OSHA Compliance in Construction: A Guide to Pre-Inspection and Standards, Lecture notes of Construction

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The

Duty

WEEK 4 – CONSTRUCTION LAW

Pre-

Inspection

Compliance

Voluntary Compliance

OSHA Onsite

Independent Consultants

Coverage

Maritime/ Longshoring

 Includes ship

building / repairing /

breaking / longshoring

 (^) Agriculture

 General industry

standards

 Farming operations

 (^) Growing / harvesting  (^) Livestock / poultry  (^) Farms, dairy, ranches

Conformance with Standards

 Specification

vs.

 (^) Details the precise equipment, materials, and work processes required to eliminate hazard.

 Performance

 (^) tells the degree needed to be achieved but leave method of achieving protection to the Employer  (^) Use reasonably prudent employer doctrine  (^) Industry practiced is relevant but not dispositive.

Precedence

 Vertical over horizontal

 Specific over general

 (^) General may not be pre-emptive

 Literal compliance is expected until variance granted

Precedence

 Accidents do not mean a violation

 (^) Hazardous conduct is not per se evidence of a violation  (^) Absence of an accident doesn’t mean there will not be a citation issued  (^) It is the hazard, not the specific incident that is relevant consideration

Conformance with General Standards

 Actual vs. Constructive Notice

 (^) Did we know about it or should we have known about it  (^) Secretary must prove feasibility. Appropriate is not feasible

Training

 Standard says

competent person

 (^) Trained in hazards  (^) Brenan vs. OSHRC

 Understanding of

Training

 (^) Lack of training is 5A  (^) Can use experience, expertise, job function, nature of hazard.

Safety Equipment  (^) Employer provides tools, equipment, and periodically examine and test equipment  (^) Watch standards that say provide vs. use (PPE standards)  (^) Separate citations for each employee if willful and egregious  (^) It is not necessary for the Secretary to observe defective tools or machinery in use where other evidence indicates that the tools or machinery were in use at the time of the alleged violation or were available for use.

Health Hazards  (^) The first responsibility of the employer is to conduct periodic atmospheric tests to determine the presence and concentration of hazardous substances.  (^) Only reasonable diligence required-ex. Hiring an independent laboratory to conduct atmospheric conditions  (^) An employer may also be required to provide periodic medical examinations for each employee  (^) OSHA’s health standards require that medical examinations be provided “without cost” or “at no cost” to the employee (this includes travel expense too!)

Burden of Proof – General

Secretary must prove by preponderance of

evidence

 (^) Cited standard applies  (^) Employer failed to comply  (^) Employees has access to violative condition  (^) Employer either knew or could have known with reasonable diligence of condition The Secretary also has the burden or proving the reasonableness of the proposed abatement date For example, to prove a violation of a standard mandating that specified “hazards” be eliminated, the Secretary must first prove the existence of a hazard. For other standards, the Secretary must prove the feasibility of corrective measures

Burden of Proof – General  (^) Accidents and observations not legit  (^) “it is apparent that the purpose of the Act is to prevent accidents, not to fix the blame for their occurrence. Therefore, citing an employer after an accident does little to effectuate the Act’s purpose. The other indicator of actual exposure, observed exposure, is equally illogical”  (^) Must show in zone of danger and is assessable  (^) Reasonably predictable either by operational necessity or otherwise the EE have been or will be in the zone  (^) The zone of danger is determined by the hazard presented by the violative condition and is normally that area surrounding the violative condition that presents the danger to employees which the standard is designed to prevent .”  (^) Can use circumstantial evidence Must show actual exposure

Imputation

 The knowledge of a supervisor is generally imputable

Can avoid by:

Implementing work rules in accordance with

standard

Effective communication of work rules to all

Effective enforcement of the rules

NOTE-----An employee who has been delegated authority over other employees, even if only temporarily, is considered a supervisor for purposes of imputing knowledge. The employee’s job function rather than title is determinative.

Feasible: Technological  (^) For 5A1, secretary must indicate specific steps the Employer should have taken  (^) Must show feasibility and likely utility of those means  (^) Must show significant reduction  (^) The commissioners also agreed that OSHA standards are “technology-forcing,” at least to the extent that employers are required to adopt existing technology rather than develop new technology.