– By Gary Auman, NFBA Legal Counsel –
At the 2016 Frame Building Expo in Indianapolis, the National Frame Building Association recognized 12 member companies that have demonstrated a serious concern for providing their employees with a safe worksite. These companies recognized that a good safety program is the first step to having a safe worksite. Of the 12 companies that participated in this year’s Gail Miller Recognition Program for Excellence in Safety, one received the highest recognition possible at the Platinum level, and the remainder received recognition at a lower level. Each participating company received a detailed letter containing the grading committee’s evaluation of the components of their safety program. These member companies got involved before the Occupational Safety and Health Administration announced the significant increase in fines that will take effect on August 1, but you still have time to get your house in order. Showing a true commitment to providing a safe workplace to your employees is the best way to minimize the impact of any OSHA compliance inspection. If you can demonstrate your commitment to safety, OSHA is generally willing to work with you—even in those areas in which you were cited.
In the January 2016 issue of Frame Building News I discussed the importance of a solid safety program. In that article I emphasized the various components of a complete safety program, the most obvious of which relate to safety rules, training and enforcement. If you read that article, you know that safety actually involves more than those three components. But, before we return to that topic, let’s look at some recent developments at OSHA.
All construction firms use extension cords. Recently a contractor noticed a change in the tags on newly purchased extension cords. The new labels contained a warning that the extension cords could not be plugged into another extension cord to make a longer cord. In other words, it was not permissible to plug two 50-foot cords into each other to make a 100-foot cord. The contractor wrote to OSHA to ask how the new label would affect his ability to use extension cords as he had in the past. In a letter of interpretation dated September 28, 2015, OSHA stated that it will enforce compliance with such warnings on labels under 29 CFR 1926.403(b)(2). This section on installation and use requires that “Listed, labeled or certified equipment shall be installed and used in accordance with instructions included in the listing, labeling or certification.” So when you purchase new extension cords for use on a job site, check the labels and ascertain that any cords with the new labels are long enough to accomplish your intended purpose. If the cord isn’t long enough, your only alternative will be to hard-wire your power to locations on the worksite where necessary.
The January 2015 Safety Update in FBN discussed the injury-reporting rules that went into effect on January 1, 2015. These rules, in place now for a little over a year, expand the number of situations in which you are required to report injuries to OSHA. Most contractors in all industries are affected by the rules involving amputations and hospitalizations, and these new reporting rules should be taken seriously. Remember, an amputation is the loss of any part of any extremity. A hospitalization involves any admission to a hospital for treatment. If such an injury occurs on your work site, you must report it to OSHA by either calling the OSHA area office or using the OSHA website at www.osha.gov. Hospitalizations need to be reported only if they occur within 24 hours of the accident causing the injury. Because the number of injuries being reported to OSHA is increasing, OSHA has established a procedure for vetting those calls.
The calls received by OSHA are generally handled in one of two ways: they will result in either an on-site investigation or a rapid-response inquiry or investigation. Fatalities always result in an on-site investigation. If you report an injury resulting from a fall or heat illness, an injury involving an employee under 18 years of age or the hospitalization of two or more employees, you will also likely receive an on-site investigation. Other reports will result in your receiving an RRI, in which case you will need to supply certain information to OSHA within five days. OSHA will review that information and then decide whether an on-site inspection is necessary. How you respond to OSHA may well determine whether or not you receive a visit from a compliance officer. Before you call OSHA to report a hospitalization or respond to an RRI, you should seek assistance to ensure that you respond accurately but give only the information requested. This is an occasion when one of the monthly telephone consultations with NFBA’s legal counsel (these are available to NFBA members at no cost) might be very wise.
OSHA’s List of Top 10 Citations for 2015
Recently OSHA released a list of its top 10 citations for 2015. The standard for which the highest number of citations was given was the fall protection standard (29 CFR 1926.501 and following). Other standards that apply to our industry and that made the top 10 list include those related to hazard communication (number 2), scaffolding (number 3), powered industrial trucks (number 6) and ladder safety (number 7). Post-frame contractors should note that fall protection topped the list. Of the total of 35,820 citations issued by federal OSHA in 2015, more than 20 percent were issued for fall protection violations. In that same period, state OSHA agencies issued another 44,006 violations. If the same percentage of these were in the area of fall protection, another 9,000 violations of fall protection standards would be added, bringing the total in 2015 to more than 16,000 violations of fall protection standards.
