PEOSH/OSHA Multi-Employer Worksite Standard and Citation Policies - June 13, 2011

Skyline Environmental, Inc. (Skyline) and the United States Department of Labor Occupational Safety and Health Administration (OSHA) recently conducted a joint presentation on Multi-Employer Worksite Policies at the New Jersey State Safety Council Conference.

The presenters were Mr. Michael Yarnell of OSHA who provided the regulatory perspective and Mr. Edward Testino, Esq. who provided the legal perspective on these issues. Mr. Kris Hoffman, OSHA Region II Area Director provided additional regulatory compliance assistance. Please note that the New Jersey Public Employees Occupational Safety and Health Departments have adopted all OSHA Standards and Citation/Penalty procedures.

The following is a summary of the various OSHA employer-related safety responsibilities and citation policy issues discussed by Mr. Yarnell.

1. OSHA regulations require that all employees must be trained in a language that they understand. The most vulnerable employees work in hard to reach locations at high risk jobs. The fact is that Latino workers die at a rate 50% higher than other workers (14 Latinos die every week in the hardest, most unhealthful and most dangerous jobs).
2. Each employer on a worksite is expected to provide leadership and emphasize safe work practices.
3. Responsibilities for worksite safety and health should be made clear in contractual agreements.
4. OSHA’s policy encourages a team approach to worksite safety and works to improve worksite conditions.
5. OSHA’s Citation Policy is that the hazard-creating employers have the primary responsibility. One employer can be cited for the misconduct of another unless an affirmative defense can be presented (Note: Court cases support both sides of this issue).
6. All employers at a multi-employer worksite can be cited by OSHA: The employer who created the hazard; the employer who exposes his employees to the hazard; the employer who is responsible to correct the hazard; the employer who is contractually responsible to control the hazard or ensure the hazard is corrected.
7. Even if no employees of the primary employer are exposed, the employer who created the hazard can be cited.
8. The controlling employer who is responsible to either correct the hazard or ensure it is corrected can also be cited.
9. The employer is required to maintain contractual control by:
a. Specific contract right to control safety;
b. Combination with other rights that give broad responsibility to control all aspects of the job;
c. In actual practice where control or management authority between contractors is exercised.
10. All responsible parties must be diligent in ensuring that hazards are promptly corrected and exercise “Reasonable Care”.
11. Reasonable Care is having the knowledge, identification, authority and expertise to take corrective action.
12. Did the controlling entity have:
a. The knowledge of hazards the site presents;
b. An effective site safety and health program;
c. A system for identifying (site inspections) and correcting hazards;
d. Regular jobsite safety meetings and training;
e. Take steps to identify and control employers that have a history of violations (graduated enforcement).
13. In order to plead for an affirmative defense the employer must establish ALL of the following items:
a. The employer did not create the hazard;
b. The employer was neither responsible or had the authority to correct the hazard;
c. The employer did not have the ability to correct or remove the hazard;
d. The employer can demonstrate that the creating, correcting and controlling employers had been notified about the hazard.
e. The employer used reasonable diligence to discover the hazard, instructed his employees to recognize the hazard and avoid the dangers by either: Taking means to protect the employees, or removing the employees from the hazard.
14. However, if an employer created a hazard, but had no authority to correct it, took steps to keep all employees away from it and notified the controlling employer, they would not be cited (Note: the controlling employer has a lower level of responsibility to discover or prevent hazards).
15. Enforcement increases in significant and egregious cases demonstrate OSHA's commitment to aggressively enforce standards when employers show indifference to protecting the safety, health and lives of their workers. Number of violations for 2010 rose by 167%. High risk, repeat violators are enforcement targets. OSHA may use legislative reform such as the Protecting America's Workers Act (PAWA).
16. The most frequently cited OSHA Standards are: Scaffolding; General fall protection; Chemical hazard communication (Right to Know); Respiratory protection; Ladders and aerial lifts; Lockout/Tagout (Control of Hazardous Energy; Electrical – wiring methods and general; Powered industrial trucks; Machine guarding; Head protection (PPE); Safety training; Medical services; Accident prevention programs; Guarding floor and wall openings (fall protection); Abrasive wheel machinery (Machine guarding); Eye and face protection (PPE).
17. Expect more detailed OSHA investigations and inspections, especially in Construction sites:
a. Photos and videos;
b. Sampling;
c. Penetrometer, Torvane;
d. Soil manipulation;
e. Bulk samples will be sent to the OSHA lab for analysis.
18. The PEOSH/OSHA Penalty structure is changing. The current penalties for Serious Violations now range from $3,000 to $7000. In the case of death, minimum fine will be $20,000 with a maximum of $50,000 for a single serious violation. Minimum penalty is now $500; $250 for a poster violation where a poster had been previously provided.
19. PAWA may increase maximum fines for serious violations from $7,000 to $12,000.
20. Egregious penalties are used by OSHA when an employer exhibits deliberate violative conduct or indifference to employee safety and health.
21. Repeat violations now have a five-year OSHA look-back (used to be three).
22. Criminal action may result where an employer “knowingly” violates a standard (conduct was not accidental or a mistake) rather than “willfully” violating the standard
23. Good faith reductions remain, but are not allowed in the case of high-gravity Serious, Willful, Repeat, or Failure to Act violations. 15% Quick-Fix reductions remain. 10% reduction for Partnership is gone.
24. The OSHA Severe Violator enforcement consists of: Willful, Repeat or Failure to Act associated with fatality. Two or more Willful, Repeat or Failure to Act (W, R, FTA) violations of high gravity concerning a high-emphasis hazard (focus four, etc.). Egregious willful enforcement action may be taken.
25. The OSHA Severe Violator enforcement includes: Mandatory follow-up; Violations will not be grouped; Inspections of other establishment locations anywhere in the United States; Notices of Citations will be sent to establishment headquarters and union offices; News releases regarding citations will be made; and enhanced case settlement requirements will be used.

