LEGAL ISSUES IN CONSTRUCTION SAFETY

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LEGAL ISSUES IN CONSTRUCTION SAFETY
Mike Hayslip, Esq., PE, CSP Robert Hirsch,
Esq. Director of Legal Regulatory Affairs, ABC
National
Prepared by ABC National 4250 North Fairfax
Drive, 9th Floor Arlington, VA 22203 (703)
812-2000
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LEGAL ISSUES IN CONSTRUCTION SAFETY
Anticipated OSHA Reform Legislation
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OSHA Reform Legislation

• Protecting Americas Workers Act
• (PAWA)
• H.R. 2049 (110th Congress, 2007)

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Protecting Americas Workers Act

• Whistleblower
• PAWA Section 202 11(c) of the OSH Act
• No person shall discharge or in any manner
  discriminate against an employee for refusing to
  perform the employees duties if the employee has
  a reasonable apprehension that performing such
  duties would result in serious injury to, or
  serious impairment of the health of, the employee
  or other employees.

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Protecting Americas Workers Act

• Victims Rights
• PAWA Section 304 9(a) of the OSH Act
• Definition of Victim
• Rights
• Modification of Citation
• Notification and Review

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Protecting Americas Workers Act

• Victims Rights
• PAWA Section 304(a)
• Definition of Victim
• An employee who has sustained a work-related
  injury or illness that is the subject of an
  inspection or investigation conducted under
  section 8, or a family member of an employeeif
  the employee is killed as a result of a
  work-related injury or illness that is the
  subject of an inspection or investigation
  conducted under section 8 or the employee
  sustains a work-related injury or illness that is
  the subject of an inspection or investigation
  conducted under section 8, and the employee
  cannot reasonably exercise the employees rights
  under this section.

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Protecting Americas Workers Act

• Victims Rights
• PAWA Section 304(b)
• Rights
• On request, a victim shall be afforded the
  right, with respect to a work-related injury or
  illness (including a death resulting from a work
  related injury or illness) involving an employee,
  tomeet with the Secretary, or an authorized
  representative of the Secretary, regarding the
  inspection or investigation conducted under
  section 8 concerning the employees injury or
  illness before the Secretarys decision to issue
  a citation or take no action and receive, at no
  cost, a copy of any citation or report, issued as
  a result of such inspection or investigation, on
  the later of the date the citation or report is
  issued and the date of the request be informed
  of any notice of contest filed under section 10.

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Protecting Americas Workers Act

• Victims Rights
• PAWA Section 304(a)
• Modification of Citation
• Before entering into an agreement to withdraw
  or modify a citation issued as a result of an
  inspection or investigation of an incident
  resulting in death or serious incident under
  section 8, the Secretary, on request, shall
  provide an opportunity to the victim to appear
  and make a statement before the parties
  conducting settlement negotiations.

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Protecting Americas Workers Act

• Victims Rights
• PAWA Section 304(a)
• Notification and Review
• The Secretary shall establish proceduresto
  inform victims of their rights under this
  section and for the informal review of any claim
  of a denial of such a right.

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LEGAL ISSUES IN CONSTRUCTION SAFETY
OSHA National and State Emphasis Programs
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(No Transcript)
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LEGAL ISSUES IN CONSTRUCTION SAFETY
OSHAs New Field Operations Manual (FOM)
Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Recognition of Hazards
• The Hazard Must Be Recognized.
• Recognition of the hazard must be established on
  the basis of, and supported by, the following
  evidence (with adequate documentation)
• Employer Recognition
• Industry Recognition
• Common Sense Recognition

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Employer Recognition (5 Factors)
• A recognized hazard can be established by
  evidence of actual employer knowledge of a
  hazardous condition or practice. Evidence of
  employer recognition may consist of written or
  oral statements made by the employer or other
  management or supervisory personnel during or
  before the OSHA inspection.
• Employer awareness of a hazard may also be
  demonstrated by a review of company memorandums,
  safety work rules that specifically identify a
  hazard, operations manuals, standard operating
  procedures, and collective bargaining agreements.
  In addition, prior accidents/incidents, near
  misses known to the employer, injury and illness
  reports, or workers' compensation data, may also
  show employer knowledge of a hazard.

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Employer Recognition (Continued)
• Employer awareness of a hazard may also be
  demonstrated by prior Federal OSHA or OSHA State
  Plan State inspection history which involved the
  same hazard.
• Employee complaints or grievances and safety
  committee reports to supervisory personnel may
  establish recognition of the hazard, but the
  evidence should show that the complaints were not
  merely infrequent, off-hand comments.
• An employers own corrective actions may serve as
  the basis for establishing employer recognition
  of the hazard if the employer did not adequately
  continue or maintain the corrective action or if
  the corrective action did not afford effective
  protection to the employees.

