Worried About OSHA Silica Compliance? Not if You’re in One of These Five States

John F. Martin and D.A. Duggar | Ogletree Deakins | April 16, 2018

With the Occupational Safety and Health Administration’s (OSHA) silica standard already in effect for the construction industry and about to go into effect in June of 2018 for general industry, many employers are anxious about whether their programs will pass muster with federal and state OSHA officials. But if you’re in Maryland, worry not. Two years after then secretary of labor Tom Perez heralded the issuance of a final rule on Occupational Exposure to Respirable Crystalline Silica at the International Union of Bricklayers and Allied Craftworkers’ John J. Flynn BAC/IMI International Training Center in Bowie, Maryland, the “Old Line State” has still not adopted a corresponding silica standard.

Section 18 of the Occupational Safety and Health Act (OSH Act) provides that states may choose to develop and enforce their own occupational safety and health standards. Localized oversight of workplace safety is permitted so long as the state occupational and safety health plan is “at least as effective in providing safe and healthful employment and places of employment” as the federal standards. Though state health and safety standards often simply emulate corresponding federal health and safety standards, states can seek to implement standards that are more stringent than their federal counterparts. California’s recently enacted Process Safety Management for Petroleum Refineries is one example of a more stringent state standard. But what happens when states fail to implement any corresponding health and safety standard?

Not much, apparently. In the case of OSHA’s silica standard, the administration gave states six months from the March 25, 2016, issuance date to adopt their own respective silica standards. Noting the numerous delays announced by OSHA in the enforcement date of the construction silica standard, Maryland adopted a wait-and-see approach before taking any action. Maryland was also apparently awaiting a decision from the United States Court of Appeals for the D.C. Circuit on industry challenges to OSHA’s silica standard. The United States Court of Appeals for the D.C. Circuit issued a decision in December 2017 that rejected all industry challenges but remanded the standard back to OSHA for consideration of whether to include a medical removal provision, a challenge raised by labor unions. After OSHA complained to Maryland about the delay in implementing a silica standard, Maryland safety and health officials responded that the state agency was waiting on OSHA to issue an amended standard to include medical removal provisions.

Maryland is not alone, either. Arizona, Hawaii, Utah, and Wyoming have also failed to adopt a corresponding standard. These states may lack the financial resources and manpower to develop and promulgate a corresponding safety standard on their own. If a lack of resources is a problem, however, the state could simply choose to enact a mirror image of the federal standard or promulgate a short 30-words-or-less regulation that adopts and incorporates OSHA’s silica standard. None have done so.

Until last month, Washington State had also neglected to adopt a silica standard. In Washington, the issue appeared to be a matter of priorities. Washington recently adopted its silica standard on March 23, 2018.

Theoretically, a failure of a state occupational safety and health plan can allow OSHA to exercise its authority under Section 18(f) of the OSH Act to rescind the state’s occupational safety and health plan and have the federal government take over enforcement of workplace safety laws and regulations. This is considered the “death penalty” option and is a time-consuming and litigious process. But OSHA may take a shot across Maryland’s bow and send the state a “show cause letter” asking why a proceeding to reconsider the state’s final approval status should not be commenced. That is what OSHA did with Arizona in 2014 when the state adopted different fall-protection requirements for residential construction.

For employers that work within these five states—and only these five states—there is no silica standard with ancillary requirements such as exposure assessment, medical surveillance, and specific housekeeping measures. These five states still have older airborne contaminant requirements that cover silica, so employers should still ensure that their employees are protected from levels of respirable crystalline silica above the permissible exposure limit.

For employers that work in multiple states that include one or more of these 5 states and one or more of the remaining 45 states, the lack of silica standards in these 5 states can create confusion and complicate compliance efforts. Do you adopt a program where the company “turns off” its silica program in these five states? While this may ease compliance expenses in the short term, employers may not want to take this approach; crews could get confused and forget to “turn on” the program when they cross state lines. Such a program could also worsen employee morale.  Employees would likely notice their employers easing up on silica compliance efforts in states where they don’t have to comply. Employers focused on long-term compliance may want to adopt a consistent silica program that treats compliance as applicable in all 50 states. Employees will likely appreciate the company’s position, and besides, the current “free ride” on silica offered by Arizona, Hawaii, Maryland, Utah, and Wyoming won’t last forever. In its existence, OSHA has never allowed a state plan to forego adopting a standard the agency deems essential to workplace safety.

