Arctic Freeze – Stay Safe!

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Given the Arctic Freeze that America is in the middle of this week, it seems a great time to share some important information regarding Cold Weather Safety and what to do if you find yourself stuck in a Stranded Vehicle

Luckily, for those of us located in Texas for most of the year we don’t have to deal with the extremes of cold weather, but it is still important to make sure we dress appropriately for the weather and that our vehicles are properly stocked for any emergency.

Proper Attire

In the winter, layers are your friend. Especially in Texas where it is not only possible, but likely, to see a temperature swing of 40 degrees from morning to late afternoon. Without layers there is no way to adjust to the temperatures properly.

There are several synthetic options these days, but if you are looking for great natural options then consider wool and cotton. Wool, worn next to your skin, will naturally wick away the sweat so that you remain warm and not chilled. Cotton has some of the same abilities, but it doesn’t work as effectively.

My recommendation is to layer the cotton on top of the wool, followed by a jacket. This will keep you warm in the morning, and allow you to shed your layers through the day as it heats up.

Stocking your car

During the winter make sure your car is stocked with some extra warm clothing, gloves and blankets. While it may not be because of a crazy winter storm, there is always a possibility of being stuck in a stranded vehicle. If that happens you want to make sure you have the ability to stay warm until help arrives.

And if your travels are taking you far afield, make sure it is also stocked with some non-perishable foods and liquids.

OSHA is Using Drones during Inspections!!!

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Have you heard the latest news? OSHA is now using drones to conduct safety inspections!

Okay, now that we have the sensationalizing out of the way, let’s talk about what this really means. Or more importantly, what it doesn’t mean. Well, maybe it is a little of both.

First and foremost, it is important to understand that there are certain protocols that have been set in place on how an OSHA Inspection occurs.

Click here for the factsheet covering Inspections in more detail. But the short version is this:

  • An OSHA Compliance Officer will arrive, present his/her credentials, and indicate why they are there.
  • The Opening Conference will be conducted to discuss the reasons for the inspection, and to gather the employer representatives that need to be present.
  • The Walk-around, the part of the inspection that feels like an inspection, is the conducted. During the Walk-around the OSHA Compliance Officer will talk to a reasonable representation of the workers (in private) to gather information. The Compliance Officer will also take pictures, measurements, and notes based on their findings.
  • The Closing Conference is the final step of the inspection. During the Closing Conference the Compliance Officer will discuss the findings and generally provide some feedback on what will likely be presented and recommended for a citation.

After the Inspection is completed the Compliance Officer will present the information to the Area Director, with the recommendations for citations and penalties, and the Area Director will make the final determination on what actions to take (or not take). If you will be getting a citation it will be sent to you in some official manner within 180 days (6 months) of the inspection.

Key Points

Some of the key points that you need to understand, because they become very important once we start discussing the drone part of this article.

Number one! OSHA is permitted to gather information (i.e. take pictures, videos, notes, etc.) from any place that they are legally permitted to be. So, if you see them staked out across the street in a parking lot with binoculars, a video camera, or even a drone…well, they have a right to be there and they have a right to collect that evidence in that manner.

Number two! The inspection does not begin until they have conducted the Opening Conference with the appropriate people. The worker in the trenches is NOT the appropriate person. They must contact a person in some sort of supervisory capacity. That person is generally the General Contractor’s Superintendent. So, if you are a Subcontractor reading this, you will be notified as appropriate.

What about the drones?

Can OSHA fly above your project with a drone and collect evidence without stopping in and saying hello? Ummmm, maybe? Legally, probably so, because the airspace isn’t technically yours in most cases. There are certain situations (airports, military bases, … some sort of secret installation) where it may be protected, but most places aren’t. However, there are other restrictions that could come into play if it came right down to it, but that is WAY beyond my scope of knowledge.

Am I concerned about the drones?

Nope! Not at all! And here is why.

The main reason is Logic. Not every Compliance Officer has a drone. They are expensive to own. They require specific licensing and training to operate in an official capacity. And at this point I honestly just think the waters are too murky for the average Compliance Officer to base their case purely on the findings of a drone. OSHA is under-staffed, and under-funded. They are not going to resort to some high-tech gadget for the common citation. It is just too risky and it takes too much time and money to make sense.

