-By Gary Auman, Legal Counsel for NFBA-
Rather than focusing on a specific safety issue important to the construction industry, in this article I discuss a range of current safety topics, including the areas in which the most frequent safety violations have recently occurred, changes governing the filing of retaliation claims, safety areas of particular concern to the post-frame industry, the broadened use of the general-duty clause in the Occupational Safety and Health Act of 1970, and safety issues related to the use of contractors and subcontractors.
Frequently Cited Safety
When construction companies consider the allocation of their resources in the area of safety, it’s important for them to be aware of the areas in which the most frequent OSHA citations have occurred. Of course, resources need to be expended wherever needed to improve an employer’s safety efforts, but looking at the enforcement side of the equation is helpful. A number of violations cited by OSHA in fiscal year 2013 fell in the area of construction industry standards. The number of citations related to fall protection was greatest (first overall). The second-highest number of cited violations related to hazard communication; the third-highest, to scaffolding; the seventh-highest, to ladders. Of the remaining areas with a high number of citations, two overlap the construction area: respiratory protection, with the fourth-highest number of cited violations, and powered industrial trucks, with the sixth-highest number.
It is interesting to note that 2,000 more citations were issued for fall protection (first) than for hazard communication (second). Within fall protection the most frequently cited area was residential construction (related to wood-frame construction and steep-sloped roofs). In this area 3,000 more citations were issued than for the next area, which involved unprotected sides and edges.
Filing of Retaliation Claims
As I have noted many times, employers are prohibited from taking any action against an employee for any action of the employee concerning safety—from making a safety complaint to the employer to filing a complaint with OSHA. On December 5, 2013, OSHA made it easier for employees to file retaliation claims against their employer. A new website enables employees to file retaliation complaints online, without having to go to an agency office. This website enables electronic filing for complaints of retaliation not only concerning OSHA but also concerning the other 21 agencies for which OSHA processes and investigates retaliation complaints.
Safety and the Post-Frame
The post-frame industry continues to have difficulty taking safety and OSHA seriously. This is most true with small contractors, who may think that an accident or an OSHA inspection is less likely to happen to them. In reality, we are seeing a significant increase in the number of inspections of small contractors. When these contractors call me for advice as part of our NFBA legal consultation program, I often find a significant lack of knowledge and understanding of even the most basic OSHA principles.
For example, companies that employed 11 or more people in the last year are required to maintain the OSHA 300 Log of Work-Related Injuries and Illnesses. Although this is a simple task—the log takes about 5 minutes to complete and maintain—very few small contractors have taken this step. Failure to produce this log for an OSHA compliance officer during an inspection can result in a fine of $1,000 or more. (You have four business hours to produce the OSHA 300 from the time a compliance officer asks to see it.) In addition, if you are required to maintain the OSHA 300 log, you are also required to post Form 300A, Summary of Work-Related Injuries and Illnesses, from February 1 to April 30 each year. Again, this is a simple form to complete. Most OSHA compliance officers will ask you to produce both forms during the initial phases of any inspection.
By the time you read this article, the one-week period (June 2–6) for OSHA’s National Fall Prevention Stand-Down will have passed. If you didn’t do a stand-down, it is not too late to take time to train your employees on fall protection and on ladder and scaffold safety. Although you will probably no longer be able to obtain the certificate of participation, you will still be able to show that you did the training on these topics. Our employees have exposures in these areas every day, and they are of high concern for OSHA.
Finally, as we enter the summer building season, be aware of the dangers of heat stress for your employees. This hazard is being taken very seriously by OSHA. Giving lip service to this topic or just telling your employees to be careful working when it gets hot outside is not enough. The National Institute for Occupational Safety and Health has identified five components of an effective and compliant heat-stress program: (1) acclimatization, (2) hydration, (3) a work/rest regimen, (4) establishment of cooling-off areas, and (5) training. Take time now to ensure that your program covers all these points and effectively protects your employees from the dangers of working in a high heat-index environment.
The Broadened Use of the
The general-duty clause is part of the Occupational Safety and Health Act of 1970. It is part of an act of Congress, signed by the president, not a regulation promulgated and adopted under that legislation. The general-duty clause requires every employer to provide its employees with a place of employment that is free of recognized hazards that are causing or are likely to cause death or serious physical harm. I often call the general-duty clause OSHA’s catch-all standard. It may be used by OSHA only when there is no standard that governs the observed unacceptable activity of an employer. It may not be used as a substitute for specific rule making. For example, if an OSHA officer observes an employer using a forklift in a manner that OSHA does not consider safe, but the method used by the employer is not covered by the specific standard on powered industrial trucks, OSHA is barred from using the general-duty clause to cite the employer because OSHA should have anticipated that use and regulated it when it promulgated the forklift safety standard. But OSHA is contemplating changing this restriction on the use of the general-duty clause.
