Eleventh Circuit Says General Contractor Was Responsible for Subcontractor’s Safety Practices

Jonathan Crotty | Parker Poe Adams & Bernstein

Under the Occupational Safety and Health Administration’s multiemployer worksite doctrine, a company can be cited for safety violations that it did not create and for hazards to which its own employees were never exposed. The doctrine is used most often in the construction industry, where a general contractor (GC) is cited for safety violations committed by a subcontractor used on the worksite. OSHA says that if the GC is a “controlling employer,” it must exercise reasonable care to detect and correct safety issues with all employers working on the construction site.

Last week at oral argument, judges for the Eleventh Circuit Court of Appeals (which includes Georgia) soundly rejected a GC’s contention that it did not control the safety practices of subcontractors used on the project. In FAMA Construction LLC v. U.S. Department of Labor, OSHA cited the GC and assessed almost $300,000 in penalties for repeat fall protection and other violations by roofing subcontractors at a residential construction project. The GC argued that it was not a controlling employer liable for the subcontractor’s activities because those subs were independently incorporated businesses and FAMA never attempted to oversee or control their safety practices.

The Eleventh Circuit judges rejected these arguments, noting that the roofing subcontractors had worked for FAMA for years. The GC had control over their work, held safety seminars, and could fine or remove subs for poor safety practices. This relationship fell squarely within the multiemployer worksite doctrine.

General contractors reading this might be tempted to react by ending all efforts to oversee subcontractor safety practices at their worksites. Although not addressed in this case, OSHA can cite GCs under multiemployer worksite doctrine if they fail to take reasonable measures to oversee the subcontractor’s safety practices. In other words, ignorance will not serve as a defense to these citations.

OSHA Issues COVID-19 Guidance for Construction Industry

Garret Murai | California Construction Law Blog

This past month, after remaining relatively quiet following the coronavirus outbreak, OSHA began issuing industry-specific guidance on how to deal with the coronavirus in the workplace.

Until this month, the only construction industry specific guidance issued by OSHA was an OSHA Alert entitled COVID-19 Guidance for the Construction Workforce, a one page document providing little more guidance than that workers should stay home if sick, wear masks and frequently wash hands to prevent spreading and catching the coronavirus, and to sanitize tools and work areas.

Early this month, OSHA issued more comprehensive guidance for the construction industry. The guidance, as noted in the preface by OSHA is simply guidance, “is not a standard or regulation” and “creates no legal obligations. The guidance supplements general guidance applicable to all workplaces issued earlier by OSHA.

The new construction-specific guidance, which while more detailed than its earlier-issued OSHA Alert, continues to provide rather general guidance and encourages construction employers to engage in a three-step process to protect its workers including: (1) assessing the hazards to which workers might be exposed; (2) evaluating the risk fo exposure; and (3) selecting, implementing and ensuring workers use controls to prevent exposure.

The new guidance suggests that construction employers analyze potential coronavirus risks along a spectrum from “Lower” to “Very High”:

Engineering Controls

When working indoors and a person (e.g., coworker, visitor, resident, subcontractor) is suspected of having or known to have COVID-19 (Note: this seems a bit odd to me. If a co-worker or subcontractor is suspected of having or has COVID-19 they shouldn’t be at the worksite at all), the guidance recommends use of “closed doors and walls, whenever feasible, as physical barriers to separate workers from any individuals expriencing signs and/or symptoms consistent with COVID-19” including “erecting plastic sheeting Barrera when workers need to occupy specific areas of an indoor work site where they are in close contact (less than 6 feet) with someone suspected of having or known to have COVID-19.”

Interestingly, the guidance also recommends that construction employers “periodically reassess engineering controls (as well as work practices and administrative controls” to identify any changes that can be made to decrease the need for N95 respirators (or other respirators with a higher level of protection) and other personal protective equipment (PPE) ordinarily used for work activities that involve exposure to hazardous substances” (emphasis added) to “help conserve PPE that is in short supply or needs to be diverted to activities associated with higher SARS-CoV-2 exposure risks.”