In my long career, the number of inspections that have occurred based on a drive-by number exactly 5. And of those, only 1 actually had pictures taken prior to entering the project. Of the others, three resulted in a either a fax (remember those?) or a phone call asking for my email that said “Hey, we saw such and such, please respond to this officially, letting me know it was investigated and taken care of.” The other one resulted in an immediate pull-in to gather the project team to go walk the site.

But they already use them!

Yep, they do. And in most of the cases it has been to investigate an incident so they can gather information from areas that are otherwise unsafe to enter.

And, I will not be surprised to see them become more of a common tool during the course of a normal inspection. There are some pretty nifty drones out there with cameras and speakers and such. So, where I can see them being used, intelligently, would be to fly them up to talk to the tower crane operator or to inspect a crane, rather than having the operator climb down, or the inspector climb up. Another time might be to just gather an overall scope of a project… is work being performed on the roof? If not, why bother to go up there.

In Conclusion

Drones are out there. They are amazing tools that can be used for inspections, even by OSHA. They are worth looking into to see if they can help with your own processes. And it will definitely be interesting to see where OSHA takes their stance on the use of drones in the coming months.

But, in my opinion, you don’t have to worry about “big-brother in the sky” looking at you or your project. Not yet, anyway.

Beside, if you are managing your project and conducting your activities safely, then you have nothing to be concerned with anyway.

Multi-Employer Worksites

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Who is responsible for what, exactly?

For those of you that have been in the construction industry for a while, the information that follows is likely to surprise you for one reason or another.

For some of you, you will think “Wait, what? That can’t possibly be true!” And for others of you, you will think “Wait, what? That’s always been the case, so how is this anything new?”

Turns out, much to my surprise, that both of those statements/feelings are completely legitimate. So, here is the back story.

From the beginning OSHA had some verbiage that permitted them to cite whoever they deemed responsible for the violation.

And in 1999 OSHA released a directive titled “Multi-Employer Citation Policy” which clarified this responsibility.

First, OSHA defines what constitutes a Multi-Employer Worksite, which is a worksite where there is more than one employer involved in the completion of a contract…. So, that sounds familiar, right? It is virtually EVERY construction project that has ever been, or will ever be completed.

Next they provide 4 specific categories of employers that are cite-able for one violation. The short definitions are:

  • Creating Employer – The employer that actually caused the hazardous condition.
  • Exposing Employer – The employer that actually has employees exposed to the hazard.
  • Correcting Employer – The employer that is responsible for correcting the hazard (generally this responsibility is specifically assigned by contract, but not always). And finally…
  • Controlling Employer – The employer that is responsible for making sure everything is done properly, on time, in budget, and most importantly safely!

If you want to read all the nitty gritty about how they may these determinations, click here. Otherwise, just understand that this thing has been out there for a long time, and it has been used, at least on occasion in some locations. Trust me on that one.

But wait!!!

Apparently there had been a case way back in 1981 (Melerine v. Avondale Shipyards, Inc) where OSHA’s claim they could cite whoever was challenged, and based on the ruling of that lawsuit it was determined that essentially companies were only responsible for the actions of their own employees and not for the actions of anyone else, to include their subcontractors.

Maybe the 1999 Directive was OSHA’s answer to that lawsuit? Honestly, I don’t know. But because of that lawsuit the Fifth Circuit set a precedent that prevented citations from being issued based on that directive.

Fast-forward to 2015

I won’t rehash the whole thing here, but if you want to read the case, click here.

But the short version is that a General Contractor was cited by OSHA as the “Controlling Employer” for the actions of a 2nd tier subcontractor under the “Multi-Employer Citation Policy”.

As anticipated, the General Contractor contested the citation. And in the Appeals process it was determined that the General Contractor did in fact meet the definition of Controlling Employer, but because the citation was issued in the jurisdiction of the Fifth Circuit there was precedent to vacate the citation.

This decision then created yet another review. This review was of not only of this specific case, but also of all previous cases that established precedent in some way, as well as of the Multi-Employer Citation Policy itself. There are several pages of how they ultimately came to their decision, but a decision was finally reached.

Conclusion!

The Multi-Employer Citation Policy is alive and well!

So, go back to the top and read through it if you want the full details. Otherwise, just understand that as the Controlling Employer (i.e. Contractor) you are expected to ensure that EVERY worker, regardless of whose employee they are, is working in a safe environment in a safe manner. If your Subcontractor is issued a citation, you very well could end up with a similar citation because it is YOUR RESPONSIBILITY to CONTROL your worksite.