It's a concern for the tower industry
OSHA says it's funded to step up enforcement
of multi-employer worksite policy
September 15, 2009 - OSHA's interim administrator, Jordan Barab, isn't shy about emphasizing that under President Obama's administration, OSHA will be stepping up enforcement.
During a recent speech, he pointed out that OSHA plans to use part of their increased funding to hire 130 more inspectors, 25 more investigators assigned specifically to whistleblower cases and 20 more workers who will help develop safety and health standards.
“I want to be absolutely clear, OSHA is back in the business of standards and enforcement,” said Barab.
Barab's pronouncement came on the heels of the Eighth Circuit restoring to OSHA one of the agency’s strongest enforcement tools in the construction industry, the multi-employer worksite policy.
Where employees of various employers often work in close proximity, such as at a communications tower site, OSHA historically followed a multi-employer worksite policy.
Under that directive, safety and health citations could be issued not only to employers exposing their own employees to safety hazards, but also to employers that created the hazard, employers responsible for correcting the hazard and employers exercising general supervisory authority over the construction worksite.
OSHA’s use of the multi-employer worksite policy was significantly limited, however, by the Occupational Safety and Health Review Commission’s 2007 decision in Secretary of Labor v. Summit Contractors, Inc.
In that administrative decision, the OSHRC held that a controlling employer cannot be cited for a construction-industry-standard violation based on a hazard that it did not create and to which it did not expose its own employees.
Although many general contractors and subcontractors in the communications industry, who also subcontract their work, said they would still ensure that safety on the jobsite would continue to be a communal concern, they privately saw the decision as a welcomed relief of not having to be aligned to their subcontractor's performance.
Decision says tower contractors are no longer off the hook
Earlier this year, however, the U.S. Court of Appeals for the Eighth Circuit reversed the OSHRC’s decision in Summit Contractors. Although the Eighth Circuit’s decision does not have legal effect outside the geographic boundaries of that court’s jurisdiction (Ark., Iowa, Minn., Mo., Nebr., N.D. and S.D.), it is likely to have the practical effect of increasing the number of OSHA citations issued throughout the country.
OSHA, encouraged by the Eighth Circuit’s decision and Barab's quest for greater enforcement, might signal agency investigators to issue citations nationwide to general contractors for subcontractors’ violations in the expectation that appellate courts in other circuits would agree that the broad, traditional approach to “controlling employer” liability is the correct one.
Until litigation over the multi-employer worksite policy is resolved with finality by the Supreme Court, general contractors in the tower industry should guard against “controlling employer” liability in every state in order to avoid OSHA citations and the costly litigation they bring.
It should also raise alarms to every subcontractor in every discipline of a communications project, including 1099 contractors on a job site.
NATE web cast to address liability issues
Troubled about how the reintroduction of the multi-employer worksite policy will affect liability in the tower industry under a new administration, the National Association of Tower Erectors will be presenting a web cast on Wednesday, September 16 at 11:00 a.m. (CT) to address those issues.
To register and listen to the event, click here.
The live web cast to tower owners, contractors, operators and industry enthusiasts is being sponsored by Stainless LLC, and will be led by Mark Lies, NATE’s legal counsel and partner at Seyfarth Shaw LLP, and Duane MacEntee, president and chief operating officer of Stainless LLC.
There will be a Q&A session following NATE's presentation. Answers to audience questions will be posted on the association's web site.
"In today's regulatory environment, it is more critical than ever that companies and managers are aware of their civil and criminal liability. This webinar will identify these liabilities and provide meaningful advice on how to address them," said Lies.
Vertical Realtor could be fined due to Pole Painter's actions
In applying the OSHA policy, a hypothetical example could be:
My Vertical Realtor (MVR) has a general services contract with Tower Management Company (TMC) to manage all facilities-related maintenance, servicing, and new installations of towers and equipment at their communications sites.
MVR needs to have a new monopole installed and painted along with sector mounts and antennas and lines.