Administrative Controls

The guidance also recommends that construction employers use administrative controls, when feasible, to reduce or eliminate potential exposure to the coronavirus by implementing and updating its workplace policies to reflect:

  • Standard operating procedures that follow the Centers for Disease Control and Prevention (CDC), OSHA, state/territorial, and local guidelines for preventing the spread of COVID-19 infection.
  • Training for employees on the spread of the disease in the geographic areas in which they work. 
  • Screening calls when scheduling indoor construction work to assess potential exposures and circumstances in the work environment, before worker entry.

The guidance provides sample questions for screening work assignments before sending a a worker to perform construction activities in an indoor work environment:

The guidance also recommends training workers on, among other things, the following:

  • The signs and symptoms of COVID-19;
  • Policies and procedures applicable to the employee’s duties as they relate to COVID-19;
  • Information on appropriate social distancing and hygiene practices;
  • Types, proper use, and limitations of PPE;
  • The importance of staying if sick, wearing masks, use of PPE, and use of EPA-approved cleaning chemicals.

Safe Work Practices

The guidance also recommends that construction employers adopt the following safe work practices:        

  • Screening visitors, to the extent possible, for signs and symptoms of COVID-19;
  • Adopting staggered work schedules;
  • Identifying choke points where workers are forced to stand together, such as hallways, hosts and elevators, ingress and egress points, break areas, and buses, and implementing policies to maintain social distancing in those areas;
  • Coordination of site deliveries to maintain minimal contact and cleaning protocols;
  • Keeping in-person meetings as short as possible; and
  • Ensuring clean toilet and hand washing facilities.

Personal Protective Equipment

Finally, the guidance states that under OSHA’s PPE standards for construction (29 CFR 1926 Subpart E), construction employers much consider wither their hard and risk assessments, including construction site job hazard analyses, indicate a need for the use of protective PPE.

Fall Protection During a Pandemic

Kristin White | Fisher Phillips

Fall protection in construction is one of the most cited OSHA standards across all industries, with fall protection training in construction being the eighth most-cited.  More importantly, falls constitute more than a third of construction deaths, dwarfing the next three causes combined. Outside of construction industries, falls remain a leading cause of citations and fatalities.  Falls are the most dangerous hazard for American workers, which means that fall protection is the most important safety consideration for employers.  Disappointingly, in late March this year the COVID-19 pandemic forced OSHA to postpone its Seventh Annual National Safety Stand-down to Prevent Falls.

Across the country, construction and much of general industry continues without pause through the pandemic; OSHA’s national safety stand-down may be postponed, but employers cannot stop preventing falls. Although OSHA supplies a list of public safety stand-downs that people can attend, it also stresses that employers can conduct safety stand-downs at any time, using a toolbox talk or taking a work break.  Copious amounts of information concerning fall protection is also available on OSHA’s website, which provides employers with an easy place for stand-down guidance.

Most employers are trying to follow the fall protection regulations.  They provide the right equipment and train their employees to use the equipment.  The question then remains, how is fall protection continually the number one citation?  We offer suggestions below to help reduce the lack of use of fall protection on job sites.

First, create a fall protection plan prior to anyone working at heights.  The plan will cover how the job is to be performed and how employees are to perform each task while remaining tied in.  Having a written plan helps ensure everyone understands what equipment is to be used and how.  A good fall protection plan can help spot problems prior to workers being on the roof and running into areas where use of their fall protection appears infeasible.

Second, enforce a disciplinary policy when workers are found to not be using their fall protection equipment.  Consistent enforcement of discipline for violating both the fall protection plan and your fall protection program shows employees that the use of fall protection while working at heights is a real requirement.  Document your enforcement even if it only involves a verbal warning.  From a legal perspective, consistent, documented discipline helps provide you a defense against fall protection citations.

Many workplaces require social distancing on jobs at this time.  Implementing a safety stand-down as part of a tool-box talk is a great way to bring people together during distancing.  Contemplate small groups based upon your state or locality’s guidelines or perhaps use different areas to conduct a stand down simultaneously across a worksite with multiple groups. Hold the stand down outside, where spacing is easier and virus transmission less likely. Videoconferencing isn’t ideal but could be incorporated to increase attendance from management and corporate workers. Keep people engaged by buying pizza or snacks, providing awards, or raffling prizes. A stand-down may seem dull or difficult during a pandemic, but planning and creative ideas can make it effective, safe, and fun.