NFBA is looking very closely at fall protection. The association issued a quick guide for fall protection at the 2016 Frame Building Expo in Indianapolis, and a committee of safety professionals is working diligently to produce a fall protection manual for NFBA members in 2016. While these efforts continue, you need to take immediate steps to get your fall protection program in order. OSHA broke down the federal OSHA fall protection violations into five basic areas. More than half of the violations occurred in residential construction, and other standards with high numbers of violations were those governing unprotected sides and edges, roofing work on low sloped roofs, steep roofs, and holes and skylights. All these areas are found in post-frame construction, so fall protection compliance should be one of the first components of your “complete and fully compliant safety program.”
A Sound and Comprehensive Safety Program
I now return to the importance of a sound and comprehensive safety program. As I stated in my earlier article, your safety program must be your program. You may use multiple resources as a guide, and you may even borrow pieces from other programs that fit your philosophy on safety, but your program is going to work only if it is yours. You may seek the assistance of a safety consultant or your attorney or the NFBA website, but in the end you have to take ownership of the program. In the last issue of FBN I briefly discussed the importance of training. In this article I would like to address a topic covered in the Gail Miller safety recognition program: the requirements concerning the competent person.
A competent person is defined by OSHA in 29 CFR 1926.32(f) as one who is “capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous or dangerous to the employees, and who has authorization to take prompt corrective measures to eliminate them.” The Code of Federal Regulations—29 CFR 1926.20(b)(2)—requires that a competent person make frequent and regular visits to each job site to ensure safe working conditions. Actually, the competent person is to inspect job sites, material and equipment, but many employers overlook these last two obligations.
This part of your safety program must (1) identify who you consider your competent persons; (2) describe their training and authority; and (3) clarify whether they are assigned to a job site full time or whether they will instead make regular and frequent visits to the job site.
Regarding the first point: some contractors believe that every foreman is a competent person by virtue of his or her title. Some contractors believe that anyone they designate as a competent person automatically will pass muster. Other contractors believe that anyone who has completed the OSHA 10-hour or 30-hour course is deemed a competent person. None of these beliefs is correct. The competent person must understand the hazards—both anticipated and unanticipated—associated with post-frame construction and the OSHA standards in place regarding those hazards. Not all this knowledge can be gained by attending the OSHA 10-hour and 30-hour courses. Some needs to be acquired on the job or from others who have had wider experience in post-frame construction. In addition, some standards establish specific requirements for competent persons. Among these are the fall protection standard, the scaffolding standard, the ladder standard and, most recently, the construction industry’s confined-space standard. The person designated as your competent person for general purposes may not have the skill sets to be your competent person in the area of fall protection or scaffolding.
Regarding the second point: after you have designated an appropriate person to serve as the competent person, you must entrust this person with sufficient authority to carry out the responsibilities entailed in that position. When you designate a competent person, you entrust that person with the authority to take any steps necessary—up to and including shutting down the job—to eliminate an identified hazard or to protect employees on the site from that hazard.
And finally, regarding the third point: you need to determine whether the competent person will be on the job site full time or just make frequent and regular visits to the site. Although frequent and regular visits are all that is required, most employers find that having a competent person on the job site full time is the better plan. OSHA frequently takes the position that if an OSHA inspector finds a safety violation on a job site, the employer must not be in compliance with 29 CFR 1926.20(b)(2). The thinking behind this position is that if the employer was in compliance with the standard, the competent person would have seen the violation and corrected it. The counterargument to this position is that the standard requires the presence of the competent person but does not require that the competent person see all violations and hazards and correct them before a compliance officer spots them. I have frequently had to argue this point with OSHA, and my argument is more likely to succeed if my client has a competent person assigned to the site full time.
As you can see, establishing an adequate program for a competent person is not easy. Yet this is only one component of a solid safety program. I will cover additional components of a solid safety program in future articles.
As always, if you have any questions on safety or on any other legal matter, do not forget your NFBA member benefit of a free and confidential monthly consultation with me.
Gary Auman of Dunlevey Mahan and Furry is legal counsel for the National Frame Building Association.