“On the Top Ten list of OSHA regulations that are most often violated in the construction industry, seven of those apply to post-frame construction,” reports Gary Auman, general counsel for the National Frame Building Association (NFBA).
The most glaring safety issues in post-frame are deficient fall protection, personal protection and ladder safety, says Auman, attorney with Dunlevey, Mahan & Furry in Dayton, Ohio.
“The first thing you must do is fulfill the moral obligation to provide a safe environment for your crews,” he adds. “Even though you might not be doing things exactly how OSHA wants it, they’ll know you’re working in good faith and might not cite you or give you only a small penalty.”
On the other hand, rural builders take risks if they think OSHA rules are only a concern on big projects. “Those projects might use more bucket trucks, scissor lifts and cranes,” says Auman, “but in fact, most safety concerns are the same on projects big or small.”
The good news is that builders could “eliminate 99 percent of OSHA inspections simply by putting in place an injury and illness prevention plan,” advises Stuart Nakutin, director of safety and claims for Cavignac & Associates, a San Diego-based risk management agency that provides safety consulting for construction firms.
Benjamin Mangan, American Safety Training in Davenport, Iowa, also believes the best offense is a good defense.
“There are massive numbers of OSHA regulations and many areas are left to interpretation,” observes Mangan, whose firm provides training and, through its sister company Mancomm, professional publications on OSHA compliance. “So it’s important to be prepared by building up your knowledge and having a safety plan.”
One builder that is serious about its safety is Brickl Brothers of West Salem, Wis., a design/build general contractor specializing in agricultural and commercial construction. The company covers a 150-mile radius, working in Wisconsin, Minnesota, Iowa and Illinois.
“Having a written safety program has benefited us because it identifies and communicates, in a way that’s accessible to all employees, our expectations and standards,” explains Eric Bauer, human resources and safety manager.
New employees are provided with three hours of dedicated safety training. Brickl Brothers’ employee handbook contains four chapters that cover personal protective equipment, fall protection, material safety data sheets and OSHA requirements. All field employees are required to attend 10 hours of OSHA training twice each year. All foremen hold weekly toolbox talks at each jobsite, with topics for these five- to 10-minute safety meetings set by the company.
Once a safety program is in place, daily inspection and documentation are vital. According to president Grace Applegate of Applegate Associates, an OSHA compliance and safety consulting firm in Union, N.J., “To avoid OSHA citations, a company should have a company- and work-specific safety program. That’s your foundation.”
Site supervisors should be trained to conduct daily inspections, correct hazards, document corrections, hold weekly toolbox talks, record meeting attendance with a sign-in sheet and document the subjects discussed.
Documentation shows to OSHA “that you’re implementing your safety program,” Applegate continues. “Daily inspections not only correct hazards before they can cause accidents or injuries,” she states, “but are vital because construction sites can change daily.” For the same reason, weekly toolbox talks or safety meetings “provide opportunities to identify to your workers the hazards associated with work being conducted that week.”
Applegate adds, “You should be able to show documentation that workers are disciplined if they do not follow company safety rules.” Builders who document that workers were told about a safety procedure, and that the procedure is being enforced through employee discipline, can present an effective defense at an OSHA inspection.
The same holds true for equipment. Applegate remembers a contractor client who was about to be cited for a defective alarm, “but the jobsite supervisor produced documentation that the batteries had been checked that morning and were working. We all know batteries can fail instantly, but by documenting that a daily checking procedure was followed, the builder prevented a citation.”
If builders effectively implement their safety programs through inspection and documentation, “then you should pass an OSHA inspection with flying colors,” Applegate advises.
Even more important, adds Auman, “You’re acting in the best interests of your employees — and their families — by having an enforcement program that’s fair, effective and has real disciplinary consequences for any violations.”