Lastly, conducting a safety stand-down specifically educates employees about fall protection, but it also shows them that their employer cares. Culture is perhaps the most important element for maintaining a safe workplace, but also the most elusive. Difficult to describe or understand, culture is even harder to create and maintain.  Now, when many workers may be numb to warnings about COVID-19, other kinds of hazards still exist.  Don’t let efforts to prevent them relax.

Fall hazards during a pandemic also have the benefit of being real and immediate. Young, healthy workers face little risk and may not know anyone that COVID-19 affected.  But fall hazards are easy to see, and workers in every industry are victims of falls. Focusing on fall hazard now is a good way to get workers’ attention and focus upon a safety issues that they can see, control, and prevent.

Plot Twist: Construction Industry Groups Applaud Court’s Decision to Defer to OSHA

Lexie R. Pereira | Forum on Construction Law

Construction industry association groups applaud the June 11, 2020 U.S. Court of Appeals for the District of Columbia’s decision, which denied the AFL-CIO’s (American Federation of Labor and Congress of Industrial Organizations) emergency petition for a writ of mandamus against OSHA (Occupational Safety and Health Administration).1 In what some may call a surprising turn of events, the construction industry is celebrating deference to OSHA.
The administrative petition, filed on May 18, 2020 by the AFL-CIO, together with 23 national unions, was intended to compel OSHA to issue an emergency temporary standard (“ETS”) to protect U.S. workers against COVID-19. OSHA is authorized to issue an ETS upon its determination that an ETS is “necessary” because “employees are exposed to grave danger” in the workplace. 29 U.S.C. §655(c); see In re AFL-CIO, USCA Case #20-1158, (D.C. Cir. 2020). The court stated that OSHA is owed “considerable deference,” especially in these unprecedented times, and found that it acted reasonably when it determined not to issue an ETS at this time. In re AFL-CIO, USCA Case #20-1158, (D.C. Cir. 2020).
Construction industry association groups, such as the Associated Builders and Contractors and National Association of Home Builders, are happy with the decision because they considered an ETS to be an inappropriate measure in such turbulent times. Following the decision, OSHA will continue to develop guidance documents. Not only does this approach allow the agency to swiftly adapt to new COVID-19 information released by other government officials and scientists, it also allows OSHA to continue to rely on the Centers for Disease Control and Prevention.
The problem with this approach, as alleged by AFL-CIO, is that these guidance documents are not mandatory. As follows, AFL-CIO and its supporters are disappointed with the decision, claiming that OSHA’s guidelines are too flexible in that they do not pose a threat of OSHA action for an employer’s noncompliance. Given that OSHA in-person checks of construction sites have fallen to about 16% of pre-COVID-19 inspection levels, the concern may not be unfounded.2 Construction workers, perhaps to a layperson’s surprise, were among the most universally essential workers during the pandemic. This fact can be concerning since, as mentioned by Gaetano Piccirilli and Patrick McKnight in an earlier Dispute Resolver blogpost, construction workers had one of the highest mortality rates during the 1918 Flu pandemic. The combination of higher risk and less frequent OSHA visits may be a reason complaints have increased nearly tenfold.3 In fact, the AFL-CIO’s petition set forth that thousands of workers have been infected on the job.
Nonetheless, construction sites are certainly not going unwatched. Instead, the decrease of OSHA visits is most likely replaced with an increase of state and local inspections. States like Massachusetts, for example, have implemented their own Mandatory Workplace Safety Standards and sector-specific workplace protocols, including Safety Standards for Construction. And although nobody knows exactly how to proceed during COVID-19, after the U.S. Court of Appeal’s decision, at least some construction industry groups are comfortable leaving it up to the “experts.”
Learn more about the scope of OSHA, the extent it preempts (and does not preempt) state and local government action, and what state and local governments are doing to ensure the safety of workers within their jurisdictions at an upcoming ABA webinar on June 29 at 1 pm ET. More details here: https://www.americanbar.org/events-cle/mtg/web/401521567/.

