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Companies Should Maintain Safety Programs and Work Rules that are Adequately Communicated and Enforced to Prevent Fall Hazards

22 June 2022

Costas Cyprus

Secretary of Labor v. Miller Insulation is an instructive case showing the need for safety programs that include proper training, guidance and communication for fall protection. This matter arose from an accident and tragic death of an employee of Miller Insulation, on April 19, 2019, in North Dakota, who fell from the edge of a mezzanine floor where the wooden floor met a drop ceiling with a nine-foot height differential.

Miller provides insulation services with approximately 600 employees. Here, Miller was to repair insulation on piping and valves and replace stained ceiling tiles at a school. Approximately, a month prior to the accident, Miller’s superintendent conducted a walk-through of the worksite with the superintendent of the general contractor. They both reviewed the punch list of items to be completed and took photographs. During the walk-through they climbed a ladder to enter a mechanical room on a mezzanine floor, above. The mezzanine had wood flooring that did not extend all the way to the walls at each end of the floor. Between the end of the wood floor and walls were thin tiles placed on metal grid, which served as drop ceiling for the hallway below. The superintendents spent about five minutes and did not identify a clear hazard, but Miller’s superintendent requested that the overall area have better illumination.

On April 19, 2019, Miller’s superintendent met with Miller employee, Mr. Andrade, and two workers to discuss the repairs and reviewed the punch list items and photographs. The superintendent could not go the site that day but rather instructed Mr. Andrade to meet with the GC’s superintendent to also go over the work and two look after the two employees. They arrived at the site, Mr. Adrade met and discussed the work with the GC’s superintendent and then directed the two employees to only complete the repair work depicted in the pictures. They were not to look outside this original scope and were to call a supervisor for permission to conduct additional work. After commencement of their work on the mezzanine, Mr. Andrade heard one employee yelling that the other employee had fallen and was injured. This employee would ultimately be taken to the hospital and would unfortunately pass from his injuries. Miller’s subsequent investigation revealed that Mr. Andrade had only partially completed a Job Hazard Assessment (“JHA”) before starting work because he “spaced out on it”. He was subsequently disciplined suspended. Accident reports were completed, photographs were taken, and it was determined that there was adequate lighting on the mezzanine, including in the area, where no work was scheduled to be performed and the deceased employee had been working. OSHA conducted their own investigation and determined that employee had been exposed to fall hazard next to an un-protected edge that had at least a nine-foot height differential from floor to the drop ceiling below and issued a citation for an OSHA violation. The matter was brought before an ALJ for OSHA’s Review Commission.

The cited standard required Miller to ensure that each of its employees on a walking/working surface with an unprotected side or edge, 6 feet or more above a lower level, were protected from falling by use of guardrail systems, safety net systems, or personal fall arrest systems. Here the record was clear that Miller’s repair work fell under OSHA’s definition of “construction work” and that Miller violated the applicable safety standard and that its employees had been exposed to a fall hazard.

However, Miller raised the “employee misconduct” affirmative defense and the ALJ found that the evidence showed that Miller did not have actual or constructive knowledge of the hazardous condition of the victim working from the mezzanine’s un-protected edge without fall protection. Miller’s superintendent nor Mr. Andrade had knowledge of the hazard as neither identified a clear hazard while either observing or working at the site. The fall area had no scheduled work, was 20 feet away, and partially barricaded by pipes from the work he was instructed to complete. Mr. Andrade’s never directed the deceased employee to work in the fall area since no work was required there.

Miller established that it had work rules and policies that communicated fall protection for employees working at or above a height of six feet, including in a safety handbook (providing specific fall protection rules and guidance), an employee handbook, a Work-Place Accident and Injury Reduction Act Program, a Risk and Hazard Assessment Program, Safety Manuals, all distributed to, and available to employees. They also conducted toolbox talks (including 30 in the prior incident year on fall protection alone), employee orientation tests, and provided safety handouts. Miller’s safety program required use of guardrails and barricade warning tape, along with fall protection while working near unprotected sides/edges. Miller adequately communicated its rules on fall protection through orientation videos, its work rules and distributed literature, as well as making its employees receive training through OSHA 10/30 trainings. Here, the record showed that both the deceased employee and Mr. Andrade were well aware of the work rules and Mr. Andrade had even provided the deceased employee hands-on training included direction to tie off any time when working six feet above ground away from an edge. Miller took reasonable steps to discover safety violations, employed six safety coordinators who consistently audited jobsites while safety superintendents would also visit jobsites at least once per week. Miller also incentivized employees to identify safety violations under a “good catch program”. Lastly, Miller took reasonable steps to enforce violations to its fall-protection rules that included write-ups and terminations for repeated failures. Here, Mr. Andrade’s failure to fully complete a JHA led to disciplinary action for his failure to follow the work rules and ultimately his termination. The ALJ found that Miller had met its burden of proof regarding the affirmative defense of unpreventable employee misconduct and vacated the OSHA citation.

If you would like more information regarding this topic please contact Costas Cyprus at ccyprus@wbgllp.com or call (914) 607-6445