Work Zone Safety is a Mission Critical Task

We are constantly reminded of the danger to workers during roadway maintenance and repair operations, and as we enter the summer months, these activities, and risks, only increase. Most recently, on May 9, Governor Kathy Hochul issued a press release regarding certain tragic circumstances as set forth below:

Earlier today, a Thruway Authority maintenance worker lost his life while setting up a work zone on the I-90 in Henrietta. Another was injured in the same incident and remains in serious condition. We are heartbroken over this senseless death, praying for the recovery of the injured worker and grateful to first responders who sprang into action to support their fellow public servants. This incident is a tragic reminder: responsible driving is a life-saving skill, and all New Yorkers should remain alert, slow down and move over when approaching a work zone or stopped vehicle.

The Governor’s statement reaffirms the need for the public at large to drive responsibly, including at slower speeds in work zones. However, construction companies must also continue to take all necessary steps to protect their workers as work zone safety is a mission critical task.

The recent decision in Secretary of Labor v. Williams Bros. Constr. Co. arising from roadway operations in Texas is illustrative of the operations that construction companies must undertake to ensure their workers’ safety. William Brothers Construction Co. Inc., (“WB”) is a large highway construction company with approximately 2000 employees and has 95% of its contracts with the Texas Department of Transportation (“DOT”). On October 29, 2021, WB was preparing to open new traffic lanes involving intersections of certain interstate highways in Houston. WB needed to close off approximately two to three mile stretch of Interstate I-69 so that its crews could remove several temporary concrete barriers which had been previously placed to block off public traffic during construction operations. After the barriers were removed, a subcontractor would remove existing road stripes and “re-stripe” the lanes to guide traffic. WB had begun closing the portion of the highway, at approximately 9 pm, and had largely completed the task by around 1030 pm. Once that portion was closed, the concrete barriers were removed so that the re-striping operations could commence. On the same portion of the highway, near the gore point (that area of space that is between the through travel lanes and the off-ramp, which is typically triangular in shape) of I-610 North and South, a WB employee was cleaning up garbage and debris when at some point after mid-night, on October 30, 2021, a vehicle entered the enclosure and struck three workers, two employed by the sub-contractor and one employed by WB who sustained hip and rib fractures. OSHA was notified of the incident and investigated a few days later, which consisted of interviews since the work-site that had been created by the enclosure no longer existed. Following the investigation and multiple interviews, OSHA issued a general a Citation for violation of the general duty clause which cites which requires that employer furnish a workplace which is free from recognized hazards which may cause or are likely to cause death or serious harm. Here the contemplated hazard was struck-by hazards. OSHA’s citation also provided that feasible methods of abatement existed which were among other methods, the certain means in accordance with the Traffic Plan and Traffic Control Plan developed by the Texas DOT which were (a) Position two shadow vehicles with a Truck Mounted Attenuator (TMA) and high intensity rotating, flashing, oscillating, or strobing lights 30 feet to 100 feet in advance of crew exposure; (b) develop a system to ensure a shadow vehicle cannot be moved out of the work zone area; and (c) when the work zone is moving, operation the shadow vehicle so that it is positioned 30 feet to 100 feet in advance of the crew’s work area. As proceeding commenced and based on the submitted evidence, the Administrative Law Judge (“ALJ”), agreed with WBT that under these particular circumstances, this was not a “moving” work zone as all activities were taking place within an enclosure, behind barrels so that proposed abatement method (c) was in applicable.

Here, WB undertook multiple measures to address struck by hazards from active traffic at worksites. These measures included all workers wearing protective vests, flashing arrow boards, multiple types of warning signs, orange barrels for tapered lane closures , periodic placement of off-duty police officers, with flashing red and blue lights, including two officers in the vicinity of where the incident occurred. Moreover, WB used at least one TMA near the incident area. The TMA is a cushion-like equipment designed to absorb energy if struck by a vehicle to prevent serious injury to all parties. The TMA is attached a “shadow vehicle” typically a flatbed truck with a flashing arrow mounted on its top, which combined is called a “crash truck”. The crash truck provides additional protection to workers from stray vehicles. WB also required some training for its employees on struck-by hazards on active roadways and at least two of WB’s supervisors on the project as well as a supervisor’s helper, were trained offsite on traffic control by a course provided by the “Texas A&M Engineering Extension Service” that pertains to the use of temporary traffic controls for temporary construction site and the application of Texas DOT’s Standard Sheets. These sheets are issued by Texas’s DOT to modify and clarify the use of traffic control divisions in various scenarios as generally described in Texas’ Manual of Uniform Traffic Control Devices. WB’s supervisors also trained all employees on traffic control, including a “work-zone class and orientation”, all employees viewed training videos by the Texas DOT regarding work zone training and receiving copies of the WB’s Safety Manual.

The ALJ found that the Secretary (of Labor) failed to meet their burden to show the methods that WB did employ were inadequate, and thus the Citation was dismissed. The ALJ found that the Secretary had failed to establish why two shadow vehicles with TMAs would have been necessary instead of one under these circumstances, nor that the truck’s placement approximately 400 feet from the incident site was improper since it would have interfered with on-going re-striping operations at that time. Notwithstanding the dismissal, the ALJ still commented that WB lacked adequate documentation regarding monitoring compliance of its work rules and disciplining its employees for violations.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445