Court Rejects Bid for OSHA COVID-19 Emergency Standard, CONSTRUCTION DIVE (June 12, 2020).
OSHA Construction Safety Inspections Plunge 84% in Pandemic, BLOOMBERG LAW (May 14, 2020).

OSHA’s New Construction Webpage Provides Specific Guidance For Employers In The Construction Industry

Douglas C. Bracken | Kane Russell Coleman Logan

While the media is currently distracted from the Coronavirus, the economy is still struggling to reopen from the shut downs Coronavirus caused. As businesses reopen, employers are obligated under the Occupational Safety and Health Act of 1970 (“OSH Act”) to provide a safe workplace for their employees. Failure to consider and take measures to mitigate the risks from COVID-19 could result in employees being unnecessarily exposed. On-the-job exposure may also result in worker’s compensation and negligence claims, and employers could face regulatory penalties and/or actions from the Occupational Safety and Health Administration (“OSHA”).

On May 11, 2020, our firm posted extensive guidance through its COVID-19 Resources page about how best to prepare and implement a plan to return employees to work, titled Returning to Work in the Shadow of COVID-19: Resources and Suggested Approaches for Employers. This resource was based in part on guidance provided by OSHA, including its Guidance on Preparing Workplaces for COVID-19. According to OSHA, any employer should follow these three basic steps:

First: An employer should assess the hazard to which its workers will be exposed.

Second: The employer should evaluate the risk of exposure.

Third: The employer should select and implement controls to prevent exposure, and take steps to ensure workers use those controls.

OSHA has now adapted its general COVID-19 workplace guidance specifically for the construction industry. On May 26, 2020, OSHA launched a dedicated COVID-19 webpage for construction. The new webpage applies OSHA’s three basic steps to the construction industry to identify hazards from COVID-19; establish a program that eliminates or controls those hazards; and provide specific COVID-19 training for employees. Employers on construction work sites would do well to heed OSHA’s guidance to avoid potential future enforcement actions and liability.

Assessing the Hazard
To assess the hazard in the workplace, OSHA set out its usual threat level matrix, consisting of four levels: LowerMediumHigh and Very High. Generally:

“Lower” risk level tasks allow employees to maintain social distancing of 6 feet, and to have little contact with the public, visitors or customers.

“Medium” risk level tasks might require employees to work within 6 feet of one another (close contact), or to be in close contact with customers, visitors or members of the public.

“High” risk level tasks might include entering into an indoor work site with many different workers, customers or residents suspected of having or known to have COVID-19.

OSHA found construction sites typically do not have tasks with “Very High” risk – a level generally reserved for health care workers and emergency responders directly exposed to COVID-19.

Evaluating the Risk
Using OSHA’s risk matrix, an employer should assess what threat level each employee’s job poses. If certain activities indicate higher risks, OSHA encourages employers to delay non-essential tasks until they can be performed more safely. For example, certain tasks may be safer to perform after more appropriate infection prevention measures are implemented or community transmission subsides.

Implementing Controls
Once the threats have been identified, OSHA encourages the employer to mitigate the risk by implementing abatement methods from one of the following categories, ranked in order of preference: Engineering ControlsAdministrative ControlsSafe Workplace Practices; and Personal Protective Equipment (PPE). This is where the “rubber meets the road” in controlling the risk of infection to employees.

  • Engineering Controls: Isolate employees from the hazard through physical or mechanical controls such as air ventilation, physical barriers, and reconfigured workspaces.

For construction, OSHA specifically recommended using doors and walls when feasible to physically separate workers from individuals experiencing any signs or symptoms consistent with COVID-19. Where employees work in close contact, OSHA suggests erecting plastic sheeting barriers instead. OSHA also recommends periodically reassessing engineering controls to reduce the need for PPE that could be used for higher risk activities. For instance, an employer may find that it can reduce ambient dust thereby reducing the need for N95 respirators that can instead be diverted to first responders who need them more.

  • Administrative Controls: Change work policies or procedures impacting employees such as staggering shifts, encouraging sick employees to stay home, and eliminating non-essential travel.

For construction, OSHA suggested employers implement standard operating procedures that follow CDC, OSHA, state, and local guidelines to prevent the spread of COVID-19. OSHA encourages employers to train construction workers on COVID-19 transmission and prevention, including social distancing, hygiene and the importance of staying home when sick. OSHA also provides specific guidance for working indoors and using cloth face coverings.