TMC, acting as the general, prime, or managing contractor, hires subcontractors to perform the work under a TMC project manager.
TMC hires the following subcontractors to perform the work:
Acme Tower GC to erect the tower;
Acme contracts AAA Electric to install the antennas and lines; and
Pole Painter to provide the obstruction marking required.
Acme erects the tower per OSHA regulations and directives and installs a proper safety climb device. A Pole Painter employee disconnects the safety climb wire in order to paint the pole and then fails to replace it properly. AAA Electric has an employee who falls off the monopole because of the faulty safety climb and suffers disabling injuries.
OSHA investigates and determines that the violation is classified as serious with a fine based upon a number of factors. Prior to this March, OSHA could only cite AAA for the accident since they are the employer of the person who was injured.
Under the reintroduced rules, fines could be levied upon the various
parties with liability under the Multi-employer Workplace Regulations:
• My Vertical Realtor, as the Controlling Employer
• Tower Management Company, as the Correcting Employer
• Pole Painter, as the Creating Employer
• AAA Electric, as the Exposing Employer
These are contractors with general supervisory authority over the work site and with the power to correct safety and health violations or to require others to correct the hazards.
This control is established by contract or by practicing control of the project site. The Controlling Employer must take reasonable care to prevent and detect violations on the project site; however, its responsibility is less than what is required of a subcontractor to protect its own employees.
The Controlling Employer is not normally required to inspect for hazards as frequently as or to have the same expertise or knowledge of the applicable standards as the subcontractor it has hired.
Whereas many Controlling Employers are generally knowledgeable about tower erection or components and accessory installations, and it would be expected that they would be knowledgeable about the requirement for workers to be tied off 100% of the time with the proper PPE, they would likely not be aware of rigging requirements and other more finite safety requirements of an installation.
The Controlling Employer's frequent and regular care responsibilities rely upon the scale of the project; work scope; how much it knows about the safety history and practices of the subcontractors it controls; and how much it knows about the subcontractor's level of expertise.
Individual specialty subcontractors have a higher degree of responsibility to exercise reasonable care to protect their employees than the controlling contractor.
Controlling Employer's Reasonable Care Responsibilities
- Create a site-specific safety program
- Enforce the safety policy for the project site
- Provide general supervision of project activity and safety
- Fulfill budget and schedule requirements
- Exercise authority to correct safety hazards
- Exercise authority to require other specialty employers to correct safety hazards
- Conduct and document frequent and regular inspections of subcontractor site-specific work (frequent and regular inspections and/or safety meetings are established by the controlling contractor's knowledge of the subcontractors' level of experience, expertise, and knowledge of their safety history and practices)
- Conduct and document frequent and regular safety meetings with subcontractors
A subcontractor who causes a hazardous condition that violates an OSHA regulation is categorized as the Creating Employer. This employer is citable even if the employees exposed to the hazard are other subcontractors' employees.
Creating Employer's Reasonable Care Responsibilities
- Frequent and regular inspections and safety meetings (usually daily) and safety meetings (usually weekly) must be conducted by specialty subcontractors on a consistent and regular basis to protect their employees from safety hazards on the project site.
- Provide an effective system to enforce the prompt correction of hazards, both recognized and foreseeable
- If the employer does not have the authority to fix a problem, it must inform the controlling contractor/employer of the hazard and take the appropriate steps to keep all employees away from the hazardous condition until it is fixed.
Subcontractors whose employees are exposed to hazards on the project site are defined as the Exposing Employer. If the exposing employer also created the violation, typically it will be cited as the creating employer. If the violation was created by another employer, the exposing employer will be cited if it neglected to protect its employees. When the exposing employer does not have the authority to correct the hazard, it is citable if it did not take reasonable protective measures for its employees.
The Correcting Employer must exercise reasonable care in preventing and discovering violations and meet its obligations of correcting the hazard.
