Masonry Magazine October 1994 Page. 12
Unsafe Act or Condition
An employer violates OSHA standards when a supervisor has knowledge of or participates in an unsafe act or condition. When supervisor knowledge and plain indifference is apparent, OSHA frequently classifies such violations as willful and assesses far greater penalties.
If you have an established safety and health program, regularly conduct training in hazard recognition for employees and uniformly enforce safe work rules, you may be in a position to argue that unsafe acts or conditions are the result of isolated employee misconduct.
Thoroughness, consistency and corroboration are critical in raising this defense. OSHA Compliance Officers will interview employees to determine if work rules are in place and safety training is performed. They will expect you to substantiate uniform enforcement through written records. A smaller contractor's documentation of enforcement may be simple notations on a daily log. They can be corroborated by both the supervisor's and worker's signatures.
On its face, the "formalization" of warnings is viewed as adversarial, but contractors who take these steps send a clear signal to employees that their safety is important. The majority of workers need not be warned a second and third time about safety infractions. Suspensions or firings are rare.
Follow these steps when implementing a progressive disciplinary action program:
Look at your injury experience and those of others contractors in your trade discipline. Make a list of the kinds of hazards that caused them, e.g. bad lifting practices; unsecured planks or ladders; poor house keeping.
Make a list of work rules that address those hazards. Make the work rules specific, e.g. ladders will be held fast until the first person up secures it.
Give your employees those rules and have them acknowledge receipt in writing.
Take time to train your employees about the rules and tell them you intend to enforce them, first with a verbal warning (and written record), and suspension or dismissal for second infractions.
Don't make exceptions in the uniformity of your enforcement. Employees won't take your safety efforts seriously if you're inconsistent, (the same treatment goes for your brother in-law as it does for any other employee).
Keep a record of your warnings and require employees to sign-off on their receipt. Do not throw them away.
Update your rules when new hazards are discovered.
Multi-employer Citation Policy
Many OSHA citations are issued to employers because their workers are exposed to hazards, regardless of cause and control.
Often referred to as the "Anning Johnson defense", citations and penalties have been successfully averted because of four factors:
The employer did not cause the hazard to exist;
The employer did not directly control conditions causing the hazard;
The employer has taken reasonable steps to notify the party(s) charged with cause and control of the problem; and
The employer has taken reasonable steps to keep his/her employees away from the hazard. (short of walking off the job).
To invoke the multi-employer citation defense, an employer's onsite representative must be prepared to demonstrate that all of the above elements have been met.
As with all defenses, it's critical that onsite supervisors be prepared to raise them at the time of inspection, and insist that compliance officers document these discussions in their files.
General contractors, by virtue of their purse strings authority on projects, often have difficulty arguing that they have no control of hazards. However, their diligence in monitoring subcontractors' activities and records ordering abatement of hazards go far in OSHA's evaluation of the overall safety effort.
A common concern of subcontractors is formally notifying generals, construction managers or owners of conditions which, although technical violations of the OSH Act, may not present an immediate threat. Contractors, after all, want to maintain good business relationships with others from whom they might get future work.
On the other hand, "Avoid Verbal Orders" notices and similar communications speak to a subcontractor's professionalism and thoroughness. Although written notification is always desirable, verbal communications, which can be corroborated, are effective in meeting the test as well.
OSHA considers simple access to a hazard as the basis for establishing employee exposure. The more your site representative inspects the work environment. (including access areas), recognizes hazards, and develops and communicates specific work rules to employees, the better your chances of raising a multi-employer defense.
Feasibility
Although OSHA does not consider the expense of correcting a hazard to be justification for not addressing it, operations in construction cannot always be made one-hundred percent safe. Notwithstanding the possibility that an employer or his industry is unable to devise protection methods at a given time, advancements of technology and construction methodology dictate that employers exercise ongoing diligence in exploring alternative methods to safeguard workers.
As an example, although it has been argued over the years that over-hand bricklaying methods performed at unprotected floor edges cannot allow for the installation of a guard-rail and that the use of a safety harnessing system would pose a "greater hazard" because of its tripping potential, it could be also shown that a scaffold or catch platform installed in the unprotected opening is feasible, albeit in some cases expensive.
An employer has not discharged Continued on Page 46