of the violation is the primary consideration in assessing penalties.” “Gravity” is measured by “the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.”

The Commission in Commercial Painting found that the two-employee crew was exposed to a 21-foot fall while the platform was elevated. If the platform and forklift tipped, the Commission found, “the likely result would be death or serious physical injury.”

Despite the modest sanction imposed, Commercial Painting still deserves to be read as an admonition that the violation of fall protection standards will not be taken lightly, and may subject the employer to findings of “serious” violations, and greater penalties for “serious” and “willful” violations.

The frequency, and in many cases the severity, of injuries from construction site falls should make fall protection a primary element of a cost-effective strategy for OSHA compliance, and jobsite risk management.

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.

Pobably no single safety issue is more critical on the New York construction jobsites than that of fall protection.

Outdoor work, and construction work in particular, is dangerous. In 1995, the Bureau of Labor Statistics reported 1,048 construction fatalities, more than any other industry. Its index of relative risk for fatal occupational injuries, using “1” as the overall risk for all occupations, assigned a risk of 8.1 for construction labor overall, and 13.1 to structural sheet metal work. In 2001, construction accidents accounted for 20.8% of U.S. occupational fatalities. Working on a girder, roof or scaffold multiplies the risk factor, and a momentary lapse in judgment can be fatal.

Falls are a primary cause of workplace injuries and fatalities. OSHA estimates that falls cause more than 100,000 injuries and 150 to 200 fatalities at construction sites annually. In 2000, according to the Bureau of Labor Statistics, 32.4% of construction-industry deaths were fall-related. The New York City Department of Buildings reported that, in 2002, falls were the number one cause of construction-related injuries, accounting for 56% of recorded accidents. OSHA’s fall-protection standards, which take up 30 pages in the Code of Federal Regulations, are theones most commonly cited against construction industry employers.

Everyone reading this article is aware of the perennial controversy over efforts to reform (or undermine) New York’s unique “Scaffold Law,” Labor Law ¬ß 240(1).

Dating back to 1885, the Scaffold Law is widely thought to be a “strict liability” statute, imposing on owners and general contractors an absolute liability, without any requirement of proving their negligence, for any and all gravity-related construction jobsite injuries.

An argument often made in favor of reforming the Scaffold Law that it is unfair to hold liable an owner or general contractor, who has not been negligent, for the injuries of a worker who may have climbed onto a scaffold while under the influence of alcohol or drugs, who may have shunned the use of safety devices, or was otherwise negligent himself.

It is widely believed, also, that the Scaffold Law is greatly to blame for the limited availability and high cost of liability insurance for New York owners and general contractors.

The insurance industry’s critics allege that insurers have raised premiums chiefly to make up for their diminished returns in the securities markets. They suggest that the insurers have cynically boosted premiums, and (in many cases) have curtailed their business in New York, to pressure construction companies into joining in their tooth-and-nail legislative fight to abolish or weaken the Scaffold Law. Even conceding that high medical costs in New York can only increase damage awards, the refusal by some insurers to cover construction projects in the State is difficult to explain, given New York’s low construction injury rates, which (according to U.S. Department of Labor statistics) were the second lowest in the nation in 1999-2001. It seems likely, also, that New York’s favorable experience is also partly creditable to the Scaffold Law.

A further argument by opponents of changing the Scaffold Law is a widespread, “under-the-radar” sector of small construction outfits, which often lack safety programs, worker training, and even liability or Worker’s Compensation insurance. Apart the fact that OSHA enforcement is aimed mostly at larger companies and projects, some of these “underground” outfits limit their operations to nights and weekends, to avoid safety inspections.

Advocates for both legal and undocumented aliens point out the prevalence in the “underground” construction sector of Latino (and Asian) day laborers, who suffer injury and disability in numbers disproportionate to their participation in the workforce, and who may suffer extraordinary consequences (due to their lack of medical coverage, or undocumented status) if injured or disabled. Several notorious fatal accidents in recent years involved scaffolding collapses and immigrant day laborers.