This is an employer who is engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard.
This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices such as a monopole's safety climb system.
If the Correcting Employer exercised reasonable care in preventing and discovering violations, it is not citable for the monopole's incorrectly installed safety climb since it could not reasonably have known of the violation.
Whether a tower owner or a turfing contractor can be cited as the Controlling Employer, is questionable, say a number of industry professionals who state that these companies have learned to insulate their business.
"Under this scenario, it may be difficult to impose liability on MVR since they are merely an owner, unless they gave some specific directions to TMC as to means and methods of performing the work, and they contracted with TMC to act as the true controlling employer," said Lies.
Lies said that under the hypothetical example the penalties would be limited to $7,000 for one serious citation, but each employer would probably receive multiple citations, such as failure to have a competent person, failure of the competent person to make frequent and regular inspections, failure to provide fall protection, and failure to train in the use of fall protection, which will run up the total penalty amount.
OSHA would likely view the degree of supervision that they are providing on the worksite and decide whether a project manager was directing the work activity, said an industry executive who has worked with OSHA officials over the years.
"They [OSHA] might agree that if the tower owner had a PM on site and he was actively directing the project in regards to safety and installation procedures - and was not acting in the capacity of an observer - the tower owner could be cited. However, they may not want to test the legal waters," he said.
Understanding OSHA’s multi-employer worksite policy can help various employers involved with a project recognize their duties and responsibilities toward worker safety, said MacEntee.
He also noted that a good understanding of the policy can also serve as a roadmap for planning workplace activities in order to prevent injuries and deaths.
"It is important for all project participants to know how the policy relates to their activities and accurately identify what type of employer classification or classifications could be applied by OSHA. The corresponding safety obligations accepted by signing a contract or by an employer’s actions on a jobsite can vary greatly and may dictate whether it is categorized as a creating, controlling, exposing and/or correcting employer," he said.
MacEntee believes it needs to be emphasized that contracts and workplace activities can place companies in one or more of employer category depending on their actions.
"For instance, a general contractor may be considered a Controlling Employer by virtue of its contractual status, but in the field that GC may also specifically correct the unsafe behaviors or unsafe actions of a subcontractor's employee."
"By doing so, the GC may establish itself as a Correcting Employer. Similarly, if a company is the Controlling Employer and requires its employees or a subcontractor’s employees to enter into an area where hazards are present, it may also be categorized as an Exposing Employer and become responsible for either preventing injuries from the exposure to hazards or to make certain the hazards are eliminated," MacEntee said.
Michaels' appointment could result in sweeping changes
President Barack Obama has announced he intends to nominate Professor David Michaels to be the Assistant Secretary of OSHA, and although it is too early to predict Michaels' likely priorities, he has set forward his likely agenda from past speeches and writings.
The interim chair of the Department of Environmental and Occupational Health at the George Washington University School of Public Health in Washington, D.C. has a long history in public health.
During the Clinton Administration, Michaels was Assistant Secretary for Environment Safety and Health at the Department of Energy, where he played a role in overseeing safety and health issues for employees at nuclear weapons facilities.
He has stated that “OSHA enforcement does not appear to be effective in further reducing injury rates.” Although the rate has reportedly dropped, he said most of this is attributable to changes in OSHA recordkeeping rules.
A potential electronic recordkeeping system also fits neatly into OSHA’s current enforcement efforts. OSHA will be releasing a Recordkeeping National Emphasis Program (NEP) next month, which will focus enforcement resources on recordkeeping inspections in certain establishments.
His most scathing rebuke of the agency he will head, if confirmed, came two years ago when he said: “The people at OSHA have no interest in running a regulatory agency. If they ever knew how to issue regulations, they’ve forgotten. The concern about protecting workers has gone out the window.”
In testimony before the Senate Subcommittee on Employment & Workplace Safety in April 2007, Michaels called for better methodologies for reporting workplace accidents, testifying that only one-third of occupational illnesses and injuries are reported by the Bureau of Labor Statistics.
