By: Geoffrey S. Pope Published: December 2020

Getting Started: First Principles in Developing a Safety Program for a Small or Startup Construction Employer

A remarkable feature of the U.S. construction industry is the prevalence of companies that may have a lone principal who estimates the jobs, oversees a few workers out of the local hiring hall, operates a backhoe, and runs the business from a spare room at home.  While most such companies work as subcontractors to larger ones, even tiny shops often carry out remarkably expansive work.

This month’s installment is intended to provide some orientation to any who might be starting up a construction company, and as yet have no formal safety program. and perhaps very little money for expensive consultants, or a safety director.

While our law firm has a handful of clients that have been in business for years without having undergone an OSHA inspection, odds are that you will be seeing an “Occupational Safety & Health Officer” now and then  While being in construction is, of itself, deemed sufficient to subject you to inspection, other leading causes for OSHA inspections are fatalities or serious injuries or illnesses (which you are required to report to OSHA), employee complaints, tips from your competitors, and ostensibly chance encounters (as where a Compliance Officer, driving by your jobsite, detects a violation).

Although the monetary penalties for any but “Repeat” or “Willful” violations are generally modest, and nearly all construction employers are eventually cited for one or more violations, avoiding OSHA citations — while important — is your #2 safety priority, #1 being avoiding fatalities and serious injuries and illnesses on your jobs.

While OSHA mandates safety training, and its importance can hardly be over-stated, realistically efforts to immerse all of your workers in all of the standards are unlikely to be totally successful.  While, technically, employees are required to receive training, in a language that they understand, in all of the safety and health standards that apply to their employment, in addition to the breadth of the material, more than 800 languages are spoken just in New York City (and dozens of them are the first languages of significant numbers of construction workers who are not proficient in English).  So far as I’m aware, Spanish is the only language (other than in English) in which substantial resources for construction safety training are on offer.  Few if any construction companies employ, or have affordable access to, a multi-lingual cadre of trainers, whose skills embrace not only language fluency, but a sufficient grasp of construction vocabulary.

Where to begin.  You will probably want to acquire a copy of 29 C.F.R. 1926 (OSHA’s construction standards) (available online for free, with paper copies running about $50).  Use that, and your experience, to develop a basic list of work rules, concentrating on the “Fatal Four,” and other hazards of particular relevance to your trade.  While a professionally-prepared, comprehensive company safety manual should be acquired at the earliest opportunity, your review of the standards should produce a list, perhaps 2-4 pages long, of the most important safety rules.  You can provide this list (competently translated as necessary) to new hires, and keep in your files a copy, signed by each of them, acknowledging that they have received, read, and understood the rules.  (Important:  be sure that this list includes, in boldface, a disclaimer that the list of rules being given at the time of hire is not all-inclusive)

The aforementioned “Fatal Four” account for nearly 60% of construction fatalities, and include falls, struck-by injuries, caught in/between injuries (including trench cave-ins) and electrocutions.

Here are some more suggested “Do’s and Don’ts” for developing your fledgling construction safety program.

Lead from the top.  If field supervisors and the rank-and-file are convinced that ownership and management place a high value on employee safety, injuries and violations will be less likely to occur. Senior management should take some role in training, and in case of a serious occurrence, should be heard from, in person, by the rank-and-file.

Invest in field supervisors who know, and enforce, OSHA’s safety rules.  The construction workforce, union and non-union, has high turnover, and includes a lot of young, risk-taking males.  It also includes many with limited education and proficiency in English, or who will be less than attentive listeners at daylong or half-day safety seminars.

To the maximum extent possible, therefore, you need to hire and retain field supervisors well-trained in the standards, and who will not look the other way, if someone isn’t tied off, or enters an unshored trench.  In OSHA’s eyes, safety rules not enforced are meaningless. 

Don’t assume that hiring workers with experience or “OSHA 10” cards, sufficiently addresses the problem.  While, increasingly, OSHA 10-hour training is mandated for all field employees, not everything can be covered in 10 hours, and the instruction is often poorly understood.  I once had an OSHA case, in which an experienced, well-trained union ironworker, in his 40s, died in a fall from a bridge, because he neglected to affix his lanyard to a convenient anchor point, while working with a “helldog” 90 feet above grade.

Keep OSHA’s “multi-employer rule” in mind. Remember that, on a multi-employer jobsite, the “creating, controlling, correcting and exposing” employers are all subject to being cited for OSHA violations.  (The “correcting” employer is usually one responsible to install or maintain particular items of safety equipment, or whose role on the project is specifically to prevent or correct safety hazards).  This policy needs to be considered, and your employees given sufficient training regarding hazards commonly created by trades with whom they may work in close proximity.

Engage with other contractors on your projects.  GCs and CMs generally have greater resources than subs do with respect to safety.  Foster cooperation among all of the construction employers on your jobs (and discreetly call out any hazards or deficiencies as you may perceive).

While your company is growing, take advantage of low-cost and no-cost resources.  OSHA’s website regularly posts information concerning construction safety, and your local office will assist you with technical issues and special programs.  At low cost, you can purchase (among many other items) posters, signs, and materials for “toolbox talks” on diverse subjects.  Trade groups and unions often sponsor seminars, and a huge amount of construction safety information can readily be found online.

Document your efforts.  If you conduct a toolbox talk or seminar, keep an outline of the subjects covered, and a sign-in sheet identifying participants.  If an employee is disciplined for a safety infraction, keep on file a written record of the date and other particulars, signed by a supervisor and the employee,  One day, such records may become critical in OSH Review Commission or other proceedings.

Persistence (and repetition) are the keys. Brief presentations focused on critical issues are generally more effective than long, infrequent seminars that cover multiple topics.  Any incident, near-miss, or OSHA violation must be seen by you as a learning experience, and an incentive to improve your performance.

Safety is critical to employee morale, profitability, and even your business’s survival in a challenging time.  Even if you must “start small” in terms of budgeting, good results are not only possible, but essential to your company’s growth and its success.

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