If the reformers’ argument based on drug-addled and negligent construction workers was not always a straw man, recent caselaw decisions have made it one. In the mid-1980s, it is true, in cases such as Zimmer v. Chemung County Performing Arts Inc. and Bland v. Manocherian the Court of Appeals did define the owners’ and general contractors’ duty as essentially an insurer’s liability. As late as 1993, in Ross v. Curtis-Palmer Hydro-Electric Co., the Court of Appeals was unequivocal that the “negligence, if any, of the injured worker is of no consequence.”

Through the 1990s, however, the pendulum swung considerably rightward, with increasing numbers of cases going to the jury on “proximate cause” grounds (arguably, a back-door reintroduction of comparative negligence) and some courts recognizing an exception to strict liability in the case of the “recalcitrant worker,” one who disregards instructions to use adequate safety devices.

To give just one example of the shift, in Bernal v. City of New York (1995) the plaintiff was being lowered from a scaffold on a “Hi-Lo,” a device not previously used for that purpose. The “Hi-Lo” struck the scaffold, which collapsed, causing injury to the plaintiff. Both the trial court and the Appellate Division held that the plaintiff was not entitled to summary judgment, as a reasonable finder of fact could conclude that the plaintiff’s co-worker’s conduct had been the sole proximate cause of the plaintiff’s injuries. Under the logic of Bernal, a co-worker’s negligence might provide a defense under Labor Law ¬ß 240(1), even though the plaintiff’s own negligence is supposed to be irrelevant.

Some stability may emerge following the Court of Appeals’ decision last year in Blake v. Neighborhood Housing Services of New York City, Inc. In that case, the Court of Appeals discussed the history of the statute, and cases employing the terms, “strict” or “absolute” liability. The Scaffold Law is, the Court said, an exception to CPLR 1411, which makes the plaintiff’s contributory negligence a defense. And liability under the Scaffold Law, the Court said in Blake, is “absolute,” in the limited sense that the statute imposes a nondelegable duty on owners and general contractors to provide safe scaffolding. However, the Court emphasized that liability was never intended to be “absolute,” as that term is used in other contexts (e.g., blasting activities and the keeping of wild animals) in which liability is imposed for injury even without fault — where the defendant’s activity violates no law, and is carried out with the utmost care.

Thus, while denying that it was changing the law or constricting the traditionally liberal construction of the Scaffold Law, the Court in Blake stated that the legislative purpose could not be advanced by imposing liability for every fall at a construction site. To impose liability under ¬ß 240(1), therefore, there must be proved both a statutory violation of the duty to provide safe scaffolding, and that the violation was a contributing (not necessarily the sole) cause of the plaintiff’s injury.

At least since the Court of Appeals’ clarification of the Scaffold Law in Blake, the worker receiving a windfall from a jury, following his drunken tumble off of a scaffold, is probably a red herring in terms of the reform controversy. Certainly, he would still have to show some defect in the scaffolding — and, were a jury to find that his intoxication was the sole proximate cause of his injury, under Blake’s authoritative (if circular) reasoning, that would necessarily imply that there was no statutory violation.

In Cahill v. Triborough Bridge and Tunnel Authority, also decided in 2004, the Court of Appeals gave its express, if qualified blessing to the “recalcitrant worker” defense, holding that where an employer has made adequate safety devices available and instructed employees in their use, an employee may not recover under the Scaffold Law for injuries caused solely by his violation of those instructions.

Three additional Scaffold Law cases merit passing mention. In LoCicero v. Princeton Restoration, Inc., the Supreme Court, Suffolk County, rejected a defense that a driver delivering rebar mats, injured as a bundle of rebar fell on him as he used a boom crane on his flatbed truck to hoist the bundle to the second floor, was not employed to work on the library addition, and therefore was not a member of the class protected by ¬ß 240(1). The decision makes clear that hazards of building materials falling from a hoist, as they are being conveyed to a higher level, are covered by the statute, and an injured plaintiff delivering material to the site may be protected where his work is “necessary and incidental” to the construction project.

Conversely, in Markgraf v. Suffolk County Water Authority, an engineer employed at another location by the lessee of part of the premises under construction fell and was injured as he crossed a plank resting on wood joists. In a reminder that the Scaffold Law does not cover all gravity-related construction-site injuries, in Markgraf the plaintiff could not recover under ¬ß 240(1). Where an inspector is a member of a team that undertook an enumerated activity under the construction contract, he is protected even while performing ancillary duties. But where his inspection is “merely investigatory,” and where he is not working for the contractor that is performing or will perform the project, he is not a member of the protected class, and ¬ß 240(1) does not apply.