Brickl Brothers adheres to a zero-tolerance policy. “Any safety infractions are addressed in a formal manner,” explains Bauer. “It starts with a verbal warning and then, for each new infraction, proceeds to a written warning, then suspension without pay, and then termination. We look very hard at the severity of a safety violation and whether the employee is putting himself or others in imminent danger. And foremen are held to a higher standard. If there’s a safety violation on the jobsite, it’s also put in the foreman’s file.”
Instilling a safety culture
An Injury and Illness Prevention (IIP) program is required at all worksites, notes Cavignac’s Nakutin.
Under OSHA rules, the program must assign responsibilities and set recordkeeping procedures; offer employee training and ensure compliance; establish procedures for employers and workers to communicate about safety issues; provide for scheduled inspections; and set up a system to identify and correct hazards and investigate accidents.
“Employers must adopt and post a Code of Safe Practices at each job site,” continues Nakutin, “and hold periodic meetings of supervisors to discuss the safety program and accidents that have occurred.”
Yet a safety program based only on regulatory compliance is not enough, according to National Association of Safety Professionals. Regulations are merely required minimums. In fact, employers increase their danger by basing safety programs on minimum legal requirements and thus “working as close to the edges as possible,” suggests the NASP. Further, any “safety program based solely upon saving the employer money is sorely misguided.”
What employers must instill is a “safety culture” based not “on a foundation of saving money alone” but on the conviction “safety is an ethical responsibility.”
Auman echoes these concerns. “If you comply with only the minimum legal requirements,” he explains, “you won’t get cited — but you might not be providing the best protection to your employees, either.”
For example, a builder might provide crews with hard hats that comply with OSHA standards, Auman continues, “but it’s a fact that some employees won’t wear them all the time.” Yet if the hard hats are compliant, has the builder fulfilled its duty?
“Your moral obligation is to protect your people,” he says. “Maybe you should provide more comfortable hats — or have a monitoring program with incentives, or supplement hard hats by installing a cover over the work area.”
At Brickl Brothers, Bauer agrees “it’s important to go above and beyond OSHA regulations.” Since OSHA’s rules must be general enough to cover entire industries, he explains, “their general guidelines might not cover every situation we face. Some items OSHA may require part of the time, we require 100 percent of the time.”
What to expect in an inspection
Nevertheless, advises Mangan of Mancomm, employers do fear OSHA inspections and should establish procedures to follow if an inspection occurs. He recommends builders keep an “OSHA inspection kit” with paper and pens, tape recorder and disposable camera for documentation; flashlight and tape measure; “Exit” and “Danger: Do Not Use” tags to fix problems on the spot, if possible; tote bag to carry inspection materials and company-specific items.
“You should also know the locations of air-quality monitoring and noise monitoring equipment,” Mangan adds, “and be sure to keep a ‘Who to Call’ list if an inspector appears. OSHA inspectors can be asked to wait up to 45 minutes for a specific company official to arrive.”
Should an inspector appear at the worksite, Mangan says, procedures need not be complicated. Lead the inspector to a waiting area while company officials and union representatives are notified. Centralize all pertinent information, such as training documents and logs for injuries and illnesses, for easy access. And identify to the inspector any confidential or propriety information so that it will not become public record.
“You also need to determine whether you’ll let the inspector proceed with the inspection,” adds Nakutin, “or whether you need to buy time by requiring the inspector to leave and obtain a warrant, or asking the inspector to come back the next day because you are busy. You should also instruct your appropriate personnel to quickly tour their areas and make ‘last minute’ improvements.”
An OSHA inspection begins with an opening conference in which the inspector explains why the establishment was selected for inspection. “Insist on seeing the inspector’s credentials,” says Mangan, “and establish whether the inspector has a warrant. Then determine which documents the inspector wishes to review.”
During the inspection, Nakutin explains, OSHA personnel will examine an employer’s recordkeeping and documentation, look over the worksite, and may interview management, the labor representative, and the rank and file. “Someone who’s familiar with your written programs and with your jobsite,” he recommends, “should accompany the inspector at all times to ensure questions can be answered appropriately.”