  • Occupied indoor work sites

Before an employer takes a job in an occupied indoor work site where persons infected with COVID-19 may live or work, OSHA suggested asking “screening questions” and even provided sample questions:

  1. Is the construction work at an occupied work site essential, urgent or emergency work?

    If “yes,” then proceed with a hazard assessment to determine how best to proceed while minimizing exposure for the worker.
  2. Are there any individuals in the occupied site under quarantine or isolation due to a confirmed case of COVID-19?

    If “yes,” then closely follow recommended infection prevention measures including Engineering Controls, Administrative Controls, Safe Work Practices, and PPE.
  3. If the work is determined to be essential, urgent or emergency work, are there any individuals or contractors in the occupied site suffering from flu-like symptoms to which your employees may be exposed?

    If “yes,” then closely follow recommended infection prevention measures including Engineering Controls, Administrative Controls, Safe Work Practices, and PPE.

Once work begins at an occupied indoor work site, employers should request that any persons diagnosed with COVID-19, experiencing signs or symptoms of COVID-19, or under quarantine or isolation for COVID-19, remain physically separated from workers, and only communicate remotely with workers. OSHA further suggests increasing air flow in any shared spaces by using air conditioning or opening windows where weather permits.

  • Cloth face coverings

Consistent with CDC guidance, OSHA recommends construction employees use cloth face coverings as a protective measure in addition to social distancing or where social distancing is not feasible due to working conditions. OSHA specifically notes that cloth face coverings are not PPE to protect the wearer, but are instead designed to protect others from infection. So employees should still use PPE (like respirators) where indicated by an appropriate hazard assessment.

OSHA also provides guidance on the proper use of cloth face coverings, noting they may not always be practical on a construction site. OSHA encourages employers to provide additional or alternative choices in the event an employee’s cloth face covering becomes wet, soiled or otherwise visibly contaminated. Employers should also provide training and oversight to employees to ensure proper use of face coverings, and OSHA provides a list of “dos and don’ts” for using cloth face coverings.

  • Safe Work Practices: Administrative controls focused on procedures for safe and proper work habits.

OSHA recommends multiple safe work practices for construction work sites, including:

  • Screening all visitors to a construction site, including employees, for signs and symptoms of COVID-19.
  • Implementing staggered shifts to reduce the number of employees on the job site at a given time and to ensure social distancing.
  • Identifying choke points in the work site and implementing policies to maintain social distancing.
  • Coordinating deliveries to the site to minimize contact and avoid interference with cleaning protocols.
  • Limiting in-person meetings, including toolbox talks and safety meetings, by shortening the meeting times, controlling numbers in attendance, and using social distancing.
  • Cleaning and disinfecting toilet and handwashing facilities on the work site regularly.
  • Providing and refilling hand sanitizers and disinfecting frequently touched items regularly.
  • Personal Protective Equipment (PPE): Although PPE is often required to address workplace hazards, OSHA considers PPE to be the last line of protection behind all other controls.

OSHA notes that construction workers are unlikely to need PPE beyond what they normally use to protect themselves during routine job tasks. Hard hats, gloves, safety glasses, and/or respiratory protection may be required depending on the specific workplace conditions. An employer is required by 29 CFR 1910.132 to assess the hazards that are present, or likely to be present, in its workplace and provide its employees the appropriate PPE for those hazards. Employers should also consider where necessary providing PPE ensembles to visitors to the work site that may include gloves, eye protection and/or face shields.

However, OSHA specifically noted that respiratory protection may be needed in limited circumstances to protect against someone with suspected or confirmed COVID-19, consistent with 29 CFR 1910.134. Again, employers should conduct a hazard assessment to determine what PPE may be necessary under the circumstances.

Action Items
Employers in the construction industry should review OSHA’s guidance on its new construction webpage, and use that guidance to assess the hazards from COVID-19 at construction worksites, evaluate the risks posed by COVID-19, and implement controls to prevent infection to employees. Following OSHA’s guidance should help employers avoid liability not only from OSHA, but from other potential claims that may be leveled by employees and others who may visit the job site.