And, while in Hudgins v. City of New York the court on post-trial motions put a somewhat startling jury verdict aright, in that case the plaintiff sustained injuries when planking he was standing on, which had been placed atop a 25-foot high sidewalk bridge, was struck by a passing vehicle, causing the planking (and a section of the bridge) to collapse. At trial, the plaintiff won a verdict as to the liability of co-defendant City of New York (whose driver operated the truck that struck the planking) and a substantial damage award.

What is startling about Hudgins is that the jury apportioned liability 90% against the City, and 10% against the plaintiff (and presumably was instructed by the trial judge on comparative negligence). On a post-trial motion, the court hastened to correct this error, holding that the plaintiff’s comparative fault was irrelevant, and would not defeat his right to full compensation. As contributory negligence in Scaffold Law cases was abolished by the Court of Appeals in Koenig v. Patrick Construction Corp. in 1948, the error at trial was an egregious one.

What are the implications for New York construction companies of recent developments, and in particular Blake? While the ingredients that go into policy, like those of sausages, cannot be reliably foreseen, possibly gasbags on both sides of the dispute will see their arguments deflated. While Blake dealt plaintiffs’ trial lawyers a clear defeat, the insurers lost one of their principal arguments. It should be hard for them to argue in the future that it is “impossible” for insurers to defend against “absolute” (insurer’s) liability under the Scaffold Law, now that the Court of Appeals has said in Blake that “at no time did the Court or the Legislature ever suggest that a defendant should be treated as an insurer after having furnished a safe workplace.”

Even its detractors have not attacked the Scaffold Law’s vicarious liability provisions, as they are generally agreed to be a salutary disincentive to hire uninsured or slipshod contractors. Possibly, the controversy over the Scaffold Law will soon be narrowed to whether construction workers falling off scaffolds should be subject to comparative negligence standards like everybody else.

New York’s position as a leader in construction industry safety (and, yes, Democratic control in the Assembly) suggests that our system is not “broke” sufficiently to impel the Legislature to make OSHA compliance a prima facie defense under the Labor Law. In combination with the dawning recognition that drastic reform is not in the cards for the short term, New York’s admirable safety experience may soon get the insurers off the sidelines, with the result (we hope) that insurance will become more widely available, and at more favorable rates.

Continuing on this theme in next month’s article, we will discuss fall protection from an OSHA compliance standpoint, and look at how cases before the OSH Review Commission and U.S. Courts of Appeals have dealt with violations.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

In last month’s article, we discussed how it may be a defense to an OSHA violation that the party cited was not the employer of affected workers at the jobsite. This month, we will look at OSHA’S “multi-employer doctrine,” and how a general contractor or a subcontractor can be cited even for conditions it did not create, and which affect only other contractors’ employees.

Universal Construction Co., Inc. v. OSHRC was an appeal to the U.S. Court of Appeals for the Tenth Circuit from a decision of the Commission imposing penalties for “serious” OSHA violations. In that case, Universal Construction Company (Universal), as general contractor, contracted with UMB Bank to construct a branch bank office in Missouri. Universal then subcontracted parts of the work to A. Zahner Sheetmetal Company (Zahner). An OSHA compliance officer observed a Zahner employee violate two OSHA standards. Universal’s field manager and personnel were at the site, and in a position to observe the violations. They had authority to correct the hazards, or to direct Zahner’s foreman to do so, but failed to use that authority. It was not disputed that Zahner created the hazards, and that only Zahner employees were exposed to any danger.

OSHA cited Universal for a “serious” violation, based on Universal’s ability to correct the hazardous conditions. An administrative law judge, relying upon the multi-employer doctrine, upheld the citation.

The Court of Appeals’ decision upholding the violations explains the origins of the multi-employer doctrine. Not surprisingly, it arose from construction industry cases, in which hazards created by one employer often pose dangers to employees of other entities. The OSHA statute does not expressly create liability outside the employer-employee relationship. Rather, the multi-employer doctrine is an interpretation of 29 U.S.C. ¬ß 654(a)(2) (which requires each employer to “comply with occupational safety and health standards promulgated under this chapter”). The Secretary of Labor has asserted the doctrine since the 1970s, and all but one of the federal Courts of Appeals that have considered it (including the Second Circuit, which embraces New York) have approved it.

