Why Fully Implemented Safety and Health Programs and Employee Training are Essential in Protecting Employees and Employer Liabilities

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A Company’s Health and Safety Program is a collection of individual Health and Safety Programs such as Hazard Communication Program, Lockout/Tagout Program, Emergency Evacuation Program, etc. These individual Health and Safety Programs must be in writing, detailed and pertaining to the particular facility for which the Health and Safety Program was written, current, and shared with all employees, contractor, and visitors accessing and entering your facility. Through training the entire Health and Safety Program is shared and through documentation, proof of Health and Safety Program training and implementation is verifiable.

 

The mere fact that you have a complete Health and Safety Program will not benefit you if employees affected by the OSHA standards within the Health and Safety Program have not been trained to understand them and to follow the programs’ directions, employees are not actively involved, or if management does not fully embrace the requirements of your Health and Safety Program and show due diligence in the Health and Safety Programs implementation.

 

One way OSHA inspectors get a feel of whether or not a company has an active Safety and Health Program, is to ask to see employee disciplinary reports and write ups regarding employee infractions against the company’s Health and Safety Program. All employees, including all levels of management, should be held accountable for obeying site safety and health rules. The following four step disciplinary policy is a suggestion that should be considered and applied to everyone by the appropriate level of supervisor:

 

  • oral warning;
  • written reprimand;
  • three days away from work;
  • dismissal.

 

Visitors, including contractors who violate safety and health rules and procedures, should be escorted from the site.

 

There are circumstances where more than one employer may be cited for a violation of an OSHA standard, and where an employer may be held responsible for a hazard even though none of its own employees were exposed to it. OSHA does not cite or fine employees for violation of their responsibilities. If an employee knowingly violates your Health and Safety Program and an OSHA citation is issued, a company’s documentation, records, and proof of due diligence in the implementation of its Health and Safety Program would result in the OSHA potential citation and fine either being dismissed, retracted or lowered to a De Minimis Violation. De minimis violations are violations of standards which have no direct or immediate relationship to safety or health. Whenever de minimis conditions are found during an inspection, they are documented in the same way as any other violation, but are not included on the citation.

 

Employee misconduct is an “affirmative defense” to a failure to meet the requirements of an OSHA requirement. To establish the defense, the employer must be able to show that: (a) the violative condition was unknown to the employer, (b) the employer had a method of detecting violations and an effective enforcement policy when violations are discovered, and (c) the employee’s action was in violation of an adequate employer work rule which was effectively communicated and uniformly enforced.

 

Therefore, if the employer can show that it did not know (and reasonably could not have known) that the employee was not wearing the PPE, that it had an adequate work rule requiring the employee to wear the PPE, and that the work rule was effectively communicated and uniformly enforced, the employer would not be responsible under OSHA requirements for the violation.

 

Many standards promulgated by the Occupational Safety and Health Administration (OSHA) explicitly require the employer to train employees in the safety and health aspects of their jobs. Other OSHA standards make it the employer’s responsibility to limit certain job assignments to employees who are “certified,” “competent,” or “qualified” – meaning that they have had special previous training, in or out of the workplace. The term “designated” personnel means selected or assigned by the employer or the employer’s representative as being qualified to perform specific duties. These requirements reflect OSHA’s belief that training is an essential part of every employer’s safety and health program for protecting workers from injuries and illnesses. Many researchers conclude that those who are new on the job have a higher rate of accidents and injuries than more experienced workers.

If ignorance of specific job hazards and of proper work practices is even partly to blame for this higher injury rate, then training will help to provide a solution.

It is pertinent and a good idea for the employer to keep a record of all safety and health training. Records can provide evidence of the employer’s good faith and compliance with OSHA standards. Documentation can also supply an answer to one of the first questions an accident investigator will ask: “Was the injured employee trained to do the job?

Training in the proper performance of a job is time and money well spent, and the employer might regard it as an investment rather than an expense. An effective program of safety and health training for workers can result in fewer injuries and illnesses, better morale, and lower insurance premiums, among other benefits.

 

https://www.osha.gov/Publications/2254.html

 

Because OSHA mandates through the General Duty Clause; (SEC. 5. Duties (a) 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.), covers any hazardous condition that is not explicitly listed or described in the General Industry Standard, employers should do anything and everything possible to address conditions that could or would likely present a hazard or potential hazard to employees.