In a Win for Property Owners California Court Expands and Clarifies Privette Doctrine

Garret Murai | California Construction Law Blog | March 21, 2018

We’ve written before about the Privette doctrine, which generally holds that a higher-tiered party is not liable for injuries sustained by employees of a lower-tiered party under the peculiar risk doctrine, herehere,  here and here. We’ve also talked about some of the exceptions to the Privette doctrine, including the non-delegable duty doctrine and the negligent exercise of retained control doctrine, which provide that a hirer cannot rely on the Privette doctrine if it owed a non-delegable duty to an employee of an independent contractor or if it retained control over the work of an employee of an independent contractor and negligently exercised that control in a manner that affirmatively contributes to injuries to that employee.

In the next case, Delgadillo v. Television Center, Inc., Second District Court of Appeals, Case No. B270985 (February 2, 2018), the Court examined whether a property owner could be held liable under the non-delegable duty doctrine and negligent exercise of retained control doctrine for failing to provide structural anchor bolts on its buildings which led to the death of an employee of window washing company.

Delgadillo v. Television Center, Inc.

In Delgadillo, property owner Television Center, Inc. contracted with  Chamberlin Building Services, a licensed contractor, to wash the windows a of three-story building owned by Television Center in Hollywood, California. While washing the building’s windows, Salvador Franco, an employee of Chamberlin fell to his death when his descent apparatus failed. Franco’s wife and children sued Television Center on the ground that Television Center failed to equip the building with structural roof anchors to which the descent apparatus could be attached as required by law.

Television Center filed a motion for summary judgment arguing that the lawsuit was barred under Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny because Television Center did not control the manner in which the work would be performed. In opposition, decedent’s family, citing McKown v. Wal-Mart Stores, Inc.(2002) 27 Cal.4th 219, argued that because the building did not have structural roof anchors, Television Center was liable for providing defective tools or equipment to an employee of Chamberlin. The trial court granted Television Center’s motion finding that Television Center did not retain control over the Chamberlin’s washing of the windows and the structural roof anchors (or the lack thereof) were not “equipment” under the McKown case.

The plaintiffs appealed.

The Appeal

On appeal, the Second District Court of Appeals explained that under common law “a person who hired an independent contractor to perform a task generally was not liable to third parties for injuries caused by the independent contractor’s negligence.” However, the Court noted one exception to the common rule, known as the peculiar risk doctrine, wherein “a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others.”

In 1993, the California Supreme Court decided Privette,supra, which held that while employees of independent contractor’s are “third parties,” the peculiar risk doctrine does not apply to injured employees of independent contractors. Since then, several exceptions to the Privette doctrine have been created, two of which, are the non-delegable duty doctrine and the negligent exercise of retained control doctrine.

Under the non-delegable duty doctrine, a party that owes a duty to another party cannot delegate that duty to an independent contractor and later claim that it is not liable for injuries to an employee of that independent contractor because it delegated its duty to that independent contractor. Under the negligent exercise of retained control doctrine a party that retains control over the conditions of the work and negligently exercises that control such that it affirmatively contributes to injuries to an employee of an independent contractor cannot later claim that it is not liable for those injuries.

On appeal, the plaintiffs argued that notwithstanding the Privette doctrine, Television Centers was liable because it had a non-delegable duty to ensure that its building had structural roof anchors and had failed to do so and, further, that by failing to ensure that its building had structural roof anchors Television Centers negligently exercised retained control over the work. The Court of Appeals disagreed.

As to the plaintiff’s non-delegable duty argument, the Court of Appeals explained that under Seabright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, the Supreme Court held that while safety regulations under Cal-OSHA create a duty by a hirer to protect its own employees, it does not prevent a hirer from delegating such duties to an independent contractor with respect to the independent contractor’s employees. Relying on Seabright, the Court of Appeals held that:

  1. Safety statutes and regulations, whether under Cal-OSHA or otherwise, can be implicitly delegated by a hirer to an independent contractor with respect to that independent contractor’s employees; and
  2. Delegation of that duty properly includes delegation of the duty by an independent contractor to “identify the absence of safety guards” and to “take reasonable steps to address that hazard.”