Under the multi-employer doctrine, a general contractor or subcontractor may be cited for a hazard it created, even if none of its own employees are endangered. While rules of craft jurisdiction or other factors may limit an employer’s authority to abate hazards created by other contractors, a contractor of any tier is not excused from taking reasonable steps to protect its own employees (for example, by alerting the contractor causing the danger and asking him to abate it, or by directing one’s own forces to avoid an unsafe condition). Normally, it is the general contractor who has overall control of the site, and the ability to assure that other contractors fulfill their OSHA obligations.

The Universal court, endorsing the majority view, held that it is reasonable, and consistent with the purposes of the Act, to hold a general contractor liable for violations which it could reasonably have been expected to prevent or abate, by reason of its supervisory capacity. The general contractor’s duty runs not only to its own employees, “but extends to protection of all worksite employees.”

While the “multi-employer doctrine” may sustain an OSHA claim against a contractor exercising control over the worksite, generally the duty imposed will not run against the owner. In Jordan v. NUCOR Corporation, the injured employee worked for one of several contractors constructing an addition to a NUCOR steel plant. The contract between NUCOR and Jordan’s employer denied that NUCOR was acting as a general contractor, and assigned to the contractor the duty to ensure the safety of its work force. The rights reserved to NUCOR — essentially, the boilerplate rights to terminate a contractor in default, take possession of the site and complete the project — were held to be insufficient to impute to NUCOR general supervisory control over the jobsite, or control over the crane operator whose negligence resulted in Jordan’s injuries.

In Jordan, the U.S. Court of Appeals affirmed the lower court’s grant of summary judgment dismissing Jordan’s action against NUCOR. The decision overstates matters, perhaps, in saying that “[t]he multi-employer doctrine applies only to general contractors, not the owner of the property.” Cases have applied the doctrine to subcontractors, and it does not appear settled that an owner exercising actual control at the jobsite could not be held responsible — even if, formally, it was not acting as general contractor.

However, no such scenario was presented in Jordan. The court determined, and noted also the finding of OSHA inspectors, that the owner had not acted as a general contractor. Accordingly, and as NUCOR did not exercise actual or contractual control over the project, or supervise the use of the crane involved in the accident, it could not have been expected to prevent the safety violations, and the multi-employer doctrine was held not to apply.

It should also be noted that the multi-employer doctrine does not independently establish tort duties between a contractor and employees of other contractors or subcontractors. In Jones v. Parsons Transportation Group, Inc., the plaintiff was the widow of a laborer electrocuted while operating a chipping hammer on an airport expansion project in Maryland. The decedent, Jones, an employee of Whiting-Turner, the general contractor, had been working in an excavation pit. An employee of one of Whiting-Turner’s subcontractors, Belfast Valley Contractors, asked him to chip a piece of concrete obstructing the area where Belfast planned to install the grade beam. While operating the chipping hammer in the area indicated by Belfast’s employee, Jones was electrocuted when the hammer penetrated a concrete utility duct bank, and struck a high-voltage electrical line.

Jones’ widow commenced a negligence action against the Parsons Transportation Group (Parsons) which, as construction manager pursuant to a contract with the owner, was responsible to monitor the general contractor’s work, and to assure compliance with safety standards. The widow relied in part on principles found in Section 324A of the Restatement (Second) of Torts, which states that a person who undertakes to render services to another that he should recognize as necessary to protect a third party can be subject to liability, should he fail to exercise reasonable care and (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owned by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Because of Maryland case law precedents that are not directly germane to our discussion, the plaintiff in Jones could not maintain her negligence cause of action against the construction manager. She argued, based on OSHA’s multi-employer doctrine, that Parsons was responsible for her husband’s injuries caused by Parsons’ failure to comply with OSHA regulations governing work in proximity to an energized electric circuit.

