Concussions Aren’t Just a Risk for NFL Players: Hardhats versus Safety Helmets

Fisher Phillips | August 25, 2018

While recently meeting with a group of contractors, I noticed that three large general contractors were requiring their employees to wear safety helmets instead of traditional hardhats, despite the approximately $120 cost per helmet. Futuristic Kask helmets were the helmet of choice. Kask states that the helmets satisfy ANSI Z89.1-2014. Technical specs. Arguably the most important aspect of the helmet was the chin straps.

I also had recently noticed a LinkedIn post by Flintco’s Flint Howard, championing helmets versus traditional hard hats:

In the spirit of the Flintco Ethos: “I believe that mediocrity is unacceptable”, Flintco is launching a pilot program that will introduce the use of helmets to help champion positive changes in our industry.

A week later I was teaching a masters class at Georgia Tech and learned from an attendee that his large specialty contractor had switched to helmets because a number of their large GCs demanded them.

While this seemingly sudden surge in helmet usage may seem abrupt, interest in helmets has been steadily growing since NIOSH posted on March 21, 2016 that 25% of Construction injuries between 2003 and 2010 resulted from Traumatic Brain Injury (TBI). (The full study was published in the March 2016 issue of the American Journal of Industrial Medicine.

United Rental described in a November 15, 2017 article why some contractors are moving away from traditional hardhats, and quoted Jason Timmerman, EHS director for Skanska Commercial Development:

[A traditional hardhat] is only good for something being dropped and hitting you directly on top of your head. It has nothing to do with slips, trip and falls on the same level, where your head snaps backs, or falling off ladder, falling off a wall form. With any type of fall you have, the traditional hard hat will more likely than not fall off.”

While adding a chin strap to a hard hat could help it stay put, helmets being tested and used by Skanska and other construction companies, which come with straps, also offer frontal, rear and side impact protection thanks to foam padding.

The article also quoted Seth Randall, a division safety director for Clark Construction on why their self-perform group was rolling out approximately 3500 helmets:

“We’ve already seen positive results in a couple of incidents that have occurred, that the helmets have potentially saved an employee from any type of head trauma,”

In talking with contractors who have started using such helmets, they said that construction workers are a conservative lot and some employees carped about the new helmets, claiming they were too hot or that the strap annoyed them. One employee said that workers at another contractor teasingly said they looked like bicycle couriers, although there may have been a few more adjectives thrown in.

As Randall acknowledged,

“for some employees, the helmets, which are larger than hard hats, took some getting used to. “It’s a different type of fit, and some people prefer one or the other, but we are getting positive feedback about the fit,”

Randall explained that Clark educated employees on the importance of wearing the helmets for their safety and advised that as “they wear it, they’re finally realizing that it’s also a lot more comfortable as well.”

Bruce Rolfsen’s July 2017 article, Safety Helmets are replacing Hardhats on Construction Sites explained that helmet purchase costs could be an issue for small builders and subcontractors.

For head protection, an OSHA rule (29 C.F.R. 1926.100) requires employers to provide head protection equipment that meets or exceeds the industry consensus standard ANSI Z89.1 issued 2009. The agency also requires employers to provide safety equipment free to workers.

Hard hats meeting the consensus standard can be bought for less than $20 each.

Advertised prices for most helmets meeting the standard start at around $110, depending on the specific model. Adding a flip-up visor could be an additional $50. Bulk discounts would reduce costs, but competition also has the potential to lower costs. Kask and the French-based Petzl are among the few companies offering helmets meeting the ANSI Z89.1 requirements.

The cost is an understandable issue for contractors, but to some specialty contractors, they regard the cost as inevitable because most of the GCs to whom I talked are requiring subs to use helmets at their sites.

As to the price, one assumes that other manufacturers will ramp up their own helmets and challenge Kask, who seems to be the gold standard by which the others are being judged.

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.