It is possible, though, that some who favor keeping government out of their lives may not be enthralled with one of Michaels' accomplishments when he worked at the Department of Energy. He designed a landmark program for compensating nuclear-weapons workers who developed illnesses after exposure to radiation, beryllium and other toxic materials.
The Energy Employees Occupational Illness Compensation Program has provided more than $4.5 billion to sick workers and their families. Some might suggest that this seems a bit partial to personal injury lawsuits.
According to one OSHA insider, Michaels' big challenge will be reinvigorating an agency that has endured numerous funding cuts and personnel losses in recent years.
"I have no reason to think he won't be good at OSHA. Besides, the staff with whom we've met and worked in the past -- with whom we've developed very good professional relations -- remain on the job. They will provide continuity, and they are familiar with our priorities," said Jim Goldwater, Senior Vice President of Bob Lawrence & Associates, Inc., NATE's lobbying arm in Washington.
"My understanding is that Mr. Michaels has quite a bit of experience with environmental, safety, and health issues. Having someone as assistant administrator with a proven record on worker safety is definitely a good thing," said Goldwater.
NATE's partnership program is near expiration
It is not known how OSHA's new administration will view and support industry partnership programs.
NATE's national OSHA Strategic Partnership has been heralded by OSHA as a successful venture and is currently the lead construction achievement story on the agency's web site.
The three-year partnership expires November 8, and OSHA hasn't inked a new agreement, although NATE is hopeful that they will.
"At this point, we are working diligently with OSHA on renewal of the program. Given the success that the partnership has seen in the past and the recent turnout from NATE members interested in participating in the partnership, we remain hopeful that our relationship with OSHA will continue into the future, to ensure that safety remains top of mind for the industry," said Patrick Howey, Executive Director of the trade association.
A number of NATE members suspect that the retention of senior OSHA staff who have supported the partnership in the past will allow for its continuance.
They believe the delay in signing another agreement is not whether it is a viable and necessary program; they think the wait is a product of the glacial speeds at which bureaucracies operate.
Higher fines and jail terms could be on the horizon
Under the new Democratic regime with majorities in both house of Congress, it is possible that legislators eyeing substantially higher penalties might be successful.
Proposal being discussed under the Protecting America's Workers Act are:
- Upgrade criminal safety violations by employers from misdemeanors to felonies
- Increase criminal penalties for injuries and endangerment instead of just death
- Enhanced penalties, up substantially from the present $70,000 maximum for willful violations
- Change present “vague” definition of an employer to allow prosecution of responsible corporate officers and supervisors, and
- Provide more law enforcement resources to prosecute criminal cases
- Allows workers and their families to hold dangerous employers accountable.
South Carolina erector was one of few prosecuted in 38 years
Since the agency was established in 1971, OSHA has cut workplace fatalities by over 60% during a period when U.S. employment has nearly doubled.
However, OSHA has a poor record of referring cases to the Justice Department during a period when almost a quarter-million workplace-related deaths occurred. The newly invigorated OSHA might be more proactive.
With less than 200 referred for criminal prosecution by OSHA during the past 38 years, Federal prosecutors have declined to pursue almost two-thirds of these cases and less than a dozen have resulted in prison sentences for company officials.
A South Carolina tower erector was one of them, and their two owners were prosecuted and served jail time for covering up information about a fatality, according to OSHA documents.
Theodore Smith and John Dennis, owners of South East Towers of St. Stephens, S.C., were sentenced to three months in prison after OSHA officials said the men tried to cover up the fact that one of their employees was not wearing the proper fall protection equipment while working on the top of a 150-foot monopole in Jacksonville, Fla. when he fell and died in 1995.
OSHA reports state that John Christiansen and a coworker were required to climb to the top of the monopole to retrieve a hoist line and pulley from a sector mount platform.