The Jones court acknowledged that, since a construction contractor must comply with OSHA to protect its own workers, it is “sensible to think of him as assuming the same duty to the other workers at the site who might be injured or killed if he violated the regulations.” However, the court said, OSHA does not independently establish tort duties between a contractor and employees of other contractors or subcontractors. The Act is express that it is not to be construed to affect worker’s compensation laws, or to alter common-law or statutory duties or liabilities of employers as to injuries to their employees. A breach of an OSHA violation is evidence of the standard of care exacted of employers, the court said, but OSHA creates no private right of action, and one will not be implied.

Because Mrs. Jones could not establish a duty owned by Parsons to her husband under a theory of liability independent of OSHA, her action against the construction manager was dismissed.

The fundamental lesson from the above is that general contractors, particularly, should be conscientious in policing potential OSHA violations not only by its own forces, but by all lower-tier contractors subject to its control. Both construction contracts and jobsite practices should be tailored to ensure that general contractors and others who may be liable for OSHA violations, by reason of their supervisory authority, will be aware of their duties, and have the means to carry them out.

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.

Most employers are aware that the Occupational Health and Safety Administration establishes specific (and often detailed) health and safety regulations. Employers know that they must become familiar with specific OSHA regulations that apply to conditions, operations and processes relevant to their particular workplace and trade. (e.g. – excavation, masonry, steel erection, etc.) Employers, no doubt, would like to think that their trouble and expense in complying scrupulously with the myriad details of these industry-specific regulations will avoid citations for OSHA violations.

However, as the below cases illustrate, OSHA compliance requires two things of the employer. One of them is to comply with OSHA’s specific standards that apply to conditions, operations, and processes, etc. as found within the employer’s business. Such compliance, although necessary, is not of itself sufficient. OSHA’s “General Duty Clause” codifies a further duty imposed on employers: to use their common sense to furnish employees with a workplace free from recognized hazards that are likely to cause death or serious physical harm.

The case of Secretary of Labor v. R. G. Bigelow Electrical Co., Inc. is illustrative. Ruggles, an electrician, was assigned to tighten a neutral connection while using an aerial lift 20-25 feet above the ground. Ruggles had not been trained on the lift, and he was not provided with personal protective equipment. It was not practicable to de-energize the circuit, and Ruggles went aloft wearing jeans and a polyester t-shirt. He suffered severe burns as he performed work on the circuit, using a conductive allen wrench. Ruggles’ t-shirt melted onto his body, and he had to lower himself down in the lift, because the key to the lift’s ground-level controls was missing. The employer’s defense to the citation for a violation of the General Duty Clause was that protective equipment was available in the employer’s office, but no one had asked that it be delivered to the work site.

The General Duty Clause provides as follows:

Each employer — (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees[.]

To establish a violation of the General Duty Clause, the Secretary of Labor must prove that: (1) the employer failed to render its workplace free of an obvious and recognized hazard; (2) the hazard was causing or likely to cause death or serious physical harm, and (3) there was a feasible method by which the employer could have abated the hazard.

At the hearing, the administrative law judge agreed with the employer that Ruggles could not have completed his assigned task with the circuit box in the off position. He also found, however, that working with a circuit box of 480 volts requires insulated gloves, safety glasses and a face shield, fire retardant clothing, insulated tools, and an insulated blanket. The administrative law judge found that using a conductive tool in close proximity to a live electrical circuit in excess of 50 volts posed a hazard of burns or electrocution. The Secretary’s expert witness testified, without rebuttal, that this was a recognized hazard in the industry. It was clear that the hazards are likely to result in death or serious physical harm, and that feasible means — such as the use of proper clothing and insulated tools — exist to eliminate or materially reduce the hazard. The General Duty Clause citation was affirmed as a “serious” violation.

Construction industry employers should be aware of the interplay between OSHA’s specific standards, and the General Duty Clause. First, the applicability of a specific standard pre-empts the application of the General Duty Clause. 29 C.F.R. ¬ß 1910.5(f) provides:

An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirements of [the General Duty Clause], but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.

Thus, if an accident has resulted from a condition, operation, process etc. permissible under a specific OSHA standard, OSHA investigators ordinarily cannot seize upon the General Duty Clause, to make the permitted condition an OSHA violation anyway. The exception to this, however — and it is an important one — is that for the employer to be protected, the condition associated with the injury must (1) have been authorized under the specific standard; and (2) must not have presented an obvious or recognized hazard. The employer has the burden to identify and to establish the applicability of the specific standard, and that the exception just described does not apply.

