You have probably heard the term “competent person” used in connection with accident avoidance and OSHA compliance. Having employees who are fully qualified as “competent persons” should be a key part of your company’s safety and compliance program.
One reason for this is that failure to provide a “competent person” is one of the most frequently cited OSHA violations. Another is that, in terms both of legal compliance and avoiding jobsite accidents, it must not be assumed that experience and common sense equal “competence.” Thus, it’s critical to know the definition and qualifications of the “competent person.”
No less than eighteen sub-parts of 29 C.F.R. § 1926 (OSHA’s construction standards) and six subparts of the § 1910 general industry standards, require a “competent person.” Overall, in the § 1926 construction standards, there are more than 120 references to a “competent person.” The needs of a particular employer, of course, in providing “competent persons” will vary according to the trade and the exact activities carried on by that employer.
As an example, if your company supplies concrete products, you need to review, and may be required to comply with, “competent person” requirements under the following rubrics:
The foregoing checklist shows that any construction job may — and most large jobs will — demand not merely a safety director, but several “competent persons,” each having specialized knowledge concerning hazards associated with particular conditions and activities at the site.
Management is well-advised, therefore, to consider the actual qualifications required for “competent persons” against every relevant standard. However, while the incremental knowledge required of the truly-qualified “competent person” can literally be a matter of life and death, in most areas that increment can be acquired with a few days (or even hours) of specialized training.
What, then, is a “competent person”?
The basic definition appears in 29 C.F.R. § 1926.32(f): A “competent person means one who is capable of identifying existing and predictable hazards in the surroundings and working conditions which are unsanitary, hazardous or dangerous to employees, and who has the authorization to take prompt corrective measures to eliminate them.”
The definition has two main parts: (1) the ability to identify existing and predictable unsafe conditions; and (2) the authority to take prompt corrective measures.
Note two potential problems with the definition: (1) it fails to describe (or even require) formal instruction, as will establish “competence;” and (2) it mentions “authorization” to take corrective action, without expressly imposing a duty on the competent person to actually take the action.
Some studies have shown that, in many construction contexts, persons designated as “competent” often lack formal training in the relevant standards. Not surprisingly, safety experts find a correlation between such lack of formal training, and jobsite conditions that do not fully comply with OSHA requirements.
The “competent person’s” true authority is where the rubber meets the road regarding management’s support for employee safety. It’s problematic to designate an employee as a “competent person,” if there’s an understanding (express or implied) that stopping work, or blowing the whistle on a dangerous condition, will subject the “competent person” to browbeating (or reprisals).
It’s neither fair, nor effectively self-protective, for an employer to hang its “competent person” out to dry, once the employer is cited by OSHA. If denied proper training and/or genuine authority, the “competent person” whose legs have been cut out by management will probably be unable — and none too eager — to protect his employer, if exposed to harsh cross-examination, and public humiliation, following a fatality or serious injury.
And, while the risk to the employee is appreciable, the employer’s risks are potentially much greater, and may include fines, settlements, or even criminal liability (and, or course, legal fees).
Accordingly, the advisability of formal training should be inferred as an extension of the requirements of 29 C.F.R. § 1926.21(b)(2), which provides: “The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”
An abundance of resources is available to equip “competent persons” with the knowledge they need to effectively carry out their responsibilities. Your employees’ union, if there is one, can be a resource. In all events, it’s relatively easy to find moderately-priced training, in most pertinent areas, by searching online.
A review of the topics taught in one course for “competent persons” on the trenching and excavation standards should show that, while “competency” usually will require some expertise beyond that gained by jobsite experience, it’s seldom “rocket science.” Here’s the syllabus for a half-day course:
The dangers of failing to give the “competent person” training to acquire the modest incremental knowledge needed to effectively discharge his duties are shown by the recent case of Secretary v. EMCON/OWT, Inc.
That case involved a crew of men working in an excavation at a Florida landfill.
Landfills are laid out in cells lined with high density polyethylene. As cells fill up and the garbage in the cell deteriorates, methane gas is produced. The methane must be collected by wells located around the landfill, and vacuumed into gas headers to a central location, where it is burned off.
Perforated clean-out lines are installed beneath layers of gravel and sand in each cell prior to garbage being deposited. Leachate (rainwater falling onto the accumulating garbage) percolates through the sand and gravel into the perforated collecting lines, which drain it to the landfill’s sump area.
The 5-man work crew at the landfill had excavated a trench, exposing the leachate clean-out pipe that they needed to cut into. One worker, Seaborn, tried to cut the pipe, using a gasoline-powered chainsaw. The pipe released an odorous gas, and the chainsaw stopped working. Seaborn left the trench, and went to retrieve an electric saw to use instead.
Returning, Seaborn noted a foul odor, and exited the trench. The crew foreman, Diloreti, entered the trench to make the cut, but likewise hesitated because of the odor. Warne, a third crew member, expressing impatience with his co-workers, entered the trench, bent over the pipe to make the cut, but stood up and said, “Whew.” A fourth worker, Garno, jumped into the trench, bent over the pipe, stood up, said “Something is not right,” and passed out. Seaborn went to assist Garno. Diloreti tried to assist Warne, but passed out himself. All four crew members were removed to hospital, but Warne died en route, or shortly after arrival.
The employer was cited for three violations, one of which was a failure to inspect the area by a “competent person” following a “hazard-increasing occurrence,” 29 C.F.R. 1926.651(k)(1).
Meier, the supervisor (and only crew member not present when the workers were overcome) had inspected the excavation on the morning of the occurrence. The ALJ rejected the employer’s depictions of Meier as its “competent person,” and this required inspection as constituting compliance with the standard.
In addition to the required daily inspection, the ALJ found, an additional inspection must be made “after every rainstorm or other hazard increasing occurrence.” The Secretary considered Diloreti, the foreman, as the true “competent person,” and asserted that cutting into the leachate pipe was a “hazard-increasing occurrence.”
The ALJ agreed with the Secretary that three incidents, over a 20-minute span, gave notice of likely employee exposure: (1) the stoppage of the gas-powered chainsaw, indicating a shortage of oxygen; (2) a strong, unpleasant odor arising from the pipe; and (3) the immediate physical discomfort experienced by the crew members upon entering the trench to make the second cut.
Faced with these unusual incidents, the ALJ found, Diloreti (as the acting foreman) ought to have tested the atmosphere with a gas meter, available in the crew’s truck. He did not do so.
Diloreti had worked for the employer for 10-1/2 years, and had risen from laborer to technician to operator to foreman. He had never received “competent person” training, and only vaguely understood what the term meant. Although plainly conscientious and stricken by the death of his co-worker, Diloreti testified that it had not occurred to him to test the excavation with a gas meter, after the crew cut the pipe.
The ALJ held that Diloreti was unqualified to act as a “competent person;” that he had failed to identify a recognizable hazard; that an inspection required after a hazard-increasing occurrence was not made; that Diloreti’s knowledge of the foul smell, and his crew members’ reactions, would be imputed to the employer, and the employer had failed to be reasonably diligent in training its employees. Accordingly, a “serious” violation was found, and a significant penalty imposed.
This occurrence would probably have been avoided and a life saved, had Diloreti had the modest incremental knowledge that would have led him to retrieve a gas meter, and test the atmosphere in the trench.
The main lessons from the EMCON/OWT case are that experience must not be assumed to equal “competence,” and modest investments in “competent person” training afford employers serious “bang for the buck,” and a sharp reduction in the likelihood of avoidable, and preventable, employee injury.
Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. 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.