By Gary Auman, NFBA Legal Counsel –
The National Frame Building Association has long had a commitment to helping its members provide a safe place of employment for their employees. As a way to strengthen that effort, NFBA redesigned the Gail Miller Safety Award in 2014, transforming the award into the Gail Miller Recognition Program for Excellence in Safety, a program in which each participant can be a winner. Each program participant attaining a grade of 70 percent or higher on the application receives recognition. But, of much greater importance, all participants, no matter what their level of recognition, receive a detailed letter from the grading committee critiquing the elements of their safety program detailed in their application. The review committee believes that having a solid safety program in place is a good first step in developing and maintaining a strong commitment to safety.
In this article I offer some lessons gleaned from review of the 11 applications submitted in the inaugural year of the Gail Miller Recognition Program for Excellence in Safety.
Safety Training and Orientation
Although many contractors provide some form of safety orientation, few appear to have a program that properly prepares employees for the hazards to which they may be exposed on a construction site. You, the employer, need to do more than provide general information on safety to your employees. You must commit the time necessary to ensure that your employees fully understand the hazards they may face when working in post-frame construction. Having employees take an Occupational Safety and Health Administration 10- or 30-hour class may not be the best option for the new employee; such a class may prove overwhelming at that point. If you train the new employee yourself, you will be able to emphasize those areas that are most important in your company’s work to be sure the employee gets the best possible and most relevant grounding in safety.
Issues that must be covered in any safety orientation program include, but are not limited to, fall protection, hazard recognition and the use of personal protective equipment, along with safety issues related to heat stress and cold weather, electrical hazards and the use of scaffolds (including when scissor lifts and other mechanical devices are used to raise employees above the ground), powered equipment and cranes. In addition, you need to test each new employee at the end of the orientation to assess the knowledge gained. You need to be prepared to withhold an employee from the job site until the individual passes the test following your safety orientation. Without a test you cannot be sure that your employee has an understanding of and commitment to your safety program.
The Competent Person
OSHA requires that a “competent person” conduct “frequent and regular inspections” of job sites, materials and equipment. Although OSHA does not define “frequent and regular,” most area directors suggest that two visits per day to each job site are the minimum. These visits entail more than a quick walk around the site. Most of the program applicants this year appeared to understand their obligation in this area, but few had a solid program in place to ensure that the necessary visits occurred. Many applicants designate each foreman or superintendent as their competent person but do not ensure that the person has the requisite knowledge to take on that responsibility. The competent person must be familiar with the safety standards that govern the work being done, must be able to recognize hazardous conditions to which employees might be exposed and must have the authority to take independent action to protect employees from those hazards. If an employer is relying on one individual to serve as the competent person carrying out job-site inspections, that individual may need to meet additional requirements in certain areas (e.g., fall protection and scaffold safety). So the contractor who designates a foreman or site superintendent as the competent person must ensure that the individual has both the necessary training in each area that presents a potential hazard to employees on the site and the necessary authority to take required action.
A third issue concerns how the contractor ensures safety compliance on the job site daily. Ensuring safety compliance on a daily basis does not require an elaborate program, but it does require devoting some time each day to work on the safety commitment. This begins with a daily briefing on safety issues related to that day’s work. The job briefing should be provided before any employee begins work, and no one should be permitted to do any work until the completion of that briefing. Each day before work begins, the foreman or site superintendent should walk the entire site, make note of any safety issues in areas where work will be performed and take steps to correct any hazards. He or she should meet with the crew to cover the identified safety issues and keep a record of the points covered during the briefing and the names of employees in attendance. The foreman or site superintendent should also conduct multiple daily site inspections for the express purpose of surveying safety compliance. These walk-around inspections should attend to the employees’ use of personal protective equipment, handling of materials and equipment and general compliance with safety measures. Based upon the findings of each such inspection, appropriate corrective action and disciplinary measures (when necessary) should be undertaken. The site inspection should also be used as the basis for follow-up safety training. The inclusion of questions on the application about job-site audits and daily training is intended to emphasize that safety is a full-time concern.
The application also inquired into the applicant’s safety enforcement program. Answers to this question brought several points of concern to the surface. First, your safety enforcement program should be directed only at safety; it should not include attention to unrelated disciplinary matters such as attendance and work quality. Your safety enforcement program must be communicated to your employees and be objectively and uniformly enforced. There is no place for subjectivity in issuing discipline for safety violations. OSHA officials may well consider enforcement during its determination about the effectiveness of your safety program. Also, if OSHA does note violations, a good enforcement program may save you from citations or may be used in your defense if citations are issued. Such a program also emphasizes to your workforce that you take safety seriously. Of course, if you have a good enforcement program, you may at some point have to make difficult decisions concerning some good employees, but the most important consideration is that employees are working safely. Many members of the review committee favor a four-step program in which employees receive first a verbal warning, then a written warning, then a three-day suspension without pay and finally termination for safety violations occurring in one calendar-year period Alternatives to such a progression are acceptable, but whatever method you employ at your company must realistically, objectively and consistently enforce your safety program.
