t is commonly known that construction is a high-risk industry. Many factors create these risks. Among them are use of dangerous tools, being struck by vehicles or objects, and falling from heights, and these are just three of the dozens of hazards that construction workers face every day on the job. Protecting them, if done properly, can be complicated, expensive, and time consuming.
The year 2020, however, has introduced the industry to the word “pandemic”, a hazard transcending all others in importance. The COVID-19 outbreak immediately vaulted it to the top of the occupational safety illness prevention list. After shutdowns of various durations, safety programs everywhere were modified or over-hauled, workflows were rearranged, and sanitizing protocols were adopted, but a recent University of Texas (Austin) study suggests that more may need to be done.
Using information collected at hospitals in the Austin area between March and August, researchers analyzed the occupations of those treated and found that construction workers are five times more likely to be hospitalized because of the virus than workers in other professions. “It doesn’t necessarily mean we need to stop construction work,” said Lauren Ancel Meyers, director of the COVID-19 Modeling Consortium at the University of Texas at Austin. “It means we need to go to great lengths to ensure the health and safety of workers when they do go to work.”
However, some perspective on these alarming statistics may be necessary. First, the sample is relatively small comparatively, and is basically a “snapshot” of one city, but one with a population of almost a million people. Second, the March-August period was at the height of the first wave when many of the safety procedures were still emerging and health authorities were issuing mixed messages or even contradictions regarding the best virus-prevention strategies and methods. Third, all Texas construction activities, unlike New York’s, were deemed essential by the governor of Texas so construction continued throughout the time frame reviewed by the researchers.
Still, New York employers should not dismiss the Texas study as irrelevant to them since there is a commonality that all construction companies share regardless of location. Workers stand shoulder to shoulder at times leading to potential contact spreading, and the culture may tend to trivialize or ignore some hazards, especially unseen ones such as a virus.
Now is time to evaluate company COVID-19 safety measures to ensure they are effective, as recent upswings in virus contractions confirm that the battle is far from over. In fact, reviewing them should be done regularly because emerging technologies to help protect workers, not to mention ever-changing health guidelines, make virus control a constantly evolving initiative.
The attitude “we have a plan already” or “we’re done with virus control” is dangerous and short-sighted. Staying up to date on the latest contagion-control information available, then altering or improving your program accordingly gives your employees the best chance of continuing to remain safe and healthy.
Managing OHSA Citations Requires Preparation and Planning
Note: This is part two of our November article (The Judicial process)
What is the next step? Does the case “go to court”? No, but the case may be heard by the Occupational Safety and Health Review Commission (OSHRC) which, despite the similarity of its name, is independent of and unaffiliated with OSHA or the Department of Labor. Like OSHA, it was formed in 1970 and established to afford impartial review of disputes between employers and the agency.
OSHRC procedures require that an administrative law judge (ALJ) who works for the agency hold one of two types of hearings depending upon the complexity of each case. The most common is formal and resembles a civil or criminal trial in many respects. It allows for discovery, pleadings, testimony, a hearing, and posting hearing briefing or argument. The alternative, known as Simplified Proceedings, is less formal and has fewer legal procedures. More straightforward and less complicated cases typically are heard using the rules of Simplified Proceedings.
Whether formal or simplified, the ALJ will set a hearing date and time at a location that is as close as practicable to where the alleged violation(s) were cited. According to the OSHRC, “a cited employer or an affected employee may appear with or without legal counsel. The Secretary of Labor, OSHA’s representative, is represented by a government attorney who bears the burden of proving the violation(s).”
Decisions handed down by the ALJ are not the “final word” necessarily since the losing party, whether OSHA or the employer, still has options. Filing a Petition for Discretionary Review by a three-person presidentially appointed committee (known as the Commission) is the first one, although the Commission ultimately may decide to not review a decision at its discretion. On the other hand, it may on its own initiative examine an ALJ’s findings even without either one of the litigants requesting it. Beyond that, unsatisfied parties may still avail themselves of a judicial remedy by filing a lawsuit in a US Court of Appeals that has jurisdiction.
Stakeholders who are concerned that administrative law judges working for another federal agency, even one that is supposedly independent, would tend to favor OSHA in their decision making will be encouraged to know that, based on a recent analysis of OSHRC decisions, employers have had favorable results, either partially or totally, almost 45 percent of the time. This data indicates that working within the system to dispute an OSHA enforcement action is not without potential value.
Starting and finishing a challenge to an OSHA order should not be taken lightly since it has several involved steps that employers must consider before deciding whether it is worth the time, effort, and money. Still, employers do not necessarily have to be resigned to their fate, especially if strong evidence or circumstances suggest that the agency’s findings are flawed. The price of not acting to have a case reviewed, however, may mean a damaged public reputation, loss of customers, and a slippage in employee morale or production, among other consequences, all of which must be carefully weighed before participating in the appeals process or not.
Please direct any questions or concerns to:
The Safety Division at Hamond Safety Management
Anthony Vacchio, avacchio@hamondgroup.com