The following is a summary of the various legal employer-related safety responsibilities and issues discussed by Mr. Testino regarding multiple employer worksites.

1. The Federal Courts are split. The Federal District Court applying Mississippi Law held that violation of OSHA Standard does not constitute negligence per se. (Militating against inferring a private cause of action). Otto v. Specialties, Inc. 386 F. Supp. 1240 (1974 DC Miss). However the Court of Appeals held that under federal maritime Law a violation of OSHA regulations is negligence per se if (1) the regulation was designed to protect the Plaintiff and (2) designed to protect against the type of risk found in the case. Arthur v. Flota Mercante Gran Centro Am (487 F2d 561 1973 seh den 488 72 et 552).
2. The violation of OSHA Standards and its effect on Tort Liability to the injured person: The New Jersey Supreme Court has ruled in Alloway v. Bradlees, Inc. 157 NJ 221 (1999) that violation of an OSHA Standard does not constitute per se negligence but does serve as evidence of duty of care (This opinion was also adopted by one federal court sitting in Mississippi).
3. Personal Injury Lawyers have been increasingly successful of getting OSHA violations before juries as evidence of negligence or as sometimes stated as evidence of the duty of care which the violator owed to a person (Injured Plaintiff). OSHA violation as evidence of Negligence does not eliminate Contributory Negligence as a defense - Bertholf v. Burlington W. Railroad 402 F. Supp 171. Generally No Private Cause of Action.
4. The Settled Rule of Law in NJ: Violation of Regulations promulgated by Occupational Safety and Health Administration (OSHA) does not, without more, constitute basis for an independent or direct tort remedy; accordingly such a violation does not constitute negligence per se [Alloway v. Bradlees, Inc. 157 NJ 221 (1999)].
5. Major consideration in determination of the existence of a duty of reasonable care under general negligence principles is the foreseeability of the risk of injury. Determination of whether duty of care exists involves identifying, weighing, and balancing several factors:
a. The relationship of the parties,
b. The nature of the attendant risk,
c. The opportunity and ability to exercise care and the public interest in the proposed solution.
6. Analysis leading to the imposition of a duty of reasonable care is fact-specific and principled - and must satisfy an abiding sense of basic fairness under all circumstances in light of consideration and public policy.
7. Regulations promulgated by OSHA could be considered in determining the duty owed by a general paving contractor to subcontractor’s employee and whether duty was breached in connection with injury sustained on work site as a result of a defective unloading mechanism on subcontractor’s dump truck. The Prime contractor on grading project could be liable for any of its subcontractor’s violations of regulation promulgated by OSHA. Failure by OSHA to find a violation does not preclude a determination that there was a duty imposed by OSHA regulations and that same were violated.
8. Statutory Standards of Conduct may be regarded as evidence of negligence if the Plaintiff was a member of the class for whose benefit the standard was established [Alloway v. Bradlees - Citing J.S. r. R.T.H 155 NJ 330 (1998)]. OSHA regulation 29 CFR 1926.16 imposed the same non-delegable duty for work place safety on a general contract as the Construction Safety Act. (NJAC 12:180-3.15.1). Alloway – As a prime contractor Pat Pavers may be liable for any of its subcontractor’s violations of OSHA regulations as well as its own by the terms of 29 CFR 1926.16.
9. By contracting for full performance of a contract, the prime contractor assumes all obligations prescribed as employer obligations prescribed under the Standards contained in this part whether or not he contracts any part of the work. 29 CFR 1926.16(b). Further 29 CFR 1926.16(c) with respect to subcontract work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility. In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract 29 CFR 1926.16(a).
10. Where does that leave the employer: Designated Liability; Safety Responsibilities; Safety Programs; and Insurance requirements.
11. Insurance - Make sure insurance certificates are collected. For protection, require to be named as additional insured.
12. Safety Responsibilities - Define responsibilities contractually; Insure compliance via inspections and documentation. Develop procedures for dealing with non-compliance and corrective actions - Stop work/sanctions.
13. Develop a Contractor Safety Program in writing. Review the contractor’s history of compliance with safety and health programs (require submissions).
14. Require contractors to provide applicable OSHA/PEOSHA training. Require a designated safety representative. Require contractor’s qualifications (i.e. comply with safety program before they start work). Designate responsibilities for coordination and compliance. Require ongoing training and orientation for employees. (Don’t allow them to work until they provide evidence.)
15. Design around Special Hazards: Develop Chemical procedures and contaminate procedures. Require certified and licensed contractors and personnel. Require safety permits.
16. Design and Contract for Risk Management Procedures - Investigate all recordable accidents. Document all accidents.
17. Assign responsibilities for reporting requirements. Provide written procedures for the investigating and reporting.
18. Recordkeeping - Provide for recordkeeping requirements. Inspect records. Require and designate contractors to maintain OSHA 300 Log.
19. Set Forth Written Security Requirements. Sign-in Requirements. No unauthorized contractors, employees, vendors, friends, spouses, children, etc.
20. Comply With All Fire Protection Requirements - No Smoking.

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