By Gary Auman, NFBA Legal Counsel
This article covers some very important issues that have a large impact on your safety program and performance.
Recognition of hazards is of crucial importance for all employers in the construction industry. I am not referring here to communication about hazards—that is a completely different topic. I am talking about the recognition of hazardous conditions on the job site.
All construction companies conduct some sort of safety orientation for new employees. This orientation generally covers a variety of topics ranging from fall protection to personal protective equipment to distracted driving. One topic often missed in this orientation, however, is hazard recognition. Hazard recognition is essentially situational awareness—paying attention to what you are doing, where you are and what is around you at all times. The employee needs to evaluate every action before taking it to be sure that it won’t place him or her in danger.
For example, employees are going to perform work on a low-sloped roof with the available fall protection of warning lines and a safety monitor. This fall protection is in compliance with Occupational Safety and Health Administration standards for working on low-sloped roofs. As employees ascend to the work area on a fall morning, the first person on the roof notices that it is covered with heavy dew and patchy frost and is very slippery. He has just recognized a potential hazard: an employee might slip on a patch of frost and slide under the warning line and off the edge of the roof. He is aware of a new hazard, one that the warning-line system may not provide adequate protection against. This is hazard recognition. This is situational awareness. The employee should be trained to raise the safety issue identified with the supervisor and request protection from this new hazard that was not known when the warning lines were installed.
Another example is a situation in which an employee will be exposed to a hazard that is not a hazard under normal operating conditions. For example, an employer is working in a manufacturing facility. An exhaust fan is located on an outside wall and is 20 feet from the ground. It is not a hazard to anyone because it is more than seven feet above the ground. But if the employee is given a job to perform that he determines will bring him into close proximity to the fan, he will, if he has been properly trained in hazard recognition, identify the potential hazard and bring it to the attention of his supervisor before he attempts to complete his task.
Training employees in hazard recognition is required by Code of Federal Regulations 1926.21(b)(2). This standard requires that employees be trained to recognize and avoid hazards. This standard is cited frequently in cases where the compliance officer is performing an investigation after an employee injury. A citation may be issued alleging that if the employee had been properly trained under this standard, he or she would have identified the hazard and taken action to avoid exposure to it.
In summary, the training for hazard recognition means that employees will do the following:
- always be aware of what is going on around them
- always give undivided attention to what they are doing
- carefully consider the task they are about to perform and what exposures they might have while performing it
- consult with their supervisor before proceeding in cases where they feel that they might be exposed to a hazard.
Job Safety Analysis
A job safety analysis should be performed by the crew leader or foreman every day before any employee enters the work area. The supervisor should take time before work begins to walk the entire job site, but especially the area in which work is to be performed on that day. He should note any changes in the work area that may have occurred between the time work was completed the day before and that morning. He should note any hazards that the crew members may confront while they complete the tasks for the day. I always suggest that as soon as the crew arrives and before they begin their work, the supervisor who did the JSA should review his findings with them. He should also make sure that there is adequate personal protective equipment on site for any hazards identified and that any guards required are in place and functional.
As part of the JSA, the supervisor should confirm the integrity of all surfaces his employees will be working on or walking on that day. CFR 1926.501(a)(2), the section containing fall protection standards, requires the employer to determine that all surfaces on which employees will walk or work have the structural integrity to support the weight of employees safely. This determination should be made before the start of any shift on the project and also anytime anything occurs that could in any way affect the integrity of a walking or working surface. I strongly recommend that a written record of the (at least) daily determination be maintained for the duration of the project.
Note: The JSA morning briefing does not constitute training. You are helping your employees be able to recognize hazards, a very important skill. Recently I have been seeing an increase in citations, especially following an on-the-job accident, for failure to train employees in hazard recognition.
