Howard Mavity is a partner at Fisher & Phillips LLP in the OSHA Atlanta office. He founded and co-chairs the firm’s Workplace Safety and Catastrophe Management Practice Group. Mavity has provided counsel for over 225 occasions of union activity, guided unionized companies and has managed approximately 500 OSHA fatality cases in construction and general industry. Mavity also responds to every type of workplace inquiry, and has handled cases before the EEOC, OFCCP, NLRB and numerous other state and federal agencies. For more information, visit laborlawyers.com.
As the National Labor Relations Board (NLRB)’s radical December 2014 steps have shown, and to loosely quote William Shakespeare, “the Obama administration will not go quietly into the night.” Expect more changes in enforcement efforts even if little completed rulemaking occurs.
Complying with OSHA standards and maintaining an effective safety culture are not always the same thing, but first, revisit the most cited construction standards shown in the sidebar at the end of this article.
Safety Is More than Compliance
Managing construction safety risks requires more than recognizing the most frequently cited OSHA standards or focusing on reducing the Employer Modification Rate (EMR) and Injury and Illness rates. As a starting point, the risk professional should divide his or her efforts into two separate and not always related categories: risk as a direct safety issue and risk as a monetary issue.
Efforts to comply with OSHA standards may not meaningfully affect workplace injuries, and a focus on reducing injuries may still leave the company exposed to OSHA citations for routine compliance items. A risk professional could also add a third category of documentation, because employers may be following OSHA requirements, but they cannot document their actions. In construction, the most direct safety issues include, but are not limited to:
- Walking surfaces and falls from all surfaces, including ladders and scaffolds
- Steer loaders, lifts and independent dump truck drivers
- Steel erection
- Struck by construction equipment, especially in site work (not just in highway work zones)
- Electrocution, especially involving overhead power lines
- Inappropriate use of lifting equipment, including cranes and forklifts
Outside of OSHA penalties, monetary issues include:
- All costs of injuries, including soft tissue and ergonomic related problems
- Multi-employer contract liabilities
- Civil exposure to injured members of the public or another contractor’s employees
- Harm to reputation and bidding ability after a highly publicized incident, “willful” or “repeat” items, or enrollment in OSHA’s Severe Violators Enforcement Program (SVEP)
Increasingly, even a modest number of injuries or a single serious OSHA citation may be enough to cost a contractor a bid worth millions.
Build a Working Safety Process
Every employer has a safety culture, whether they realize it or not. Employers should separately survey managers and employees about safety and compare the answers. Management is often shocked to see the difference between employee and management perception of safety. A jobsite safety program must be tackled with a universal team. Additionally, a safety programs are ones that must be continually updated and developed. It isn’t just new employees that need to be exposed to the company’s safety expectations on a jobsite. When an effective safety culture is absent, even experienced employees will continue to cut corners and make bad decisions. An employer has to make a specific business plan to develop an effective safety culture. However, the proper culture will not simply occur. The second step is gain top leadership support.
Once top leadership is on board, the construction employer has to deal with the fact that frontline supervision is promoted from within based upon their skills, and the employer has not adequately trained those supervisors to manage employees and maintain a safety-driven culture.
The employer then has to determine what actions are predictive of safe work habits. Instead of driving a safety program by injury and illness data or the even less reliable EMR, determine which policies, procedures and attitudes result in safe work practices. While solid research and practical materials on leading indicators are available, most construction employers find that leading indicators include some of the following examples.
- Documented consistent site and job-specific training
- Supervisory involvement in safety efforts
- Employee engagement in activities such as Job Safety Analysis and safety inspections
- Maintain effective discipline for unsafe work practices
Reduce Risks and OSHA Citations
Now, expand your focus to other aspects of the construction process. Employers do not consistently involve their safety professionals in planning and bidding for a project, nor do they always ensure that an adequate number of safety professionals are budgeted.
Ensure that an effective Site Safety Plan is designed in coordination with the work sequence. This document should not be a boilerplate form. It should serve as the overview of how to keep that job safe. Then, develop specific tasks and a Job Safety Analysis (JSA). This brief analysis of the hazards and ways to prevent harm should be the basic toolbox for all safety meetings.
While many contractors do a superb job in the beginning, less thought is put into punch list completion. Many injuries occur at this stage. Similarly, the contractor should consider the non-routine challenges posed by the site, weather, quality of the local workforce and the uniqueness of the architect and structural engineer’s designs. Many fall protection issues arise because of non-routine settings. Experienced employees have a tendency to do things the way they have always done them.
Step Up Subcontractor Management
Contractor management must move beyond focusing on avoiding “controlling employer” OSHA citations and focus on how to prevent errors by first and second-tier subcontractors. OSHA and the U.S. Department of Labor’s tough new focus on temporary employees and increased joint liability is going to affect how OSHA analyzes multiemployer sites, as well as the use of temporary employees from a provider. General contractors and others responsible for the overall job may have to choose the lesser of two evils of involving their own safety professionals or third-party groups more in subcontractor safety efforts.
Train Isolated Workers
Jobs where isolated employees or crews are working without immediate supervision present other challenges. Experienced employees may cut corners and injure themselves by electrocution or falls when they work unsupervised. Contractors must remind employees working alone that they must continually conduct their own basic job safety analysis.
Attack the Causes of Unsafe Behavior
Contractors must expand their concept of root-cause analysis of unsafe behavior, accidents and workplace injuries. There is a correlation between fatigue and employees exercising poor judgment. While many employers have focused on distracted driving, they have not considered the numerous distractions present on a fixed site. Technology can cause distractions, but other factors may affect an employee’s judgment and reflexes such as reporting to work after an all-night argument with a spouse. Depression can contribute to performance issues and related workplace injuries. Health-related issues can easily go unnoticed by superintendents, but can drastically affect an employee’s performance while on the jobsite, in turn affecting jobsite safety. Contractors must also consider the problems posed by increasingly unhealthy new workers and an aging workforce. This concern has contributed to employers’ renewed interest in devising Fitness for Duty programs. However, any such program must be carefully devised and must not permit supervisors to make knee-jerk decisions about whether a new or returning employee can perform the essential functions of the job with or without reasonable accommodations made.
OSHA Most Commonly Cited Construction Standards
- Duty to have fall protection
- Respiratory protection
- Fall protection systems criteria and practices
- Aerial lifts
- Wiring methods, components and equipment for general use
- Electrical general requirements
- Accident prevention, inspections, training
- Scaffold training requirements
- Hazard communication
- Wiring design and protection
- Fall protection
- Eye and face protection
- General requirements
- Scaffolding training requirements
- Abatement verification
- Head protection
- Liquefied petroleum gas (LP-Gas)
- Concrete and masonry
- Demolition preparatory operations
- Permit-required confined spaces