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Industry Recognition
• A hazard is recognized if the employer's relevant
  industry is aware of its existence.
• Recognition by an industry other than the
  industry to which the employer belongs is
  generally insufficient to prove this element of a
  Section 5(a)(1) violation.
• Although evidence of recognition by an employer's
  similar operations within an industry is
  preferred, evidence that the employer's overall
  industry recognizes the hazard may be sufficient.
  The Area Director shall consult with the Regional
  Administrator or designee on this issue.

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Establishing Industry Recognition (7 Factors)
• Industry recognition of a hazard can be
  established in several ways
• Statements by safety or health experts who are
  familiar with the relevant conditions in industry
  (regardless of whether they work in the
  industry)
• Evidence of implementation of abatement methods
  to deal with the particular hazard by other
  members of the industry
• Manufacturers warnings on equipment or in
  literature that are relevant to the hazard
• Statistical or empirical studies conducted by the
  employer's industry that demonstrate awareness of
  the hazard. Evidence such as studies conducted by
  the employee representatives, the union or other
  employees must also be considered if the employer
  or the industry has been made aware of them

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Establishing Industry Recognition (Continued)
• Government and insurance industry studies, if
  the employer or the employer's industry is
  familiar with the studies and recognizes their
  validity
• State and local laws or regulations that apply
  in the jurisdiction where the violation is
  alleged to have occurred and which currently are
  enforced against the industry in question. In
  such cases, however, corroborating evidence of
  recognition is recommended and/or
• If the relevant industry participated in the
  committees drafting national consensus standards
  (including ANSI, NFPA, and other private
  standard-setting organizations.

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Industry Recognition (Continued)
• Preambles to these standards that discuss the
  hazards involved may show hazard recognition as
  much as, or more than, the actual standards.
• However, these private standards cannot be
  enforced as OSHA standards, but they may be used
  to provide evidence of industry recognition,
  seriousness of the hazard or feasibility of
  abatement methods.
• In cases where State and local government
  agencies have codes or regulations covering
  hazards not addressed by OSHA standards, the Area
  Director, upon consultation with the Regional
  Administrator or designee, shall determine
  whether the hazard is to be cited under Section
  5(a)(1) (General Duty Clause) or referred to the
  appropriate local agency for enforcement.

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Industry Recognition (Continued)
• References that may be used to supplement other
  evidence include
• NIOSH criteria documents
• EPA publications
• National Cancer Institute publications
• Other agency publications
• OSHA Hazard Alerts
• OSHA Technical Manual

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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Field Operations Manual (FOM)General Duty Clause

• Common Sense Recognition
• If industry or employer recognition of the hazard
  cannot be established in accordance with Employer
  Recognition and/or Industry Recognition, hazard
  recognition can still be established if a
  hazardous condition is so obvious that any
  reasonable person would have recognized it.
• Should only be used in flagrant or obvious cases.

Source OSHA Field Operations Manual, CPL
02-00-148, 2009
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LIABILITY through OSHA

• Fines
• Willful 70k, Serious 7k
• Might be modified by
• (Company Size, History, Good Faith, Risk)
• Repeat and Failure to abate
• OSHA Multi-employer work site
• Controlling employer
• Creating employer
• Exposing employer
• Correcting employer
• General Duty Clause 5(a)(1)
• Discrimination 11 (c)

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LEGAL ISSUES IN CONSTRUCTION SAFETY

• What Employers Can and Need to Do
• Bad facts make for bad law.
• Lessons from Summit and Boston cases.
• Employer safety policies, manuals, identifying of
  systemic problems, etc.

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SUMMIT CONTRACTORS

• Issues Remaining
• Ruling does not mean that OSHAs multi-employer
  citation policy is settled because of the
  statutory enforcement scheme
• Federal Plan States
• Eighth Circuit (AR,MO,NE,ND,SD)
• Non-Eighth Circuit
• State Plan States
• Eighth Circuit (IA, MN)
• Non-Eighth Circuit

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SUMMIT CONTRACTORS

• What to Expect
• The Eighth Circuit decision has not brought
  finality
• OSHA will continue to issue multi-employer
  citations
• Will push for decisions in cases arising in other
  circuits
• State Plan States will continue to issue
  multi-employer citations
• Assert that Rev. Commn decisions are not binding
  on their plans.
• Rev. Commn decisions are, however, generally
  considered persuasive.
• At least one state court, in VA, found as the
  Rev. Commn (leading the state
  agency to amend its rules in response).

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ELEMENTS OF NEGLIGENCE
To whom and by whom?

• Duty
• Breach
• Causation
• Harm

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LEGAL ISSUES IN CONSTRUCTION SAFETY

• ABC Resources, Committees Projects
• ABC Crane Safety Summit

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LEGAL ISSUES IN CONSTRUCTION SAFETY

• Questions?

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LEGAL ISSUES IN CONSTRUCTION SAFETY

• Thank you!
• For further information, contact
• Mike Hayslip hayslip_at_aol.com
• Robert Hirsch hirsch_at_abc.org

ABC National 4250 North Fairfax Drive, 9th
Floor Arlington, VA 22203 [phone]
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LEGAL ISSUES IN CONSTRUCTION SAFETY

• END