Thus, held the Court of Appeals, under Seabright “[Television Centers] implicitly delegated to [Chamberlin] its duties under Cal-OSHA and non Cal-OSHA sources to provide a safe workplace for decedent.” (emphasis added).

As to Plaintiff’s negligent exercise of retained control argument, the Court of Appeals explained that under McKownsupra, while a hirer is not liable for injuries to an employee of an independent contractor merely because the hirer retained control over safety conditions, a hirer is liable insofar as the hirer’s exercise of retained control affirmatively contributes to the injuries of an employee of an independent contractor. The Court of Appeals, however, held that McKown was inapplicable because:

  1. “[W]hile [Television Centers] arguably ‘provided’ the inadequate anchor points to [Chamberlin], it did not suggest or request that [Chamberlin] use the anchor points to wash the building’s windows. To the contrary, the undisputed evidence before the trial court was that ‘[Chamberlin] and its employees made all decisions as to how the job was to be done.’”; and
  2. “Although it is undeniable that [Television Center’s] failure to equip its building with roof anchors contributed to decedent’s death, McKown does not support plaintiff’s suggestion that a passive omission of this type is actionable.”

Conclusion

Delgadillo both clarifies and expands the Privette doctrine by clarifying that a hirer’s “passive omissions” will not give rise to liability for injuries to an employee of an independent contractor, in addition to expanding the protections afforded under the Privette doctrine by holding that safety regulations, whether under Cal-OSHA or otherwise, may be impliedly delegated by a hirer to an independent contractor with respect to that independent contractor’s employees.

OSHA Standards Apply to Insurance Adjusters

Chip Merlin | Property Insurance Coverage Law Blog | May 18, 2017

The Occupational Safety and Health Administration standards apply to all insurance adjusters. I am in my second OSHA class because I was curious how these standards impact costs of construction. My hunch is that many adjusters have no clue about all the standards and fail to make cost estimates which comply with federal law.

My learning also lead to the realization that many activities done routinely by insurance adjusters investigating claims certainly are not being done OSHA compliant. Adjusters routinely investigate roofs for hours without safety equipment to prevent falls. This is illegal. Adjusters will walk through burned homes and buildings without safety equipment to protect their lungs. This is illegal. Even dumb attorneys like me are required to follow these safety standards when investigating losses.

I came across a handout regarding training for adjusters to help prevent falls.

Within the last years time several “Rope & Harness” / Personal Fall Arrest assisted roof inspection schools have emerged on the claims adjuster training circuit, some added on to Independent Adjusting companies, some to established or new adjuster training schools and some emerging as entirely new training schools all together. The fact of the matter is that all of these schools have developed in a response to the now undeniable need for the claims industry to improve on Department of Labor statistics that put property adjusters at nearly four times the injury rate of the average construction worker (78 injuries per million site working hours verses 22 injuries per million site working hours for the general construction industry).

All insurance companies, independent adjusting companies, and public adjusting firms have to comply with these standards. I am certain the vast majority do not comply with these laws which help protect our own safety. My prediction is this will change and occupational safety will become commonplace. It makes good sense to be safe and provide a safe workplace for everybody.

OSHA Issues Final Rules on Slip, Trip and Fall Hazards

DWM Magazine | November 18, 2016

The U.S. Department of Labor’s Occupational Safety and Health Administration this week issued a final rule updating its general industry Walking-Working Surfaces standards specific to slip, trip, and fall hazards. The rule also includes a new section under the general industry Personal Protective Equipment standards that establishes employer requirements for using personal fall protection systems.

Falls are a major danger in the glazing and construction industries.

“The final rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries,” said David Michaels, assistant secretary of labor for Occupational Safety and Health. “OSHA believes advances in technology and greater flexibility will reduce worker deaths and injuries from falls. The final rule also increases consistency between general and construction industries, which will help employers and workers that work in both industries.”

OSHA estimates the final standard will prevent 29 fatalities and more than 5,842 injuries annually. The rule becomes effective on January 17, 2017, and will affect approximately 112 million workers at seven million worksites.