If the OSHA inspector identifies any “quick fix” items, Nakutin suggests, “take care of them immediately or by the time the inspector returns again. Be sure to take before-and-after photographs of every improvement you make. And if the inspector takes any photographs or video, or conducts noise or air monitoring, you should do the same.”
‘The inspector should not be allowed to conduct the walkthrough alone,” says Mangan. Company representatives “should take notes on what is seen and discussed, what samples and/or pictures are taken, and what documents are reviewed.”
The inspection ends with a conference in which the OSHA inspector discusses all hazardous conditions observed and indicates all citations that may be recommended.
“He should explain your appeal rights and the procedures for contesting citations, and inform you of obligations regarding any citations issued,” notes Mangan, “and on your part, you should take good notes, request a receipt for any documents provided, and don’t make admissions of guilt or argue the case with the inspector. Know your Miranda Rights and keep your answers to a simple ‘yes’ or ‘no’.”
For his part, Auman offers specific advice for the closing conference.
“The OSHA inspectors will tell you if they found situations where you weren’t compliant and then go over a list,” he explains. “They’ll ask you how long it will take to fix. But don’t say how long. In fact, you shouldn’t respond to them — except to thank them for the visit and show them the door. Anything else could be seen as admission of guilt.”
OSHA violations classified as “willful” and “repeat” violations carry maximum fines of $70,000. “Serious” violations can be penalized a maximum of $7,000, and fines for “other than serious” violations may range from zero dollars to $7,000. OSHA often assigns no penalty “in order to write a large number of citations without it being unrealistically expensive for the employer,” explains Nakutin. “But this is typically only done once. If OSHA finds the same violations in the future, you may be cited for willful or repeat violations.”
Nakutin adds, “OSHA may offer a reduction in the penalty if it feels the inspection otherwise went well and you agree to pay the penalty early.”
Employers who are willing to go to court may send OSHA a “notice to contest” within 15 days of the inspection. But a more common response is to schedule an “informal conference” with the OSHA area director within 15 days of receiving the citations.
“That enables you to challenge the citations and penalties, or request that the timing or content of the abatement be revised, without going to court,” Nakutin says. “But regardless of the outcome, you give up your right to officially contest your citations.”
Auman advises post-frame builders to be proactive during the 15 working days allotted to negotiate a lower fine, pay the fine as issued, or file a notice of intent to appeal.
“I encourage all builders — no matter how small the fine or how insignificant the citation seems to be — to spend time making sure they’re guilty before paying the fine outright,” he recommends. “Did you really do something wrong? Or are you paying the fine just to avoid the hassle? When you accept a citation, an OSHA violation stays with your company forever.”
Builders that compile a record of repeated and willful violations eventually find themselves unable to secure any larger commercial projects.
“But for example,” Auman states, “rather than pay the fine for a hard hat violation, you can counter by saying the violation was ‘unpreventable employee misconduct.’ You can get the citation thrown out if you can prove that you have a suitable safety program.”
The danger of simply paying the fine to avoid the hassle is that “you can’t go back later and say you didn’t commit the violation,” Auman points out. “So once you have a violation on your record, any further citations become ‘repeat’ violations — something you absolutely want to avoid. That’s why you’ve got to treat every citation seriously. Sit down with an attorney or safety consultant, go through the violations alleged by OSHA at the closing conference, and see if you can win any of these cases and get them off your record.”
When do you need help?
“You’ve got to be an expert in all the different aspects of your work, and so it’s hard to also be an expert or a specialist on OSHA regulations,” notes Grace Applegate. “You wouldn’t want to go to court without a lawyer,” she adds, “and in the same way, when you go through an OSHA inspection it’s important to have a safety consultant you can call on.”
