Cardinal Sin – Construction Contractor’s Alleged Failure to Abate OSHA Citations Results in Big Penalties

Daniel Birnbaum, Mark Lies, Craig Simonsen and Adam Young | Seyfarth Shaw

Seyfarth Synopsis: By ignoring the terms of a settlement agreement it had with the Occupational Safety and Health Administration (“OSHA”), a New Jersey roofing contractor now faces more than $600,000 in penalties after numerous citations for allegedly failing to abate 2020 OSHA citations.

Employers often receive OSHA citations. Any citation the employer receives must be “abated,” meaning that the violation must be corrected to comply with the law, within 20 days of a settlement, unless a longer abatement term is prescribed by the settlement agreement.  OSHA regularly conducts follow-up inspections to ensure abatement. Failure to abate can be fined with huge penalties — $13,653 per violation, per day beyond the abatement date. For example, just 60 days after the abatement date, four citations could result in a fine of more than $3,000,000.

OSHA’s Hasbrouck Heights, New Jersey Area Office recently penalized a construction employer following a series of inspections at multiple worksites. In December 2020, OSHA allegedly observed the contractor’s employees working on a residential roof project without required fall protection, the most commonly cited occupational safety issue. In January 2021, OSHA visited another work site where “inspectors identified unsafe use of ladders and failures to ensure that workers used head, eye and fall protection.” These two inspections resulted in two willful, four repeat, and three serious citations and $420,521 in penalties.  According to OSHA, the “contractor … agreed to make safety improvements after federal safety inspections in 2019 identified nine violations with proposed penalties of $121,687.” The employer then “violated its settlement agreement with the U.S. Department of Labor. Following inspections in 2020 and 2021, the company now faces $600,741 in penalties for 10 more violations.” The new citations include a $180,220 citation for failure to abate one Serious violation.

The huge citation was coupled with a public relations disaster when OSHA released a damaging press release: OSHA Area Director Lisa Levy excoriated the contractor’s alleged “failure to honor its agreement with OSHA and knowingly put workers at risk of serious injuries or worse is inexcusable.”

Any allegedly non-compliant conditions that OSHA raises during an inspection should be promptly abated during the inspection (if possible) to reduce the probability of citations and to secure a Quick Fix penalty deduction. If OSHA issues citations, employers would be wise to carefully consider what citations they accept, and how those citations can be abated. Abatements can be explicitly detailed in settlement agreements, to ensure that all parties have the same views of abatement. Citations must be abated within 20 days of the settlement agreement becoming a final order, and additional “enhanced” abatements — that do not correspond to specific citations — should also be addressed promptly. If OSHA raises concerns about abatements that were submitted, employers should be responsive and prompt to get any issues addressed. Employers should consult with outside counsel on how to structure settlement agreements and avoid large Failure to Abate citations like the one received here.

OSHA Standard Changes That Will Impact Construction

Courtney Malveaux | Jackson Lewis

The U.S. Department of Labor’s (DOL) regulatory agenda for spring 2021 lists regulations the agency will focus on for the next six months, including 26 Occupational Safety and Health Administration (OSHA) regulations, six of which are in the final rule stage and the rest are in the proposed or pre-rule stage. Many of them will directly affect the construction industry.

Heat Illness Prevention

Perhaps the most consequential for the construction industry will be the standard for Heat Illness Prevention in Outdoor and Indoor Work Settings.

Heat is the number one weather-related killer and the problem has become more dangerous in recent years as global temperatures have continued to rise. Construction workers especially are at high risk, often working outside and performing exerting tasks.

Historically, OSHA has used the Occupational Safety and Health Act’s General Duty Clause, a “catch-all” for recognized hazards not addressed by a specific standard, to cite employers. That will change. If OSHA follows state standards already in place, it could mandate break times and require employers to monitor employee acclimatization, as well as outdoor temperatures and humidity levels.

Communication Tower Safety

A proposed Communication Tower Safety standard is under consideration. As technology evolves, the need for communication towers continues to grow, which likely will cause an increase in tower construction and maintenance projects in the next few years. However, these projects have had a fatality rate that has greatly exceeded that of the rest of the construction industry over the past 20 years. This standard will aim to dramatically decrease that rate as more workers enter the industry.

Enhanced Workplace Injury and Illness Tracking

Enhanced Workplace Injury and Illness Tracking is on the way. As expected under the Biden Administration, OSHA has proposed to revert to the 2016 version of the rule following a change under the previous administration in 2018. That proposed regulation includes anti-retaliation provisions that may discourage workplace safety and health incentive programs and post-incident drug testing.

If this reversion occurs, it likely signals that OSHA will view drug testing and incentive programs as a form of employer retaliation. Proposed changes would require establishments with at least 250 employees to provide electronic submissions of injury and illness data with Forms 300 and 301, in addition to the less detailed summary data currently required in Form 300A.

This could have a particular impact on larger construction sites that report more injuries and illnesses because of the sheer number of employees working at a site. It also may have an outsized impact as construction employers grapple with marijuana legalization laws and worker intoxication. Those employed in construction are almost twice as likely to have a substance abuse disorder than the general population. Construction workers also are the most likely to use opioids and cocaine of any profession and 12 percent of them have an alcohol use disorder. Reasons for these statistics may include long workdays, physical pain from labor, and stress. Regardless of the cause, substance and alcohol abuse lead to more workplace accidents and injuries. Dehydration from alcoholism also can lead to several different heat illnesses. If substance abuse trends do not change, the new regulations may end up having employers defending more citations, in addition to other legal headaches.

Hazardous Material

Hazardous Material standards addressing blood lead levels and crystalline silica is in the works. Construction workers encounter these hazards with great frequency, especially those who work with concrete, stone, and metals.

Personal Protective Equipment

OSHA is addressing Personal Protective Equipment (PPE) in Construction, although it is unclear how it will do so. A PPE standard could have an outsized impact for construction sites, especially if it addresses COVID-19 exposures for construction workers in close quarters. It also could affect the distribution of PPE normally used in the industry.

Cranes and Derricks

Amendments to the Cranes and Derricks in Construction Standard are on the table. Amendments likely will not change the application of the standard significantly, but they should help clarify and correct mistakes.

Welding and Cutting

OSHA plans to amend Welding and Cutting standards to remove ambiguity about the “confined space” definition. The original rule uses the term but failed to define it. A new definition could have an impact on many construction sites depending on the phrasing.

Other Regulations

Other regulations on the agenda that may have an impact include Shipyard Fall Protection—Scaffolds, Ladders and Other Working Surfaces, a Mechanical Power Presses update, and Walking-Working Surfaces.

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.