By: Thomas H. Welby Published: March 2014

Leading the Way on Construction Safety

As lawyers to the construction industry, our firm counsels clients in how to prevent OSHA violations; how to negotiate with OSHA when citations occur; and, occasionally, in contesting citations and associated penalties.

Many articles in this series address nuts-and-bolts issues of OSHA compliance, and others are intended to acquaint readers with how things work procedurally, so that they will be familiar with inspection, citation, and contest procedures sufficiently to protect their rights.

It’s important, certainly, to try to avoid OSHA citations.  When they do occur, you’re entitled to insist on the rules being followed, and to contest a citation, if it lacks a proper legal and/or factual basis.

It’s important, however, not to become obsessive about OSHA citations.  Construction work is inherently dangerous.  The construction sector accounts for the single largest component of workplace fatalities in the U.S. each year, and the fatal injury rate for construction is fourth among industry sectors (agriculture, forestry, fishing and hunting has the highest rate, followed by the mining, quarrying and oil and gas extraction sector, the transportation and warehousing sector, and construction).

Construction injuries cannot be reduced to zero.  If you stay in business, you will be inspected by OSHA, and issued a citation every now and then, however hard you work at compliance and safety.  In other words, this is an issue you must grapple with, so long as you remain in business, but will never fully resolve.

Your primary objective, then, as the owner of a construction business, is to make your reasonable best efforts to get every one of your employees to comply with OSHA regulations applicable to your trade, and other safety laws and regulations.  If you do that, there’s a strong likelihood that the number of injuries among your employees, and the number of OSHA citations you receive, will be as low as you can hope for them to be.

And, while, of course, there are costs involved, citations can feel like a nuisance and OSHA, like every government agency I’m acquainted with, is occasionally guilty of arbitrary behavior, OSHA shares the credit for very substantial reductions in workplace mayhem over its 43-year history.  In the bad old days, prior to the enactment of the OSH Act, nationwide more than 14,000 American workers died from workplace injuries annually, nearly 2.5 million were disabled, new cases of occupational diseases were estimated at about 300,000 a year, and ten times more  man-days were lost to job disabilities than to strikes.

In recent years — employment nationwide having almost doubled since 1970 — fatalities have dropped into the low 4000s annually, and injury rates have been reduced on the order of two-thirds.

While not grounds for complacency, these results are also to the credit of employers — who, for the most part, have made appreciable efforts to comply with OSHA, train their workers, and operate their businesses safely.

Studies show that, overall, larger construction employers have better safety results than smaller ones, GCs do better than trade contractors, and union shops are safer than non-union shops.  Such results seem only reasonable, as GCs, by law, have greater responsibility for site safety, and larger companies are more likely to have full-time safety personnel, and greater resources to devote to health and safety concerns.

If yours is a smaller company, or one lacking dedicated safety employees, there are things you can do — things you need to do — to compensate, and to fight the good fight against safety hazards.  One thing small companies are doing well, studies show, is that they typically achieve a high degree of participation among employees in safety efforts.

Whatever the size of your company, you need to approach safety both from the bottom up, and the top down.

“From the bottom up” means that every field employee should be actively encouraged to share responsibility for their own and others’ safety on the job, to discourage one another from violating safety policies, and to report perceived dangers to their supervisors

“From the top down” means that management, including senior management, must exercise active leadership in this area.

From time to time, in representing clients concerning OSHA and other safety issues, we have detected a “disconnect” between what company management tells us they want from their field supervisors in stressing safety rules, and what the supervisors think management wants.

I recall, in particular, one meeting in the wake of an occurrence in which a worker had neglected to fasten his lanyard, and suffered grave injuries in a fall.  Everyone was shaken up by this accident, and management was more concerned with ensuring it not be repeated, than they were with possible repercussions from the accident itself.

In a meeting at which both management and the company’s field supervisors were present, the supervisors piously stated that they knew company policy required everyone to tie off 100% of the time when working on elevated surfaces, and that they strictly enforced that policy.

Later that same day, however, when the bosses were not in the room, one of the same supervisors confided that the policy was spottily enforced, except where activities were going on close to the edge of an elevated surface, and that both the supervisors and the rank-and-file believed that “strict enforcement” was something to be spoken of mostly when OSHA inspectors were present.  What they believed management really wanted was on-time performance, with safety concerns taking a “back seat,” anytime the two might be in conflict.

To avoid that kind of disconnect, ranking management personnel need to be at least somewhat “hands on” about employee safety, even if you don’t have the luxury of a full-time safety director.  You need to meet with field supervisors from time to time, and to assure them that the company’s commitment to safety is genuine.  When significant injuries occur, you need to take an interest, not just in supporting the injured employee and his or her family, but in making sure that steps are taken to determine how and why the accident occurred, where responsibility lies, and what needs to be done to minimize the likelihood of a recurrence.

Safety issues should also be a frequent element of your communications with your field supervisors, both general and job-specific.  While the OSH Act imposes considerable training responsibilities on employers to instruct the rank-and-file in all applicable OSHA standards, as a practical matter avoiding deaths and serious injuries necessitates considerable reliance on your field supervisors to know, and to enforce, the most critical standards which correspond to the largest numbers of fatalities and serious injuries on construction sites.  Those are:  fall hazards, excavation cave-ins, struck-by injuries, and electrocutions.

Quite simply, there should never arise a doubt in any of your supervisors’ minds, when they observe a worker who is not tied off, or who is entering an unshored trench to work even “for just a few minutes,” that such conduct is unacceptable to the people who own the company.  Poor safety practices are not just wrong, they’re bad for business, too.

Smaller companies that enjoy good safety records accomplish that by leadership, and by striving to involve every employee in identifying and abating hazards, and in making sure that the rules (especially those concerning the primary hazards relevant to your trade) are known, and obeyed pretty much all of the time.  If you’re one of the people in charge of the company, you have a critical role to play.

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