By contrast, NFBA’s Auman believes that post-frame builders are unlikely to need a safety consultant onsite during an OSHA inspection “unless you have hundreds of men on the job. Post-frame construction doesn’t have enough different kinds of hazards to warrant having a consultant during the inspection. As an employer, you should know which OSHA standards apply to post-frame building and what you must do to comply. Then train your crew leaders on what needs to be done, make them accountable for safety on the jobsite, and hold them to a higher standard.”
That advice is echoed by Bauer, though he warns that giving crew leaders responsibility does not relieve the employer of responsibility. Brickl Brothers adds another level of accountability. Bauer and project supervisors conduct surprise safety inspections at company jobsites. “All are unannounced and, depending on the size of the project, there might be several of these inspections,” he says.
The National Frame Building Association provides a free OSHA compliance guide (find it at www.NFBA.org) to its members that “covers areas where a post-frame builder might have issues,” Auman says. “Read that book, develop a safety program, and then enforce your program.” Still, he adds, a safety consultant can be helpful in assessing any OSHA citations that might be issued during an inspection.
To find a safety consultant who knows OSHA regulations as they apply to construction, advises Nakutin, “You can get recommendations from other builders, check with your local AGC (Associated General Contractors) or ABC (Associated Builders and Contractors) chapters, or contact NASP (National Association of Safety Professionals). Or you could call your OSHA area office and ask who they’ve worked with.”
Applegate, who served in the Bush Administration as labor liaison for OSHA, reports the agency “is now in the mode of working with employers.”
Nakutin says “OSHA has done a 180-degree turnaround. They’re no longer like the KGB. Now they’re really trying to assist employers. The agency realizes that when employees are healthy and working, everybody wins.”
Too much of a hurry
Nevertheless, primary responsibility for safety remains with builders.
For that reason, Auman is concerned that “less than 5 percent of post-frame crews wear fall protection. And yet fall protection — for workers who are more than 6 feet above the ground — is the top thing OSHA looks for when it visits construction sites.” Since guardrail or safety net systems “are virtually impossible in post-frame construction application,” he adds, builders must enforce the use of personal fall protection equipment.
Even ladder safety — an area in which compliance is fairly easy to attain — trips up many builders. Making sure that ladders are undamaged, have solid footing, are put up at a 4-to-1 slope, are tied off and extend 3 feet above the eave, is not all that difficult.
“In most cases,” believes Auman, “builders get cited because they’re in a hurry. Post-frame is a rapid form of construction. Builders want to keep labor costs down. So they don’t take the time or spend the money to get safety right. But if you look at what even a single injury costs — in terms of workmanship, efficiency, labor and replacing the employee — then a safety program has a small price in comparison.”
That’s the way Brickl Brothers sees it. Several years ago, a roof truss came down due to weather and a worker was injured. “The person wasn’t seriously or fatally injured,” relates Bauer, “but it caused us to examine our procedures. When we saw how high worker compensation rates are, that was also a good motivation to do something.” The company responded by developing its own proprietary fall protection system.
“It’s a bracketing system that we use on post-frame projects primarily to erect trusses, and it’s been very successful,” reports Bauer. “We’ve had no fall injuries since its inception and the system has prevented someone from being injured.” Brickl Brothers even paints the brackets pink, he adds, because “we want our employees be thinking of their wives, mothers, and daughters when they’re on the jobsite.”
Brickl Brothers’ fall protection initiative is a good example of being proactive. The company is taking the smart approach, Auman believes, in part because rural builders can face uneven OSHA enforcement — especially if they do jobs in multiple jurisdictions. Then, too, 26 states have their own state-level equivalent of OSHA.
“Compliance officers can be all over the map, as far as attitudes toward compliance,” he notes. “In one jurisdiction you might get warned about even one or two small things, and in another jurisdiction you could be assessed the
When builders claim to be “surprised” at a citation, even Auman can be skeptical.
“About half the time, employers know they’ve done something wrong. But they rationalized it, thinking it’s something they didn’t really need to address or figuring they wouldn’t get inspected.”