The final rule’s most significant update is allowing employers to select the fall protection system that works best for them, choosing from a range of accepted options including personal fall protection systems. OSHA has permitted the use of personal fall protection systems in construction since 1994 and the final rule adopts similar requirements for general industry. Other changes include allowing employers to use rope descent systems up to 300 feet above a lower level; prohibiting the use of body belts as part of a personal fall arrest system; and requiring worker training on personal fall protection systems and fall equipment.

Mobile Phones on Construction Sites: Managing the Hazards

Mark A. Lies and Adam Young | International Law Office | October 31, 2016

Introduction

Construction business today is regularly conducted through mobile phones, as a necessary tool for employees to communicate and access digital information. Bring your own device programmes and employee mobile phone use present a range of employment and labour liabilities for construction employers: smartphones can be a forum for employees to engage in protected concerted activity, an opportunity for unauthorised overtime work and a tool to access inappropriate images and harass co-workers.

But the biggest challenges posed by mobile phones are the attendant safety hazards. Distracted driving is the number one overall cause of workplace fatalities and mobile phones are a major cause of distraction on construction sites, in the forms of text messaging, talking and game playing. Such distractions can impugn employees’ spatial awareness, recognition of hazards and operation of dangerous equipment. Finally, studies show that defects in certain mobile phone batteries have resulted in fires and explosions. Accordingly, employers with bring your own device programmes or which provide mobile phones for use on construction sites must understand and manage the safety risks that these devices pose.

Distracted driving

Employers whose businesses require the use of cars, vans or trucks at a construction site must understand that their policies and training regarding the safe operation of those vehicles – and the inclusion of a clear prohibition against texting on a hand-held mobile phone while driving – are of considerable interest to the Occupational Safety and Health Administration (OSHA), law enforcement, insurers and potential civil litigants. Failure to address this hazard can result in significant employer liability.

Federal OSHA maintains a Distracted Driving Initiative, in which it targets texting as a major cause of workplace injuries. In a 2010 open letter to employers, Assistant Secretary of Labour for OSHA David Michaels said:

It is your responsibility and legal obligation to have a clear, unequivocal and enforced policy against texting while driving….Companies are in violation of the Occupational Safety and Health Act if, by policy or practice, they require texting while driving, or create incentives that encourage or condone it, or they structure work so that texting is a practical necessity for workers to carry out their jobs. OSHA will investigate worker complaints, and employers who violate the law will be subject to citations and penalties.

OSHA has used its ‘general duty’ clause, Section 5(a)(1) of the Occupational Safety and Health Act, to issue citations and proposed penalties in these circumstances. OSHA considers distracted driving –which can include texting (and potentially the use of mobile phones for telephone calls) – to be a “recognized hazard” under the general duty clause to employee safety. Penalties for wilful violations of the act under the general duty clause can be as high as $124,709.

Even with a no-texting policy, OSHA may cite employers when employees are texting while driving, where texting is a common workplace practice. OSHA indicates that “when it receives a credible complaint that an employer requires texting while driving or who organizes work so that texting is a practical necessity, [OSHA] will investigate and where necessary issue citations and penalties to end this practice”. Accordingly, employers need to be wary of workplace texting and make clear that texting while driving is prohibited.

Distracted operation of construction machinery

Mobile phone distractions present safety hazards far beyond the driving of vehicles. At the most obvious, operators of heavy equipment, tower cranes and other construction machinery can be distracted by mobile phone use. OSHA regulations forbid the use of mobile phones in construction regulations pertaining to cranes and derricks (29 CFR § 1926.1417(d)), but the hazard exists across any dangerous equipment. Accordingly, active operation during the use of construction equipment should be strictly prohibited.

Distracted employees on site

As any employer with industrial machinery knows, preventing accidents starts with making sure that employees are aware of their surroundings. Distractions from mobile phones imperil employees’ ability to recognise and react to hazards, such as passing machinery, which can hit pedestrian employees. Of recent concern is the use of augmented reality games, such as Pokémon Go, in which players view the world through mobile phone screens, walk around while distracted and search real-world sites for game-related information. These games encourage mobile phone use and distraction while walking around, and should be prohibited from the construction site.

Mobile phone distractions can thereby exacerbate existing hazards at a construction site. Employees may already be prone to tripping on uneven terrain, may be exposed to trap hazards working in a confined space or may regularly work with hazardous chemicals. If not actively managed by the employer, mobile phone distractions can exacerbate these hazards and expose employees to a greater chance of injury, illness or death.

