OSHA crackdown revisited

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Back in October 2010, in our very first substantive post “OSHA crackdown coming?” (where oh where does the time go), Law under Construction reported the following:

OSHA announced on October 19, 2010 its intent to expand its interpretation of the word “feasible” as related to occupational noise exposure standards.  Under current standards, a citation can be issued if a company fails to use engineering and administration controls (i.e. limit employee exposure) when they cost less than hearing conservation equipment or such equipment is ineffective.  OSHA intends to update “feasible” to “capable of being done,” which will result in citations for not implementing engineering and administration controls unless such controls will put them out of business or threaten the company’s viability.  OSHA is accepting comments on the proposed interpretation until December 20, 2010.

Well, it appears that the OSHA crackdown on this issue recently turned into an OSHA backdown, although those representing businesses and workers differ on whether this is a beneficial change.  Earlier this year, OSHA withdrew this proposed change to workplace noise standards, which, if adopted, would basically have required employers to adopt increased safety measures to protect the hearing of employees instead of just providing them with ear protection gear, such as ear phones.  It appears that OSHA is exploring how to address the hearing loss issue without incurring these types of significant costs. 

We will keep you updated here at Law under Construction if the proposed change resurfaces in some other form.

Guards? Moats? Indiana court addresses jobsite protection

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And I quote: “Lee could have protected himself from liability only by stationing a guard upon the premises to insure that neither Rider, nor anyone else entered upon the inherently dangerous worksite.”  A guard?  Complete with a shack and taser?  Is that the rule?  Let me explain.

The facts…

On December 6, 2010, in , the Indiana Court of Appeals addressed the duties owed by both a general contractor and an independent subcontractor to the purchaser of a home when she visited the construction site, without permission, and suffered serious injuries.

The purchaser, Rider, entered into a contract to buy a house from a general contractor.  The general was also the landowner, as possession would be transferred at closing.  The general hired Lee, a sub, to perform most of the labor.  Importantly, the contract required that any visitor needed permission from the general or the real estate agent to enter the premises. 

Although Rider obtained permission once, she visited 30-35 other times without anyone’s permission.  On the ill-fated visit in question, Lee and his crew were working on the deck.  When rain set in, they split from the site for an early lunch, leaving an unfinished deck.  Rider subsequently arrived, leaned on the unattached railing, fell, and suffered severe injuries.  Lee and his crew returned, discovered the incident, and nonetheless, finished the deck.

The majority’s view…

Rider filed a complaint for negligence against the general and sub.  The court first addressed the liability of the general.  As a threshold issue, the court noted that since the general still owned the property and was in possession, its duties are judged based on its status as the landowner.  The court ultimately relied on the fact that the general/landowner was neither in actual possession or control of the deck when the accident occurred nor was in control of the premises because he did not perform any actual work.  Since the sub did all of the immediate work, Rider’s negligence claim against the general failed.

The court next addressed the sub’s liability.  Since the independent contractor had worked on the deck right before the incident and a short time after, the court first held that it was in control for purposes of establishing a duty to Rider.  The court then held that the sub’s liability was dependant on whether Rider was rightfully on the premises or whether it was foreseeable that she would visit and be harmed.  Although there were unanswered questions of fact, foreseeability was the key issue. 

The dissent…

One judge disagreed with the majority’s analysis of the sub’s liability.  The judge noted that the construction process is fraught with peril and involves many inherent dangers.  To him, the key fact was that the contract required permission to enter.  End of story.  She didn’t follow the protocol and the sub was not present when the injury occurred.   Therefore, it was not foreseeable that she would be there.   The dissent felt the issue is more properly the risk incurred by Rider in entering a dangerous site, rather than the duty owed.  The dissent stated that the majority’s view “places an impossible burden on contractors” and added the statement I initially quoted. 

The moral…

  • Don’t wander around dangerous construction sites.  Everyone loves watching their dream house as it’s built.  However, I think everyone also loves actually moving into that dream home.  Take the time to follow the procedure specified in the contract when you want to visit.   
  • Despite the dissent’s strong rhetoric, the majority is the law.  Thus, if you are in control of the construction, and it is foreseeable that a homeowner (or similar party) will come on the site, take the necessary precautions.  (consult a qualified attorney for such precautions). 
  • Kudos to the sub for finishing the deck.

OSHA crackdown coming?

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A positive note from 2009 –  it appears that it was a safer year to be a construction worker.  

The Labor Department recently reported that the number of nonfatal injuries and illnesses, an indicator of jobsite safety, declined in 2009.  The department’s Bureau of Labor Statistics released its latest annual workplace safety report on October 21, 2010 reporting construction injuries and illnesses on the job decreased 22% last year, or in numerical terms, to 251,000.  Looking at the data from a different perspective (always fun with stats) - injuries and illnesses per worker – also showed a decline.   In 2009 the rate was 4.3 cases per 100 workers, down from 4.7 in 2008.  See the report .   

Or maybe not.

As one would guess, part of the dip in workplace injuries and illnesses can be traced to the drop in construction activity.  However, the Labor Dept. highlighted that its own data may not be complete, because, as it sees it, some companies have not reported all injuries that occurred.  A representative added, “We are concerned about the widespread existence of programs that discourage workers from reporting injuries and we will continue to issue citations and penalties to employers that intentionally under-report workplace injuries.”

This data may be especially relevant in light of OSHA’s “National Emphasis Program on Recordkeeping,” launched last year after several academic studies found that many companies were underreporting or incorrectly reporting workplace-related injuries and illnesses.  Through this program, OSHA aims to correct such inaccurate reporting via stricter enforcement.  The program did not specifically target the construction industry, yet included several pilot inspections of construction employers in  an effort to better understand how to approach potential underreporting issues within the industry on a broader scale.  OSHA more recently issued a revised directive for the national emphasis program that cracks down on underreporting of occupational injuries and illnesses.

It remains to be seen whether the lower rates bundled with scepticism regarding the construction industry underreporting may trigger increase scrutiny by OSHA…

UPDATED - November 1, 2010:  A new tidbit of news seemed especially relevant to this post….  

OSHA announced on October 19, 2010 its intent to expand its interpretation of the word “feasible” as related to occupational noise exposure standards.  Under current standards, a citation can be issued if a company fails to use engineering and administration controls (i.e. limit employee exposure) when they cost less than hearing conservation equipment or such equipment is ineffective.  OSHA intends to update “feasible” to “capable of being done,” which will result in citations for not implementing engineering and administration controls unless such controls will put them out of business or threaten the company’s viability.  OSHA is accepting comments on the proposed interpretation until December 20, 2010.

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