By: Thomas H. Welby Published: September 2013

Safety Policy: The Meaning "Employee Exposure" Under OSHA

 Construction sites, certainly any but the smallest projects, pose unique problems in safety management, due to the fluidity of activities, as sequential tasks are undertaken, carried out, and completed; and the multiplicity of trades, with companies and their employees coming and going.  In the course of the typical multi-employer project, "zones of danger," or places on or about the site where activities and/or conditions present hazards to employee safety or health, are rarely static for any length of time, but are constantly being created, and ceasing to exist, as the project progresses.

Often, areas in which hazards have existed, but in which appropriate counter-measures have been taken to comply with OSHA and minimize risks to employees, are not sufficiently attended to, as work being done there comes to a conclusion.  For any of a number of reasons, employers may take it for granted that experienced construction professionals will know to stay clear of such zones, during the interim from the completion of the primary work being done there, until such time as any left-over hazards are resolved.  Trades are naturally disinclined, also, for economic and other reasons, to see the correction of left-over hazards, or indeed any hazards of other trades' creation, as being their responsibility.  Trades whose employees will not be assigned to work in the immediate area in which left-over, or other hazards created by others, may be present often assume that those hazards are "not my problem."  A much sounder approach is along the lines of "if you see something, say something," as responsibility for employee safety, although foremostly the responsibility of the general contractor, remains a shared responsibility.

A common failure, also, is that employers often underestimate hazards presented by conditions affecting areas in which employees are not required or expected (or even authorized) to be present, but which are not blocked off, and therefore remain accessible.

This issue came up in a recent case decided by an OSH Review Commission Administrative Law Judge, Secretary v. Performance Contracting, Inc. In that case, the employer, subcontractor PCI, was doing framing work on the inside of a casino building in Oregon.  PCI was also working from scaffolds, to install insulation panels on the exterior of the building's west side.  The scaffold on the west side of the building had just been released to PCI by the subcontractor that had erected it, and had been inspected by a PCI employee.

During an OSHA inspection, the Compliance Officer, and several persons accompanying him on his walkaround of the jobsite, observed the scaffolding work being done in the northeast corner of the building.  Then, the Compliance Officer and his companions exited the building through an opening in the west side of the building.  After going through the opening, the group walked underneath the scaffolding that had been erected along the west side of the building.  In doing so, they went through a space underneath the scaffold's planking, which was between the cross-bracing of the two abutting scaffolding sections.  This space was about 24 inches wide.  Additionally, there was an open area overhead, formed by a 12" gap between the interior edge of the scaffolding, and the exterior wall of the building.

A safety engineer who had accompanied the Compliance Office on his walkaround estimated that it had taken only about one second for the group to pass through the unprotected area.  The inspection group went through the opening only once.  A project manager for the employer's parent company testified that the opening was not one of the three "designated" access points approved by the general contractor.  He testified, further, that he had been regularly on the jobsite, and had never observed anyone walk through the opening on any other occasion.

Climbing up onto the west side scaffolding, the C.O. observed that there were insulation panels, tools and buckets of adhesive at various places on the platform, and that the interior side of the scaffolding, to the north of the opening described above, had no toe boards.  Since there was a 12" gap between the unprotected interior edge of the scaffold platform, and the external wall of the building, foreseeably materials on the platform could fall through that gap to the ground below, posing a danger to anyone who might be on the ground close to the building.

PCI was cited for a “Serious” OSHA violation in the alternative.  That is, it was charged with violating OSHA, in that it failed to do at least one of (1) erecting a barricade to prohibit entry into the area beneath that section of the scaffolding not equipped with interior-edge toe boards; or (2) erecting toe boards along the interior edge, to prevent objects from falling from the platform to the ground below.

PCI contested the citation.  It did not contest the absence of a barricade and interior-edge toeboards. It argued, instead, that there was no hazard, because (1) materials were not stored or stacked on the scaffold above the unprotected area (beneath which the C.O. and others had briefly passed); and (2) because that opening was not an approved access point, no one had been seen to use it as such, and no employees were observed working or standing in the unprotected area between the scaffold and the building.

As for the toeboards, the employer argued that the work to be done on the exterior walls beneath the 12" gap (the application of stone work to the lower half of the building) was not in progress, and was not to begin until after the scaffolding had been removed.

Although it was not expressly stated as such, essentially PCI's argument was that one element indispensable to any OSHA - employee access — had been only de minimis, or too trifling to sustain a violation.

The Administrative Law Judge, however, sustained the violation.  He did downgrade it from "Serious" to "Other than Serious," chiefly as buckets used for adhesive were too large to fall through a 12" gap, and the small likelihood that employees wearing hard hats would have sustained a serious injury from smaller items such as rollers, mesh, spatulas and hawks.

The ALJ was unpersuaded by PCI's arguments.  It found that employees were exposed to the hazard of falling objects in the unprotected area.  Commission case law, the ALJ noted, does not require actual employee exposure.  The opening on the west side of the building, although not designated as an access point, was obviously a potential access point as it was used as such by the C.O. and several employee representatives while work was being performed on the scaffold above.

The "takeaway" from this discussion is that employees, for purposes of OSHA, are deemed to be "exposed to" a hazardous condition whenever it is reasonably predictable, either by operational necessity or otherwise — including inadvertence — that they have been, are, or will be in the zone of danger.

Employees may be in the zone of danger when they are engaged in their assigned duties, their personal comfort on the job, or their normal means of coming and going to and from their assigned working areas.

Therefore, in order to avoid both employee injuries and OSHA citations, care must be taken to identify "zones of danger" at jobsites.  Whenever it is impractical or uneconomical simply to remove the hazard altogether, a "zone of danger" where employees are not expected to be present should be clearly marked off (or barricaded), employees should be instructed not to enter it, and entry into the restricted area should result in employee discipline as a safety rule infraction.

      Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner at Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains.  Geoffrey S. Pope, counsel to the firm, collaborates in the preparation of this series.  Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

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