 

An employee using a ladder, hand and power tools, machinery or any other equipment and not being trained on the use, limitations and care of the equipment would be considered creating a hazardous condition. For the aforementioned reasons additional employee training to address specific hazards to employees working should be addressed to prevent a hazardous condition from occurring.

 

Employers are required to develop and implement a Safety and Health Program that includes the following written programs. These programs require employee training and documentation of training.

 

· Hazard Communication Program

· Hearing Conservation Program

· Lockout/Tagout Program

· Bloodborne Pathogens Program

· Emergency Evacuation Program

· Fire Protection Plan

· Required PPE, Including Respiratory Protection Program

· Powered Industrial Trucks (Forklifts) Training Program

· Other Inspection Programs (Eyewash, Extension Cords, Ladders, Tools, PPE, etc)

 

The Safety and Health Program should include at a minimum four basic program elements:

 

  • Management Leadership and Employee Involvement;
  • Worksite Analysis;
  • Hazard Prevention and Control;
  • Training.

 

The Safety and Health Program should include within these four basic program elements, a detailed description of how the programs elements and sub-elements are designed and implemented.

Listed below are suggested documents to implement the Management Leadership and Employee Involvement elements of the Safety and Health Program.

 

  • Worksite policy (note how this policy is communicated to the work force and visitors);
  • Current year’s goals, objectives, action plans, and program evaluation;
  • Job descriptions that include safety and health responsibilities;
  • Performance evaluations that include an evaluation of safety and health responsibilities;
  • Budget showing money allocated to safety and health;
  • Contractor bidding proposal sheets showing all contractors’ prior safety and health record;
  • Orientation outline for all site visitors, including contractors;
  • Evidence of employee involvement, such as committee minutes or other records of employee participation in safety and health program decisions.

 

Listed below are suggested documents to implement the Worksite Analysis element of the Safety and Health Program.

 

  • Results of baseline safety and health surveys, with notation of hazard correction;
  • Forms used for change analyses, including safety and health considerations in the purchase of new equipment, chemical, or materials;
  • JHAs;
  • Employee reports of hazards;
  • Site safety and health inspection results, with hazard corrections noted;
  • Accident investigation reports, with hazard corrections noted; trend analyses results.

 

Listed below are suggested documents to implement the Hazard Prevention and Control element of the Safety and Health Program.

 

· Preventive Maintenance Schedule

· Disciplinary program and records

· Site Rules

· Written Programs mandated by OSHA

· Maintenance records

· Emergency drill procedures and critiques

· Health surveillance and monitoring records

· Reports and investigations of near misses, first aid, and OSHA 300 logs

(1) Hazards eliminated when economically feasible, such as replacing a more hazardous chemical with a less hazardous one;

(2) Barriers will protect persons from the hazard, such as machine guards and personal protective equipment (PPE);

(3) Exposure to hazards will be controlled through administrative procedures, such as more frequent breaks and job rotation.

https://www.osha.gov/SLTC/etools/safetyhealth/mod2_sample_sh_program.html


Provided below is a letter of interpretation from OSHA regarding more than one employer being cited for the same hazard and employees willfully violating OSHA regulations and company policies.

 

July 25, 2003

James H. Brown
Director of Safety and Health
Associated General Contractors of Indiana, Inc.
1050 Market Tower, 10 West Market Street
Indianapolis, IN 46204

Re: Relevance of NFPA 70E industry consensus standard to OSHA requirements; whether OSHA requirements apply to owners

Dear Mr. Brown:

This is in response to your March 15, 2002, letter asking for clarification of several issues concerning the Occupational Safety and Health Administration’s (OSHA) multi-employer citation policy, owner responsibilities, National Fire Protection Association (NFPA) standard 70E, and several OSHA standards. We apologize for the long delay in providing this response.

All your questions involve the NFPA 70E standard, which is one of many industry consensus standards developed by the National Fire Protection Association. NFPA 70E, which is titled “Electrical Safety Requirements for Employee Workplaces,” is the NFPA’s consensus standard for workplace electrical safety. It covers employee protection from electrical hazards including shock, arc blasts, explosions initiated by electricity, outside conductors, etc.

