Safety Excellence for Multi-Employer Worksites

1. Safety Excellence for Multi-Employer Worksites Adele L. Abrams, Esq., CMSP Law Office of Adele L. Abrams PC www.safety-law.com

2. Overview • DOL has made safety at multi-employer worksites a focus of enforcement activity for both safety/health reasons and also compliance with FLSA and other labor laws • OSHA established special webpage concerning temporary workers: https://www.osha.gov/temp_workers/index.html that includes policies on workers provided through staffing agencies • In Hensel Phelps decision (US Ct of Appeals 2018), federal court reaffirmed OSHA’s Multi-Employer Worksite enforcement doctrine • OSHA penalties increased 1/23/19 to $132,598 (willful or repeated violations) per affected worker (egregious violations)

3. Contractor Risk Management Why is risk management critical? Unsafe contractors are the weak link in any project’s safety culture Tort liability considerations OSHA citations in multi-employer worksites Worker’s compensation issues Loss prevention Small contractors are disproportionately represented in fatality cases and hispanic contractors accounted for 28% of fatal work injuries among contractors, well above their 16% share of the overall total. Contingent workers and those with language barriers also often trigger training citations against GC or subcontractor employing them

4. Contractor Risk Management OSHA citations can be introduced in some state tort actions to prove “negligence per se” Some state laws allow injured worker (or estate of deceased worker) to “opt out” of WC exclusive remedy if “gross negligence” involved – OSHA citations can be evidence OSHA works cooperatively with Plaintiff’s attorneys to share information and establish “fault” This simplifies a plaintiff's burden of proof on “duty” and "breach" elements of negligence case. Negligence per se allows the plaintiff to prove the defendant’s “breach” of a duty of care

5. Who Is Accountable? • In OSHA’s eyes, the host employer/GC is fully accountable but additional citations may issue in duplicate to every contractor and subcontractor on site depending on facts • Multiple entities can be cited for failure to provide worker training, personal protective equipment (PPE), and oversight of safe work practices • Improper PPE can raise tort exposure as well as OSHA citations • Who documents training … has this been agreed upon and fulfilled? • Will documents will be available if needed during OSHA inspection and accident investigation • Contract provisions that incorporate ANSI A10.33 may also be enforceable under OSHA’s General Duty Clause (Sec. 5(a)(1) of the OSH Act) • If worker is injured/killed from another company, possible exposure to tort litigation for your company and its supervisors Insurance coverage may not be available if “gross negligence” is found • Supervisors may not be covered by company “errors and omissions” or “O/D” insurance

6. OSHA FY 2017 Enforcement data

7. Types of OSHA Inspections • Imminent danger situations: —hazards that could cause death or serious physical harm receive top priority. • Severe injuries and illnesses • Worker Complaints—allegations of hazards or violations also receive a high priority. Employees may request anonymity when they file complaints. • Referrals of hazards from other federal, state or local agencies, individuals, organizations or the media receive consideration for inspection. • Targeted inspections—inspections aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses also receive priority. • Follow-up inspections—checks for abatement of violations cited during previous inspections are also conducted by the agency in certain circumstances • Site-specific targeting program (relaunched 10/18) • National, Regional or Local Emphasis Programs

8. Enforcement: OSHA Top 10 (FY 2018) • Fall Protection in construction (29 CFR 1926.501) 7,720 violationsFrequently violated requirements include unprotected edges and open sides in residential construction and failure to provide fall protection on low-slope roofs. • Hazard Communication (29 CFR 1910.1200) 4,552 violationsNot having a hazard communication program topped the violations, followed by not having or not providing access to safety data sheets • Scaffolding (29 CFR 1926.451) 3,336 violationsFrequent violations include improper access to surfaces and lack of guardrails • Respiratory Protection (29 CFR 1910.134) 3,114 violationsFailure to establish a respiratory protection program topped these violations, followed by failure to provide medical evaluations and fit testing (and posting of Appendix D for voluntary respiratory users) • Lockout/Tagout (29 CFR 1910.147) 2,944 violationsFrequent violations were inadequate worker training and inspections not completed

9. Enforcement: OSHA Top 10 (FY 2018) • Ladders in construction (29 CFR 1926.1053) 2,812 violationsFrequent violations include improper use of ladders, damaged ladders, and using the top step • Powered Industrial Trucks (29 CFR 1910.178) 2,294 violationsViolations included inadequate worker training and refresher training • Fall Protection—training requirements (29 CFR 1926.503) 1,982 violationsCommon violations include failure to train workers in identifying fall hazards and proper use of fall protection equipment • Machine Guarding (29 CFR 1910.212) 1,973 violationsExposure to points of operation topped these violations • Personal Protective and Lifesaving Equipment—Eye and Face Protection: (29 CFR 1926.102) 1,536 violations

10. General Duty Clause Issues • OSHA’s “General Duty Clause” • Section 5(a) of the OSH Act requires each employer to “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.” 29 U.S.C. § 654 (a)(1). • Pending legislation (“PAW Act” - HR 1074) would permit OSHA to site a GC or host employer for a contractor’s violation of the General Duty Clause … and vice versa.

