By: Thomas H. Welby Published: January 2017

New OSHA Guide to Building a Safety Program "From the Ground Up"

The nature of the construction industry is such that, if you run a construction company, you are — for better, for worse, and until death do you part — in a partnership with OSHA.

From year to year, construction accidents account for more than one-sixth of all workplace fatalities.  (In 2014, according to the Bureau of Labor Statistics, the figure was 18.65%).  It’s good news that, overall, work-related fatalities have dropped from about 16,000 in 1951, to fewer than 5,000 today (as the U.S. population has doubled, and the number of job-holders has more than doubled).  For the last dozen years or so, the incidence of workplace injuries and deaths has tracked steadily downward (excepting only one year, 2012).  For these gains in workplace safety, the OSH Act and, yes, even those pesky inspectors, and great strides made in management awareness, can rightly claim some of the credit.

However, in truth, the remarkable reductions in workplace injuries and deaths are largely a function of reductions in the percentage of the workforce in such high-risk occupations as farming, mining, and logging; the outsourcing of much manufacturing; and the fact that, today, roughly 83% of American workers are performing services, rather than producing goods.

Construction work has been, and must continue to be, made safer.  However, putting up buildings and tearing them down can’t be made wholly injury-free and, even with the advent of modular construction techniques, there are constraints on how much construction work can be outsourced overseas.  Thus, as fewer and fewer Americans are engaged in inherently dangerous jobs other than construction, even with the progress we have made, and our best efforts going forward, the injury and illness profile of the construction industry is likely to become more (and not less) conspicuous, as a contributor to workplace mayhem.  As such, it will continue as a primary target for OSHA enforcement.

So, if you hope to stay in business as a construction contractor or subcontractor, you need to get used to the idea of being, so to speak, “married” to OSHA.  Like most “spouses,” OSHA will, from time to time, scrutinize your behavior, and point out things you have done wrong.  However, while even the most rewarding moments in your relationship with OSHA will ever rival the birth of your kids, or a vacation in Paris with your real-life mate, OSHA is not entirely about finding fault with your health and safety performance.

In addition to conducting inspections and handing out citations, OSHA engages in a number of programs intended to educate employers, and help them avoid not only citations, but injuries and illnesses to their workers.  It’s important, certainly, to keep your OSHA citations to a minimum, notably because too many citations can hurt your ability to get work (especially on public projects) or even put you out of business.

However, while our firm counsels clients in negotiating with OSHA and contesting citations that we think were wrongly issued, Safety Goal #1 isn’t to never get a citation, or to succeed in getting your current OSHA citation vacated, or downgraded.  Rather, it’s getting every employee home safe every night, with serious injuries few and far between.

To that end, OSHA recently came out with a helpful tool in building, from the ground up, a safety program for a construction-industry business.  This guide (released in October 2016, and available for free online on the OSHA website, www.osha.gov) is entitled “Recommended Practices for Safety & Health Programs in Construction,” and is useful also in evaluating and improving an existing safety program.

New York poses special challenges to construction employers.  One of them is that OSHA mandates that your workers be trained in a language they can understand.  English and Spanish covers roughly three-quarters of the New York City population, but the remaining 25%, more or less, when at home speak Chinese (in one of its many variants), Haitian Creole, French, Russian, Yiddish, Hebrew, one or another of the Indic languages (Hindi, Punjabi, Gujarati, etc.), Arabic, and literally hundreds of other tongues.  Getting safety manuals translated into Navajo, or classroom safety training in Somali, can be a daunting task.  (This issue isn’t unique to New York City; the Buffalo public schools now offer instruction in 85 different languages).

An imperfect safety program is better than none at all, and, frankly, not a few companies scrape by, with little more than (1) some demonstration by management that safety is important; (2) supervisors who are well-trained, and “no nonsense” in enforcing safety rules; and (3) harping repeatedly on the 10-15 hazards that are primary in construction, or peculiar to your trade.  Think: falls from heights, electrical hazards, “struck-by” injuries (vehicles, falling objects), getting caught in-between objects and materials, fires and explosions, heat stroke and over-exertion, accidents while using machinery, slips, trips and falls, and trench collapses.  Is the foregoing enough to satisfy OSHA requirements?  No, certainly, but if you did nothing more, you might avoid fatalities.

Even if your outfit is too small to support a dedicated safety team, and professionally-written, multi-lingual and color-illustrated safety manuals, you can and should develop a safety program that will get the job done, thereby minimizing both injuries and OSHA citations.

Especially if your company is a start-up, or is growing from mom-and-pop status to a more substantial entity, the OSHA guide is a fine place to start in developing or upgrading your safety program.

OSHA claims that one study, of small employers in Ohio, found that workers’ comp claims (and the cost per claim, average work time lost, and number of very large claims) plummeted where companies adopted programs like those described in its “Recommended Practices.”

OSHA’s “Recommended Practices” aren’t a new set of standards that must be followed, and indeed they stress that they are a framework only, and not a comprehensive, “one size fits all” system.

However, just by reviewing the “Nine Easy Things to Get Your Program Started” (several of which have been stressed in past articles in this series) you will get an idea of how helpful the “Practices” can be in formulating your program.  The “Nine Easy Things” are as follows:

  1. Always set safety and health as the top priority.
  2. Lead by example.
  3. Implement a reporting system (and ensure that workers do not fear retaliation).
  4. Provide training.
  5. Conduct your own inspections (especially of new activities, new materials, or new equipment).
  6. Collect hazard control ideas.  Get your employees involved.
  7. Implement hazard controls.
  8. Address emergencies, and plan your response to future emergencies.  (Example:  a few months back, we discussed that while everyone knows the importance of fall protection, many are not aware that it’s critical to have a plan for the prompt rescue of workers dangling from the end of their lanyard, following a fall).
  9. Make improvements.  With the participation of your employees, you should regularly review your safety program, with an eye to making it better.

OSHA’s “Recommended Practices” is an easy read, 40 pages in length.  If your company is a start-up, it’s a great place to start in developing a safety program, especially if you don’t have a huge budget to have professionals provide you with a pre-packaged one.

Even if you’re running a long-established company, “Recommended Practices” will likely highlight one or more areas in which your safety efforts  could be better.  As such (and because it’s succinct, easily accessible, and free) it’s well deserving of a download.

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