We have paraphrased your questions as follows:

Question (1): Is a general contractor who is engaged in construction work required to oversee a subcontractor’s compliance with NFPA 70E under Section 5(a)(1) (General Duty Clause) of the OSH Act and OSHA’s multi-employer policy?

Answer : Summary of the Multi-employer policy OSHA’s multi-employer policy is described in compliance directive CPL 2-0.124.1 Under the policy, there are circumstances where more than one employer may be cited for a violation of an OSHA standard, and where an employer may be held responsible for a hazard even though none of its own employees were exposed to it.

 

Compliance officers must use a two-step analysis to determine if an employer should be cited for a hazardous condition. The first step is to determine if the employer has responsibilities with respect to OSHA requirements. This is evaluated based on the employer’s role at the worksite. There are four employer role categories: (1) “exposing” – an employer whose own employees are exposed to the hazard; (2) “creating” – an employer that creates a hazard to which a different employer’s employees are exposed; (3) “correcting” – an employer that has been brought in specifically to correct hazards; and (4) “controlling” – an employer with general supervisory authority over the worksite with the power to have safety and health violations corrected.

If an employer fits one or more of these categories, the compliance officer must go to step two: determining if the employer took sufficient steps to meet its obligations. Only if insufficient measures were taken may a citation be issued. The directive emphasizes that the multi-employer policy is not one of strict liability. It also states that a lesser degree of care is required of a controlling employer than that of the other categories to prevent/discover hazards.

To help compliance officers determine if a controlling employer has met its responsibilities, the directive outlines specific factors to evaluate. For example, to assess whether periodic inspections of appropriate frequency were made, compliance officers are directed to consider factors such as the scale of the project, nature and pace of the work, and the subcontractors’ safety history.

General Duty Clause and the Multi-employer Policy

Section 5(a)(1) of the Occupational Safety and Health Act requires an employer to furnish to its 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 ….

 

However, as stated in the multi-employer compliance directive, only exposing employers can be cited for General Duty Clause violations. Therefore, citations based on a failure to meet a General Duty Clause requirement can only be issued to an “exposing” employer – an employer whose own employees were exposed to the hazard. So, for example, an employer cannot be cited in its role as a “controlling employer” for exposure of subcontractor employees to a General Duty Clause violation.

Industry Consensus Standard NFPA 70E

With respect to the General Duty Clause, industry consensus standards may be evidence that a hazard is “recognized” and that there is a feasible means of correcting such a hazard. However, as explained above, NFPA 70E is not relevant to assessing a controlling employer’s duties under OSHA’s multi-employer policy, since controlling employers are not responsible for overseeing their subcontractors’ compliance with General Duty Clause responsibilities.

A controlling employer engaged in construction work does have obligations regarding 29 CFR part 1926 subpart K (Electrical) under the multi-employer policy.

 

Question (2): I note that OSHA has not incorporated the personal protective equipment portions of NFPA 70E by reference in §1910.132 (personal protective equipment, general requirements) or §1910.335 (safeguards for personal protection). Does an employer have an obligation under the General Duty Clause to ensure that its own employees comply with personal protective equipment requirements in NFPA 70E?

Answer [Please refer to November 14, 2006 letter to Ms. Joanne B. Linhard.]

 

Question (3)(a): Can an employer be cited for violating an OSHA requirement for personal fall protection (PPE) where a properly trained employee decides not to wear the PPE?

Answer

Employee misconduct is an “affirmative defense”4 to a failure to meet the requirements of an OSHA requirement. To establish the defense, the employer must be able to show that: (a) the violative condition was unknown to the employer, (b) the employer had a method of detecting violations and an effective enforcement policy when violations are discovered, and (c) the employee’s action was in violation of an adequate employer work rule which was effectively communicated and uniformly enforced.

Therefore, if the employer can show that it did not know (and reasonably could not have known) that the employee was not wearing the PPE, that it had an adequate work rule requiring the employee to wear the PPE, and that the work rule was effectively communicated and uniformly enforced, the employer would not be responsible under OSHA requirements for the violation.

Question (3)(b): Would the employer be liable in a private lawsuit in that situation?