Although the employees had installed a ladder safety device up the side of the monopole, they did not use it.
OSHA said both men were not wearing safety belts with lanyards attached to lifelines; however, they both were wearing tree trimmer saddle belts with lanyards.
Chistiansen's coworker took the hoist line out of the pulley and handed it to him while he was standing on step bolts
He then snapped the hoist line hook onto a ring on his tree trimmer belt. The coworker looked away to unfasten the pulley, then heard Christiansen cry out and looked back to see him falling.
The OSHA report says Christiansen may have unhooked his lanyard from the step bolt, or may not have been hooked up to begin with, and lost his balance or slipped as he began to descend.
Almost six months following the December 26, 1995 accident, OSHA issued a Serious Violation in the amount of $6,300 under a ladder standard; a $63,000 Willful Violation under a personal protective equipment standard; and another $63,000 Willful Violation for not meeting training requirements.
Smith and Dennis pled guilty in April 1997 and each was sentenced to three months in prison. The two men were also ordered to pay more than $7,300 restitution for Christiansen's funeral.
* * * * * *
The Protecting America’s Workers Act is expected to strengthen and modernize the Occupational Safety and Health Act. It will provide additional tools to ensure that OSHA can fulfill its duty enforce safe and healthy workplaces for all American workers.
Specifically, the Protecting America’s Workers Act:
Protects More Workers
- Expands OSHA coverage to include state and local public employees and federal government workers.
- Expands coverage to millions of other workers inadequately covered such as airline and railroad employees, and Department of Energy contractors.
Strengthens Health and Safety Penalties
Improves Whistleblower Protections
- Raises civil penalties and indexes those penalties to inflation.
- Establishes mandatory minimum penalties for violations involving worker deaths.
- Allows felony prosecutions against employers who commit willful violations that result in death or serious bodily injury, and extends such penalties to responsible corporate officers.
- Requires OSHA to investigate all cases of death and serious injuries (i.e. incidents that result in the hospitalization of 2 or more employees).
Allows Workers and Their Families to Hold Dangerous Employers Accountable
- Codifies regulations that give workers the right to refuse to do hazardous work.
- Clarifies that employees cannot be discriminated against for reporting injuries, illnesses or unsafe conditions, and brings the procedures for investigating and adjudicating discrimination complaints into line with other safety and health and whistleblower laws.
- Provides workers and employee representatives the right to contest OSHA’s failure to issue citations, classification of its citations, and proposed penalties.
- Gives injured workers, their families and families of workers who died in work-related incidents the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.
- Clarifies that the time spent by an employee accompanying an OSHA inspector during an investigation is considered time worked, for which a worker must be compensated.
- Prohibits OSHA from designating a citation as an “unclassified citation” where an employer can avoid the potential consequences of a “willful” violation, the most serious violation.
- Allows any worker or their representative to object to a modification or withdrawal of a citation, and entitles them to a hearing before the Occupational Safety and Health Review Commission.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
NATE web cast information:
DATE / TIME
Wednesday, September 16 at 11:00 a.m. CT
Pre-register before September 16 to confirm your attendance and receive an email reminding you of the event.
1. Visit https://golinharris.webex.com/golinharris/onstage/g.php?d=663939216&t=a
2. Click “Register”
3. On the form, enter your information, password (NATE), and then click “Submit”
1. Visit https://golinharris.webex.com/golinharris/onstage/g.php?d=663939216&t=a
2. On the right side of the screen, enter your information, password (NATE), and then
click “Join Now”
*Please log-in 5-10 minutes early to ensure you have downloaded the WebEx software and can view the presentation.
CONFERENCE CALL DETAILS
After logging into the Web cast, use the dial-in information below to listen to the Web cast audio. You must dial into the conference call to be able to listen to the LIVE Q&A following the broadcast.
Participant code: 663 939 216
|*Note: You must dial into the conference call to be able to listen to the LIVE Q&A following the broadcast.