By: Thomas H. Welby Published: May 2011

When Are Safety Measures "Infeasible"?

Many of us recall the popular poster of several decades ago which spoofed OSHA regulations by depicting a OSHA-Compliant Cowboy. The horse and rider were so encumbered by safety devices (harness and tether, goggles and gas mask, hardhat, safety net, backup alarm, etc.!), that the cowpoke was no longer able to feasibly herd cattle.

In the era immediately following the enactment of the Occupational Safety and Health Act in 1970, OSHA regulations were viewed by many in the construction industry as burdensome, expensive and unproductive. Today, most prudent and successful contractors recognize sound safety policy as an indispensable facet of overall business planning. Whether through a top-down contractual imposition of safety requirements, compliance efforts by OSHA, or simple concern for the health and safety of their employees, construction executives are going beyond the basics to implement safety programs that will give them a competitive edge going into the future.

Last month, we examined the elements of the Unanticipated Employee Misconduct Defense to an OSHA citation as a vehicle for exploring ways to improve existing safety plans to incorporate new inspection routines and paperwork systems. This would allow employers to avail themselves of the defense. Such a safety program would most likely lead to improved companywide safety and OSHA compliance In a similar way, an examination of judicial responses to other defenses, such as "greater hazard", "impossibility" and "infeasibility" can help contractors to shape their own safety policies and procedures.

In a recent decision in a case involving the death of an employee of a demolition contractor, the Occupational Safety Health Review Commission articulated the standards established to evaluate an employer's defense of infeasibility, stating: To carry its burden and prove its defense of infeasibility, the employer must prove:

(1) the means of compliance prescribed by the applicable standard would have been infeasible under the circumstances in that (a) its implementation would have been technologically or economically infeasible or (b) necessary work operations would be technologically or economically infeasible after its implementation, and (2) either (a) an alternative method of protection was used, or (b) there was no feasible alternative means of protection.

Secretary of Labor v. G.A. West & Company, Inc. 2004 WL 1057182 (To prevail, the employer must prove one of four elements, and then prove one of two additional elements.)

Several Federal Circuit Courts of Appeals have held that to be successful, an economic feasibility argument must demonstrate both 1.) it is extremely costly for the employer to comply with the standard and 2.) that the employer cannot absorb the cost and remain in business. Furthermore, where technological infeasibility is argued, the employer is still obligated to comply to the greatest extent possible even if it cannot comply completely. So, if the safety standard is technologically infeasible as written, the employer is not excused from employing any safety measures whatsoever.

The U.S. Court of Appeals for the D.C. Circuit recently decided a case in which the Occupational Safety and Health Review Commission upheld the findings of the Administrative Law Judge regarding a series of serious and willful citations issued to a precast concrete subcontractor. A.J. McNulty & Co. was subcontractor to Whiting-Turner Contracting Co., for the construction of a precast concrete parking structure in White Plains, New York. The floors of the parking garage were constructed out of precast "double-T's", weighing as much as 40 tons each. Among the several alleged violations, McNulty was cited for failing to guard floor openings by the use of railings, on floors that were in the process of being constructed. (It is noteworthy that the work was commenced in 1993, the citations were issued in 1994 and the final judicial determination was not completed until almost a decade later.) McNaulty argued that it was technologically infeasible to install guardrails around floor openings on a floor under construction. In a lengthy discussion, the Court noted that although the infeasibility defense is an affirmative defense to a charge of violating an OSHA standard, an employer mounting such a defense must show not only the infeasibility of compliance, but also that it either used alternate means of protection or that such means were infeasible. Although McNulty claimed that bolted-stanchion guardrails would have interfered with the installation of the precast concrete members, OSHA's Compliance Officer testified that free-standing guardrails could have been used. Therefore, the Court ruled that McNulty had not satisfied all of the requirements of the infeasibility defense. (A.J. McNulty & Co. v. Secretary of Labor, 283 F.3d 328, 2002)

In 2000, the OSHRC did find that a general contractor successfully demonstrated an infeasibility defense to a citation alleging failure of the contractor to install handrails, either temporary or permanent, on a stairway used by its employees. (Secretary of Labor v. Summit Contractors, Inc.) The Compliance Officer observed the contractor's employees moving equipment up a staircase with no handrails. OSHA argued that had the permanent hand railing been installed first, there would have been one inch of clearance for passage of the equipment. The Commission agreed with the contractor that it was infeasible to move the equipment with such little clearance. OSHA countered that temporary railings could have been fashioned to afford greater clearance to the contractor. The Commission, however, agreed with the contractor that temporary handrails would be of little use to employees using both hands to move equipment up the staircase. Accordingly, the Commission dismissed the citations. Over the past decade or so, the Commission and various Appellate Courts have considered many cases in which the contractor employed the infeasibility defense, involving trenching support systems, masonry reconstruction, swinging crane counterweights, structural concrete building systems, etc. In the majority of these cases, the defense failed.

Some OSHA safety standards contain exceptions to their own applicability. For example, the fall protection standard in Section 1926.451 exempts its application where employees are engaged in "overhand bricklaying", defined as the process of laying bricks in masonry units such that the surface of the wall could be joined is on the opposite side of the wall from the mason requiring the mason to lean over the wall to complete the work. In 2002, the Commission considered a case wherein this very exemption was claimed by the contractor as a defense. Nevertheless, the Commission upheld the alleged violations, noting that a temporary opening for material loading to the interior scaffold was not covered by the exception and exposed the employees to a falling hazard.

The bottom line is that although there are many legal defenses to OSHA citations, it is extremely difficult to overcome the citations based on these defenses when they are considered for the first time only after the issuance of the citations. A pro-active safety policy would dictate that when the contractor recognizes that compliance with a safety standard would be difficult, inconvenient or expensive, that it affirmatively seek a variance from OSHA, or exhaustively investigate every available alternate means of providing worker safety under the circumstances.

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