The Use of Personal Protective Equipment
Another question in the application addressed personal protective equipment. Some participants in the recognition program were advised that the way they were addressing PPE was not entirely compliant with the standards governing PPE use. Whenever an employee’s work may expose him to a hazard, that hazard must be assessed, and if there is no other way to protect the employee, appropriate PPE must be provided. Some employers believe that employees must provide their own PPE or at least pay the employer for it. Others believe that the employer need purchase only the first piece of PPE and that the cost of replaced equipment can be charged to the employee. Neither view is correct. With two exceptions (safety shoes and prescription safety glasses) PPE must be provided to the employee at no cost to the employee, and it must be replaced as needed at the employer’s cost unless the replacement is necessitated by the employee’s horseplay, negligence or malicious treatment of the PPE. Employers must clearly communicate these latter exceptions to all employees. Finally, employees must be trained to inspect the PPE before each use and to wear, store and maintain it properly.
Drug Testing and Enforcement
Another important part of your safety program relates to drug testing and enforcement. No employer can afford to have employees working on the job while under the influence of drugs, and this is especially important in the construction industry. Participants in the Gail Miller program were asked to describe their drug-free/alcohol-free workplace policy. The committee grading the applications looked at two components: (1) When is drug testing required? and (2) How is a positive test handled? The committee was looking for, at a minimum, preplacement testing, postaccident and postinjury testing, for-cause testing and random testing. Finally, if the employer permits an employee with a positive test to go through a rehabilitation program and then return to work, the employee should be required to sign a last-chance agreement. In such an agreement the employee acknowledges his understanding that upon returning to work, he will be subjected to increased random testing and that following any subsequent positive test, he will be terminated with no chance of being rehired.
The last safety lesson learned relates to heat stress. Every contractor needs a compliant program covering heat stress (see the Safety Update article on this topic in the June 2015 issue of Frame Building News). The committee grading the applications was looking to see whether the contractor’s program contained the five major components of a compliant safety program on heat stress. The first step in such a program is to provide acclimatization for new employees and employees who have been away from a high–heat index environment for an extended period of time and are moving into working in such an environment. The second step is to ensure that all employees are properly hydrating themselves. The third step is to establish procedures for a work-rest regimen appropriate for the heat index. The fourth step is to provide cooling-off areas in close proximity to the work area. The fifth step is to train employees about the hazards of working in a high–heat index environment, the symptoms of heat stress and the methods of first aid for heat stress. The committee also sought confirmation of the contractor’s awareness that enforcing a heat-stress safety program is the employer’s responsibility, not one that can be transferred to workers.
The fact that OSHA is taking the heat-stress hazard seriously was brought home the week of February 9, 2015, in a new decision by an administrative law judge. In her decision the judge set very high expectations for the actions an employer needs to take in the implementation of its heat-stress program. Because of the details and expectations set out in this decision, your attention to the Safety Update article on heat stress in the June issue of FBN is critical.
In conclusion, a safety program is not a boilerplate document that can be downloaded from an Internet site or borrowed from another employer. Your company is unique, as is the manner in which you erect a building and operate your company from day to day. Therefore, your safety program has to fit your company. Although you can use a boilerplate program as a guide, you need to take the time required to prepare a safety program that will work for your company.
A Reminder about Accident Reporting
On a separate note, I would like to remind all contractors and suppliers that the new requirements for reporting serious workplace accidents are now in effect (see the Safety Update in the January 2015 issue of FBN). Any accident resulting in the hospitalization of any employee for treatment within 24 hours of the accident requires the employer to notify OSHA of the accident by telephone within 24 hours. This report can be made by calling the local area office during normal business hours or calling OSHA’s toll-free number at 800-321-OSHA (6742). (OSHA also plans to make an online reporting form available. I encourage readers to check the OSHA website at www.osha.gov if they need to make a report and would like to do so online.) The 24-hour reporting requirement also applies in cases involving the loss of an eye or the amputation of any body part. The requirement for reporting workplace fatalities remains at 8 hours.
Gary Auman of Dunlevey Mahan and Furry is legal counsel for the National Frame Building Association.