11. Injury/Illness Recordkeeping • Subcontractors and the GC or host employer are “JOINT EMPLOYERS” of individual but injuries and illnesses should be recorded on only one employer’s log per 29 CFR 1904.31(b)(4) • In most cases, GC/host employer is the one responsible for recording the injuries and illnesses of temporary workers but … • In construction, each employer logs their own I/I unless a subcontractor is under the control & supervision of the GC and lacks its own supervisor • The non-supervising employer still shares responsibility for its workers’ safety and health. They must maintain frequent communication with their workers and the GC/host employer to ensure that any I/I are properly reported and recorded • To assign responsibility, OSHA will scrutinize day-to-day supervision: • Day-to-day supervision occurs when “in addition to specifying the output, product or result to be accomplished by the person’s work, the employer supervises the details, means, methods and processes by which the work is to be accomplished.” • Contractual agreements will also be reviewed and considered (not binding on OSHA)

12. Hazard Communication Standard • Both the GC and subcontractors are responsible for ensuring that their own employees are effectively informed and trained regarding exposure to hazardous chemicals per Inspection Procedures for the Hazard Communication Standard, 29 CFR § 1910.1200, CPL 02-02-038. • The host-employer holds the primary responsibility for training if that employer uses or produces chemicals, creates and controls the hazards, and is best suited to inform employees of the chemical hazards specific to the workplace environment • Duty could transfer to a subcontractor if they bring the chemical(s) on site and persons will be exposed beyond their own employees. • SDSs should be brought to the worksite for all chemical products covered by the HazCom standard • Training on HazCom must be done in a language and vocabulary that the worker understands!

13. PPE & Medical Surveillance • Personal Protective Equipment (PPE) – • Each employer is responsible for providing PPE for site- specific hazards to which its employees may be exposed... • But the GC may specify the services that it wants the lessor employer (agency) to supply, including provision of PPE, medical evaluation, medical surveillance, fit testing by contract • Fit testing must be done on the same MAKE and MODEL of respirator used at the worksite • Both subcontractor and GC can be cited if worker using respirator has 1+ day growth of beard preventing tight fit • Contracts should clearly describe the responsibilities of both parties in order to ensure that all requirements of OSHA's regulations are met. • The employer (or staffing agency or union) must ensure that the records of the required medical surveillance or evaluations are maintained in accordance with the appropriate OSHA standards – typically period of employment + 30 years (unless employed < a year) • All workers who are sampled for air contaminants or noise are entitled to copies of their results

14. OSHA’s Crystalline Silica Rule • Employers must: • Measure worker exposures to silica periodically if at or above 25 ug/ m3 action level (workers get notification of results) • Construction employers can follow “Table 1” in lieu of sampling • Have site-specific written exposure control plan for each contractor, and a competent person to administer the plan • Use engineering controls (e.g., water, ventilation) and work practices to limit exposures from exceeding 50 ug/ m3 (8 hr TWA) • Limit access to areas where workers could be exposed above the PEL; • Use respirators when necessary only after implementing engineering/admin controls; • Restrict housekeeping practices that expose workers to silica if feasible alternatives are available; • Provide free periodic medical exams for highly exposed workers; • Train workers on tasks and equipment that result in silica exposure and ways to limit exposure; and • Maintain records of workers’ silica exposure and medical exams.

15. Silica Enforcement 2018 • 640 construction citations issued in first year (federal OSHA only) • Majority were issued for: • Exposure Monitoring • Written Exposure Control Plans • Training • Respiratory Protection Issues • Virginia OSHA fined one contractor $304,000 for silica violations in 2018!

16. Anti-Discrimination Provisions • Sec. 11(c) of OSH Act protects all workers • Both GC/host employers and subcontractors are prohibited from discriminating against any workers for exercising their protected rights • These rights include reporting an injury or illness, filing an OSHA complaint, participating in an inspection or talking to an inspector, seeking access to employer exposure and injury records, and raising a safety or health complaint with the employer or GC • There also can be no discrimination against workers in terms of denial of bonuses or compensation in incentive/discipline programs • Unless a CBA, DOT or a contract requires it, OSHA limits drug testing of injured workers to situations of reasonable suspicion or where all parties to incident are tested as part of root cause investigation

17. OSHA Multi-Employer Enforcement OSHA has Multi-Employer Policy Agency will cite employers in any of four categories: Controlling Employer Creating Employer Exposing Employer Correcting Employer

18. OSHA Multi-Employer Citations Controlling Employer: “General supervisory authority over the worksite” Includes the power to correct safety and health violations or require others to correct them. Control can be established by contract or by exercise of control in practice. Creating Employer: Party causing a hazardous condition that violates an OSHA standard. Employer is citable even if the only exposed employees are those of other employers.