The Dangers of a Macho Mindset on Safety
Like many of you, I am on LinkedIn, a platform for professional networking. Recently a safety professional I know forwarded a post to me. The post contained a photograph of about 50 workers erecting what appeared to be a pole barn somewhere in the Midwest. Not one person in the photo was wearing fall protection, and it was obvious that all were working more than 10 feet above the ground. I discussed with the person who had sent the post whether this was a volunteer project in which no OSHA compliance was required or one for which payment was to be received, in which case OSHA regulations would have full application. As we were exchanging our comments, another person commented that we “safety hacks” do nothing but slow down progress and generate income for ourselves and the government with our “bull___.” He went on to extend a challenge: if we were too scared to get up there and work, we should move over so a “man” could take our spot, which is how “stuff” gets done.
As most of you know, I defend employers who have received OSHA citations. I use every defense available to me in order to be successful. But that does not mean that I am not a strong champion for safety in the workplace. Employers must remember that the people they hire to work for them are hired to accomplish the tasks assigned to them, not to risk their lives because their employer still champions the long outdated belief that a person who wants to work safely has no place in the construction industry.
The narrow-minded person who responded to the discussion of the posted photo has his head in the sand, or perhaps has never had anyone working for him get hurt or perhaps just does not care. If he ever had to visit the surviving spouse of one of his employees and explain to her that her husband and the father of her children was dead because the employee wasn’t provided, or required to wear, appropriate fall protection, he might see things differently. Or perhaps he has never had an on-the-job injury that cost so much in increased insurance premiums that he could no longer compete in the industry. Whatever the case, such an attitude has no place in construction in the twenty-first century. I can only hope that those who read this article will take seriously the need to do everything possible to protect the people who work for them.
A Few New Rules
First, effective January 17, 2017, OSHA has adopted a long list of new rules; these formerly applied in the construction industry and now are effective in general industry. These are now also found in Subpart D of the general industry standards. They cover a host of issues—among them, the integrity of walking and working surfaces, scaffolding safety, ladder safety, fall protection, safety concerns on stairways and dock boards, and general training. All National Frame Building Association members who are manufacturers, distributors, fabricators, lumberyard workers or post-frame contractors with a shop area for manufacturing any components used in their construction projects should take note.
Second, on April 6, 2017, OSHA announced a delay in the enforcement of the new standard governing respirable silica in the construction industry. The enforcement deadline has been moved from July 23, 2017, to September 23, 2017. I will keep you posted on further developments.
Finally, OSHA adopted a new standard modifying the Volk decision. This action took effect on January 18, 2017. Following the adoption of the new rule, Congressional action has resulted in vacating the Volks Rule regarding OSHA 300 logs (forms for recording work-related injuries and illnesses). This legislation was signed into law by President Trump on April 3, 2017. The bill states that OSHA can go back only six months or 182 days to issue a citation for a record-keeping violation. In the case noted, OSHA had the ability to cite an employer for a recordkeeping violation that had occurred one or more years before the date of an inspection based upon OSHA 300 logs produced at OSHA’s review of records obtained during the inspection.
Electronic Recordkeeping Standard and Its Anti-Retaliation Provisions
As of the date of writing, the OSHA electronic recordkeeping standard and its anti-retaliation provisions are still in effect. The electronic filing requirements for the OSHA 300A forms are still on track for July 1, 2017. The standard requires that all employers with 20 or more employees in the preceding calendar year electronically file with OSHA its OSHA 300A form for the preceding year by July 1, 2017. The 300A is the summary of occupational injuries and illnesses that must be completed by all employers who are required to complete the OSHA 300 forms. This summary must be completed during January each year, and the 300A must be posted in a workplace common area annually from February 1 through April 30. The electronic recordkeeping standard adds the obligation of electronic filing to the existing obligation and makes the information on the 300A available to the public. OSHA has not yet identified a website address to be used to file the forms or a procedure for doing so. Again, stay tuned!
Gary Auman of Auman Mahan and Furry is legal counsel for the National Frame Building Association.