Multi-employer construction sites

OSHA has long maintained a Multi-Employer Worksite Policy, under which more than one construction employer may be cited for a hazardous condition that violates an OSHA standard, as long as OSHA determines that it has violated a duty under the act. This can occur even when the employer being cited had no employees exposed to the hazard at issue, as long as OSHA determines that the employer is a creating, exposing, correcting or controlling employer. OSHA can use mobile phone distractions and associated hazards against multiple construction site employers, as long as they fit into one of these categories. General contractors can generally face OSHA liability as a controlling employer for hazards at the worksite and may be found liable by OSHA for failure to address actions by subcontractor employees who utilise mobile phones improperly at the construction site and have caused or may cause an accident. Accordingly, general contractors should be cautious of improper mobile phone usage by subcontractors that could lead to injuries and OSHA citations.

Additional liabilities for distracted employees

OSHA citations and associated penalties are not the only liabilities that employers must be concerned about when it comes to mobile phone distractions. For example, 13 states ban the use of handheld phones while driving for talking. Forty six states and the District of Columbia ban text messaging for all drivers, and in many of the remaining states similar bans are in place at the county or city level. These laws make texting while driving illegal and also open up employers to liability for accidents that result from employees’ distracted driving and improper use of mobile phones.

Construction employees face both individual civil and criminal liability for damages that result from accidents caused by texting while driving or engaging in other work Likewise, employers face vicarious liability for the acts of their employees under agency law for personal injury or property damage that they cause during the course of employment. When an accident happens as a consequence of distracted driving or operation of machinery while the employee is on company time, the employer is potentially liable. Where the employer has not affirmatively prohibited texting while driving and enforced that policy, the employer faces potential liability as a result of the accident.

Beyond potential OSHA administrative penalties and civil and criminal liability, employers should consider how their policies and practices can affect their insurance rates. There is no question that with an increase in accidents caused by distracted employees, the cost of workers’ compensation and other insurance coverage will rise.

Mobile phone fires and explosions

Modern mobile phones use lithium-ion batteries, which in reported cases have caused fires and sparks while in stand-by mode or while charging. Consequently, mobile phones can represent a recognised fire hazard at the workplace. This is especially true on construction sites, which often have flammable materials, dust and flammable chemicals.

As OSHA’s understanding of the hazards develops, it could address this issue under the general duty clause, citing employers which fail to protect employees from the recognised hazard of mobile phone battery fires. Employees who work around flammable vapours or dust face enhanced risks from fires and explosions.

Comment

Employers in the construction industry should bear the following recommendations in mind:

  • Put into effect clear policies that unequivocally prohibit texting and talking on a mobile phone while operating any kind of motorised vehicle on site, including cars, trucks, cranes and heavy machinery.
  • Consider a prohibition on workplace mobile phones in areas of the site where distractions would presents a hazard to employees. Potentially consider banning mobile phone gaming or viewing obscene materials on the site entirely.
  • Carefully evaluate existing policies and the nature of the construction site to ensure that no incentives or unwritten policies and practices encourage the use of hand-held communication devices for texting or data entry while in a hazardous area or while operating a vehicle.
  • Consider the use of certain applications in company-issued devices that can block the use of mobile phones, including texting and internet access, while a vehicle is moving.
  • Enforce bans on texting while operating a vehicle or in hazardous areas of the site. Enforcement of these policies must be consistent and cover both management and non-management employees.
  • If texting or data entry is a necessary part of an employee’s job, consider devising a schedule that allows for routine breaks during which vehicles and dangerous activities are stopped to allow for the communication or data entry to be completed.
  • Inform employees of the fire hazard posed by recalled, dangerous mobile phones, particularly with regard to the ignition of flammable vapours. Prohibit recalled or dangerous mobile phones from being used on the site.

As OSHA’s enforcement relating to employee mobile phone use gains more notoriety, it is expected to have a significant collateral impact on law enforcement at all levels to address this hazard. If the foregoing recommendations are considered and adopted by employers in the construction industry, they will reduce potential individual civil and criminal liability of employees, as well as the vicarious liability of the employer.