19. OSHA Multi-Employer Citations Exposing Employer: One whose own employees are exposed to the hazard. Exposing employer can be cited if fails to ask the creating/controlling employer to correct the hazard; inform its employees of the hazard; and/or take reasonable alternative protective measures and remove its employees from the hazardous area. Correcting Employer: “Engaged in a common undertaking on the same worksite, as the exposing employer and is responsible for correcting a hazard." Usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices. Controlling and correcting employers often are a single entity.

20. Personal Tort Liability Considerations Negligent supervision and negligent training cases presume that an employer is subject to liability for negligent acts of its supervisors and/or trainers where it knows or should have known that its employee's conduct would subject third parties to an unreasonable risk of harm. It is critical to document the training given to contract or third-party workers, training directions provided to outside contractors, and to determine the line of supervision appropriate to each part of a particular project and each work area.

21. Contractual Requirements Terms and conditions in the contract should clearly state that all laws and regulations will be complied with. Include: Comply with provisions of 29 CFR, Parts 1904, 1910 and/or 1926. Comply with State and local regulations pertaining to personnel safety that apply to the work or service the contractor is providing. Address PPE, training pre-requisites (e.g., OSHA 10 or 30) and other relevant issues ANSI A10.33 (S&H Management Programs for Multi-Employer Worksites) Indemnification provisions or secondary WC insurance

22. Contractor Orientation Ensure that all required training to “qualify” third-party workers has been provided and completed prior to the start of work Provide orientation to site-specific requirements and ensure that they understand the worksite systems Subcontractors need to share any information about site-specific hazards that they may create in the course of their work (e.g., blasting, crushing material, use of chemicals) Use of Company tools and equipment by a different contractor should not be allowed except when no practical alternative exists. Any use of Company tools and equipment should be properly documented and tools/equipment inspected before use and after return

23. On-Site Activities Each contractor should be responsible for maintaining good housekeeping at all of their work areas Contractor should conduct and document the mandated workplace inspections under OSHA Part 1926 for its unique active work areas and notify GC promptly if there are any site-specific hazards that need correction (e.g., unsafe trenches, missing railings) – danger off area where needed until corrective action can be taken Contractors should notify host employer immediately if any “accident” occurs to make sure that OSHA is timely notified It’s a minimum $5000 fine to late-report fatalities (8 hrs) or in-patient hospitalization, amputation or eye loss (24 hrs) Any employer should intercede if its personnel observe any safety hazards that pose an imminent danger For less serious violations, the employer observing the problem should immediately notify that contractor’s crew supervisor (if present) The GC can request “cease,” “correct” or “leave”

24. Bottom Line: Multi-Employer Sites • A key concept is that each employer should consider the hazards it is in a position to prevent and correct, and in a position to comply with OSHA standards. • The key is communication between each contractor and the GC to ensure that the necessary protections are provided and work coordinated in the safest manner (e.g., staging to limit silica or noise exposure) • Subcontractors have a duty to inquire into the conditions of their workers' assigned workplaces and to report any observed hazards – withdraw workers if imminent danger • Ignorance of hazards is not an excuse – while each subcontractor need not be an expert on all workplace hazards, they should determine what conditions exist at their work areas (and access routes), what hazards may be encountered, and how best to ensure protection for their workers • The GC has the (general) duty to inquire and verify that each contractor/sub has fulfilled its responsibilities to contribute to a safe workplace • All workers must be afforded proper training and safety and health protections – no second class citizens when it comes to S&H

25. Conclusion Failure to forge a safety partnership prior to initiation of work, and a lack of clear role delineation and legal responsibilities and status can mean disaster for the GC and its subcontractors Injuries and citations arising on multi-employer worksites will complicate worker’s compensation and insurance claims, and may subject each employer and its agents to civil or criminal prosecution Prequalification of contractors can help maintain a strong safety culture and minimize exposure to citations and third party tort litigation. Coordination of safety efforts is key to protecting all persons at the workplace.

26. Questions??? Adele L. Abrams, Esq., CMSP safetylawyer@gmail.com 301-595-3520 Eastern 303-228-2170 Western