OSHA has cited an employer on a chemical exposure where the employer was in compliance with an exposure level of 100 parts per million permitted by the specific standard but had exceeded the exposure level of 50 ppm recommended by the National Institute for Occupational Safety and Health. If OSHA succeeds in this deviation from having to enforce a specific standard in this case, a precedent dangerous to all employers in all areas will be set.
OSHA standards have always been treated as “notice” requirements for the purpose of enforcement. Employers are presumed to be “on notice” about what is contained within specific OSHA standards. A NIOSH recommendation is not a properly adopted standard and therefore has no force of law. OSHA is trying to argue that the fact that NIOSH has a recommended exposure level below that permitted by OSHA establishes a recognized hazard. OSHA is taking this approach because it has been unable to move new standards forward to final rules to replace what it considers outdated exposure standards. If permitted to take this approach, OSHA will be only a small step from taking the same approach with all safety and health standards using advances made by other safety organizations, including NIOSH. I bring this to your attention because if OSHA’s approach is confirmed by the Occupational Safety and Health Review Commission and then by the courts, all employers will have to take an entirely new approach to safety and health compliance.
The Use of Contractors and Subcontractors
Finally, I want to discuss a recent case (Secretary of Labor vs. Stevers Roof Side Remodel, LTD, 2013 OSAHRC LEXIS 91) decided by Judge Ken Welsch of the Occupational Safety and Health Review Commission. Judge Welsch addressed three interesting issues that often confront small contractors: OSHA’s coverage of temporary workers, the issue of whether a citation can be issued if workers were on a work break at the time of the inspection, and the issue of whether it is harassment for OSHA to conduct a complaint inspection if the complaint was made by a competitor.
According to evidence presented at the hearing, the company employed one person, the owner, and hired temporary employees to perform the labor on the job as subcontractors. The temporary employees were supervised by the owner, Thomas Stevers. Stevers testified that he gave directions to the workers on where they were to work, how long they were to work, and what overall objectives were to be accomplished. The judge concluded that Stevers supervised the employees because he was generally present on the project to ensure that the work was performed in accordance with his requirements. Stevers also monitored the workers’ daily progress to ensure that it was done safely and on schedule; he even prevented the compliance officer from speaking to the workers. The truck and equipment used during the project—including personal fall arrest systems, ladders, pick boards and slide guards—were the property of Roof Side and were provided to the workers to use. On the basis of the preceding, Judge Welsch concluded that the workers were not independent contractors. The judge pointed out that one of the workers even identified himself as the foreman when the compliance officer arrived on the job site.
Regarding the issue of whether a citation could be issued for exposures to fall hazards while the workers were on break, the judge again found in favor of OSHA. The judge pointed out that under current case law “employees are considered ‘in the zone of danger’ either during their assigned working duties, their personal comfort activities while on the jobsite, or their movement along normal routes of ingress or egress form their assigned workplaces.” This case serves as a reminder to all employers that they have responsibility for the safety of their employees on the job site at all times.
Finally, on the issue of harassment the judge again ruled in favor of OSHA. He stated that although he was sympathetic to the employer’s concerns about complaints lodged by a competitor, an unsafe condition indisputably existed, was observed by the compliance officer when he arrived at the job site, and needed to be removed.
Although this decision involved a residential roofing contractor, it has application to anyone in the construction industry. Our takeaways from this are straightforward. First, you need to accept the fact that you are responsible for the safety of your employees at all times when they are on your job sites. The only possible exception to this is if they engage in unpreventable employee misconduct or deviate from their work-related activities without your knowledge. Second, if you have any direct control over those working on a job for you, they will be considered your employees and not independent contractors. And finally, it is not going to matter how OSHA gets to your job site, it is what is observed by compliance officers after they are there that is important.
This case tells us something about how OSHA approaches health and safety issues in situations where employers use temporary employees or subcontractors to get all or part of a project completed. In a later article I will discuss this issue further, providing information on the guidelines for using temporary workers and subcontractors and remaining in compliance with health and safety standards. FBN
Gary Auman of Dunlevey Mahan and Furry is legal counsel for the National Frame Building Association.