Employers should be aware, also, of some of the primary defenses to OSHA citations for violations of the General Duty Clause. Not surprisingly, work rules that are adequately communicated to employees, monitored for compliance and effectively enforced, can save the day. In Secretary of Labor v. Performance Site Management, a utility crew was excavating and installing sewer pipes at a job site. Two workers, Roberts and Lintz, were inside trench boxes, installing pipe, while a third worker operated a track hoe with an excavator bucket attached to one of its arms. A fourth worker acted as a “spotter” for the track hoe, and a fifth operated a front-end loader, used to backfill each area of the trench after pipe had been installed. As the track hoe operator was swinging the track hoe around, the bucket disengaged from the track hoe, and fell into the trench. The bucket landed on Roberts, causing his death, and injured Lintz, as the impact threw him from the trench box. Among the OSHA citations that were issued was an alleged violation of the General Duty Clause.

At the hearing, the Secretary of Labor argued that the protocol and safe operating procedures of the Construction Industry Manufacturers Association (“CIMA”) constituted a feasible means of abating the hazard and that, by not adopting it, the employer had failed to take a necessary measure to eliminate or reduce the recognized hazard. However, the administrative law judge, found that the employer’s rules, which forbade working under the track hoe at any time, were the equivalent of the CIMA protocol.

The administrative law judge also found that prior incidents were energetically investigated and measures taken to avoid a recurrence, the employer had a comprehensive maintenance program for its equipment, and an injury rate better than the industry in general. The employer convened meetings, contacted manufacturers and dealers of its equipment to address concerns, and even worked with competitors on safety issues. Importantly, the administrative law judge found that rules were adequately communicated to employees. New hires were given a written safety manual, safety matters were addressed during a five-hour orientation, and workers received specialized classes and weekly “toolbox talks,” in which the rule against working under loads, including the track hoe, were reiterated. Every morning before starting work, a “10/10” meeting was held, at which safety issues were discussed. Energetic programs to monitor compliance with company safety rules, and to discipline offenders, were also in place.

The administrative law judge concluded that the employer had an effective, comprehensive safety program, designed to render its workplace free of recognized hazards including working under loads, which negated the General Duty Clause violation. The citation was dismissed.

In a prior article, we discussed Secretary of Labor v. Thomann Asphalt Paving Corp., which involved a fatal rollover accident involving a Bomag roller. In that case, the fatality occurred as a roller, being operated partially on a paved roadway and partially on the grassy area next to the road, slid off the side of an embankment, pinning the operator underneath.

The critical issue in Thomann Asphalt Paving Corp. became whether the operator’s use of a roller not equipped with a rollover protective system (“ROPS”) violated the General Duty Clause. Testimony at the hearing showed that the industry disfavors requiring ROPS on rollers as a matter of course because, under most conditions, ROPS (which requires that the operator wear a seatbelt) inhibits the operator who needs to be able to stand up in his seat, and obstructs the operator’s vision.

Although the administrative law judge found an “obvious and recognized hazard” and risk of death or serious physical harm, it recast slightly the third inquiry — whether or not there was a feasible means to abate the hazard — to describe that inquiry as whether knowledgeable persons, familiar with the industry, would consider ROPS to be a necessary and valuable element of a sound safety program in the specific circumstances existing at the work site. In answering that question in the negative, the administrative law judge found persuasive one of the complainant’s own expert’s view that, at a jobsite at which the job to be performed did not call for the compaction of sloped areas, the rollover hazard was best addressed with the use of well-trained, knowledgeable operators.

OSHA’s General Duty Clause should not be misread as mere boilerplate, nor as a meaningless preface to clause (2) of 29 U.S.C. ¬ß 653(a) (i.e., the duty co comply with the specific standards promulgated by the Secretary of Labor). Rather, the General Duty Clause takes every employer’s responsibility beyond compliance with specific standards, and demands that the workplace be free of obvious and recognized hazards that can feasibly be abated. It is important for employers, therefore, to be attentive to this responsibility, as well as to the best defenses to General Duty Clause violations.

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.