Have you ever thought about how the U.S. Occupational Safety and Health Administration (OSHA) handles safety issues that aren’t specifically referenced in regulations?
In my travels around the United States, I conduct jobsite safety audits on a monthly basis for some major developers. These projects range in cost from a few million dollars to well over $30 million, and the level of compliance varies with the project and quality of the subcontractors. Just when I begin to feel that I have heard and seen almost every unsafe act, someone shocks me again. Lately I seem to be hearing a lot of workers on jobsites say, “Show me where it says that in the OSHA regulations.” They say their company will do what OSHA requires but nothing more. Yet within the few thousand pages of OSHA regulations, there is absolutely no way that everything can be covered to make a jobsite safe. Does this mean that such unsafe practices aren’t subject to citations?
If It Looks Unsafe, Avoid It
Let’s say for some reason you needed to access the face of a structure at the fourth story next to a window opening. You look at the options and decide the best way to get to that height is to place a 2 x 10 plank out a fourth story window. You will then angle the plank to the floor of the structure, and one of your buddies will stand on the plank. With just a couple of feet sticking outside the window and several feet inside, you know that the fulcrum point will allow you to be balanced without the board moving. So you climb out the window and do your work while standing on 2 feet of a 2 x 10 plank that is four stories in the air and held in place by your colleague.
You may think that this is totally idiotic and that no one in their right mind would do such a stupid thing. However, I witnessed such an occurrence, and although I can’t prove it, I believe the same person had used the same procedure to access the outside of a window many times in the past.
Does OHSA have a regulation that specifically says we can’t stand on a board angled out of a window four stories in the air supported by another person? Of course not! But there are regulations that apply. One regulation would be the fall protection standard, which says that all workers in construction must be protected from falls of 6 feet or more. Another regulation covers the quality and stability of the work surface. And then there’s the safety training regulation, which gives an OSHA compliance safety and health officer a lot of potential areas to target.
When the Williams Steiger Occupational Safety and Health (OSH) Act of 1970 was promulgated by Congress, they allowed for some flexibility in applying the regulations to protect workers. To quote one of my instructors at the OSHA Training Institute many years ago, “If it looks unsafe, it probably is unsafe; you just have to find the proper standard to cite the company.” If there is a lack of an exact standard, then a compliance officer will use section 5(a)(1) of the act (also known as the General Duty Clause), which states that “each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” The key is that the act being undertaken by a worker has to be a recognizable hazard. OSHA will carefully scrutinize any General Duty Clause citations to make certain its case is solid.
The Devil is in the Guidelines
Here’s another example. Let’s say that you have a crew working in the roadway. You have placed signs around the work areas along with cones and barricades. You have followed the Manual on Uniform Traffic Control Devices (MUTCD) to demarcate the area. An OSHA officer comes by and sees that none of your workers are wearing high-visibility clothing. Even though the ANSI standards are not promulgated law in the United States, this is a case where OSHA will cite the ANSI standards as an example of guidelines you could follow to protect your workers. As of Nov. 24, 2008, OSHA can also use the Federal Highway Administration (FHWA) regulations that require Class II or III high-visibility apparel on any federal aid highway as another example of guidelines you could use to determine how to protect your workers.
There is one more addition to this discussion that really becomes confusing to some employers. Let’s say that you are working on a construction site in an area that has no overhead or other hazards that would require you to wear head protection, and so you don’t wear it. However, at the gate to the construction site, the general contractor has posted a sign that says “HARD HATS REQUIRED ON THIS JOBSITE.” OSHA therefore can cite your employer because you are violating a safety policy for that jobsite. OSHA considers any safety policies adopted for a jobsite to be binding on all subcontractors as long as they are adequately notified.
Just because an unsafe practice isn’t specifically named in a regulation doesn’t mean you won’t get cited for it. Remember, if it walks like a duck, looks like a duck, and quacks, it is a duck--at least according to OSHA.
Sidebar: OSH Act of 1970
Section 5. Duties
(a) Each employer--
(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.
An ironic twist to the OSH Act is that while the above duties section states that employers have to provide a safe workplace and employers must comply with the standards, it also says that employees must obey the standards. The difference between employees and employers is that when an unsafe act is committed, employers can be cited by OSHA while employees cannot be cited by OSHA.
The entire act can be found at www.osha.gov/Publications/OSH-ACT-reprint-3-09-04.pdf.
Sidebar 2: Case in Point
Ignorance of the appropriate safety guidelines is not an acceptable excuse. The following is actual wording taken from an OSH Act 5(a)(1) citation to a surveying firm.
This includes, but is not limited to, the following:
1) Hand-signal devices such as compliant stop/slow paddles and or flags to control road users through the temporary traffic control zones;
2) Flagger station locations far enough in advance of work spaces for approaching vehicles to have sufficient stopping distance;
3) Flagger stations preceded by an advanced warning sign or signs;
4) Rotating or strobe light control procedure for work vehicles; and,
5) Personnel training in safe temporary traffic control practices and flagging procedures.”