Answer

It is not within the purview of this office to provide guidance regarding tort, workers’ compensation or other private action legal liability.

Question (4): Are there OSHA standards that state that an owner of a work facility must identify and mark electrical hazards for contractors?

Answer

OSHA requirements apply to employers; generally they do not apply to owners with no employees. Owners that also are employers are subject to OSHA requirements depending on the activities performed. There are no OSHA standards that specifically require owners to post notice of electrical hazards for contractors performing construction work at the owners’ facilities.5 However it is worth noting that both OSHA general industry and construction standards require the durable and legible marking of disconnecting means and circuits.

 

Section 29 CFR 1910.303(f) requires that:…Each service, feeder, and branch circuit, at its disconnecting means or overcurrent device, shall be legibly marked to indicate its purpose, unless located and arranged so the purpose is evident. These markings shall be of sufficient durability to withstand the environment involved.

 

Section 29 CFR 1926.403(h) contains an identical provision.

Question (5): How can I distinguish between electrical work that is considered “construction work” and electrical work that is considered “general industry work”?

Answer

29 CFR 1910.12 sets out the scope of OSHA construction standards. Section 1910.12(a) provides that: The standards prescribed in part 1926 of this chapter … shall apply … to every employment and place of employment of every employee engaged in construction work.

 

Section 1920.12(b) defines construction work as follows: Construction work means work for construction, alteration, and/or repair, including painting and decorating.

 

Section 1910.12(d) adds that: ‘construction work’ includes the erection of new electric transmission and distribution lines and equipment, and the alteration, conversion, and improvement of the existing transmission and distribution lines and equipment.

 

In our February 1, 1999, letter to Mr. Randall A. Tindell, we discussed in detail, and gave specific examples of, the distinction between general industry and construction work.

If the work falls within OSHA’s jurisdiction and is considered construction work, then 29 CFR part 1926 subparts K (Electrical) or V (Power Transmission and Distribution) might apply. However, since you have not specified the type of “electrical work” involved, we cannot advise you on whether one of these standards would apply in your situation.

If you need any additional information, please contact us by fax at: U.S. Department of Labor, OSHA, Directorate of Construction, Office of Construction Standards and Guidance, fax # 202-693-1689. You can also contact us by mail at the above office, Room N3468, 200 Constitution Avenue, N.W., Washington, D.C. 20210, although there will be a delay in our receiving correspondence by mail.

Sincerely,

 

Russell B. Swanson, Director
Directorate of Construction


https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24617

 

Multi-employer being cited for the same hazard

 

Provided below is a letter of interpretation from OSHA regarding more than one employer being cited for the same hazard and employees willfully violating OSHA regulations and company policies.

 

July 25, 2003

James H. Brown
Director of Safety and Health
Associated General Contractors of Indiana, Inc.
1050 Market Tower, 10 West Market Street
Indianapolis, IN 46204

Re: Relevance of NFPA 70E industry consensus standard to OSHA requirements; whether OSHA requirements apply to owners

Dear Mr. Brown:

This is in response to your March 15, 2002, letter asking for clarification of several issues concerning the Occupational Safety and Health Administration’s (OSHA) multi-employer citation policy, owner responsibilities, National Fire Protection Association (NFPA) standard 70E, and several OSHA standards. We apologize for the long delay in providing this response.

All your questions involve the NFPA 70E standard, which is one of many industry consensus standards developed by the National Fire Protection Association. NFPA 70E, which is titled “Electrical Safety Requirements for Employee Workplaces,” is the NFPA’s consensus standard for workplace electrical safety. It covers employee protection from electrical hazards including shock, arc blasts, explosions initiated by electricity, outside conductors, etc.

We have paraphrased your questions as follows:

Question (1): Is a general contractor who is engaged in construction work required to oversee a subcontractor’s compliance with NFPA 70E under Section 5(a)(1) (General Duty Clause) of the OSH Act and OSHA’s multi-employer policy?

Answer : Summary of the Multi-employer policy OSHA’s multi-employer policy is described in compliance directive CPL 2-0.124.1 Under the policy, there are circumstances where more than one employer may be cited for a violation of an OSHA standard, and where an employer may be held responsible for a hazard even though none of its own employees were exposed to it.


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