Inflation and OSHA

For Spanish click here.

Did you know that every year OSHA alters it’s Penalty amounts to coincide with Inflation?

And I bet you can also guess that it is always INflation and never DEflation. So, like every year for the last few, Penalties are on the rise. The new rates can be found here:


Multi-Employer Worksites

For Spanish click here.

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.


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.

Top-10 Violations in Construction in 2018

Click here for Spanish

OHSA recently posted their Top-10 Violations in 2018.  The list below highlights the Top-10 Violations that were issued specifically in the Construction Industry.  

  1. 1926.501 – Fall Protection
    • 1926.501(b)(13) (4,577 violations) – fall protection in residential construction
    • 1926.501(b)(1) (1,126 violations) – unprotected sides and edges
    • 1926.501(b)(10) (596 violations) – roofing work on low-slope roofs
    • 1926.501(b)(11) (429 violations) – steep roofs
    • 1926.501(b)(4)(i) (117 violations) – protection from falling through holes, including skylights
  2. 1926.451 – Scaffolding
    • 1926.451(g)(1) (553 violations) – fall protection
    • 1926.451(e)(1) (413 violations) – providing access
    • 1926.451(b)(1) (333 violations) – platform construction
    • 1926.451(g)(1)(vii) (253 violations) – use of personal fall arrest or guardrail systems
    • 1926.451(c)(2) (147 violations) – foundation for supported scaffold poles, legs, posts, frames, and uprights
  3. 1926.1053 – Ladders
    • 1926.1053(b)(1) (1,605 violations) – extending portable ladder side rails at least 3 feet above upper landing surface
    • 1926.1053(b)(4) (373 violations) – using ladders only for purpose for which they were designed
    • 1926.1053(b)(13) (261 violations) – not using the top or top step of a stepladder as a step
    • 1926.1053(b)(16) (120 violations) – marking or tagging portable ladders with structural defects and removing them from service
    • 1926.1053(b)(6) (74 violations) – using ladders only on stable and level surfaces unless secured
  4. 1926.503 – Fall Protection, Training
    • 1926.503(a)(1) (1,286 violations) – training program for each employee who might be exposed to fall hazards
    • 1926.503(b)(1) (368 violations) – written training certification
    • 1926.503(c)(3) (113 violations) – retraining required when inadequacies in employee’s knowledge or use of fall protection systems or equipment indicate that the employee has not retained the requisite understanding or skill
    • 1926.503(a)(2) (85 violations) – training by a competent person qualified in specified areas
    • 1926.503(a)(2)(iii) (46 violations) – training by a competent person on fall protection to be used, including guardrail, personal fall arrest, safety net, warning line, and safety monitoring systems, and controlled access zones
  5. 1926.102 – Eye and Face Protection
    • 1926.102(a)(1) (1,475 violations) – ensuring that each affected employee uses appropriate eye or face protection when exposed to eye or face hazards
    • 1926.102(a)(2) (48 violations) – ensuring that each affected employee uses eye protection that provides side protection when there is a hazard from flying objects
    • 1926.102(a)(3) (4 violations) – employees that wear prescription lenses
    • 1926.102(b)(1) (2 violations) – protective eye and face protection devices must comply with any of the specified consensus standards
  6. 1926.20 – General Safety and Health Provisions
    • 1926.20(b)(2) (510 violations) – inspections of job sites, materials, and equipment by competent persons
    • 1926.20(b)(1) (447 violations) – accident prevention programs
    • 1926.20(b)(4) (15 violations) – only employees qualified by training or experience can operate equipment and machinery
    • 1926.20(b)(3) (6 violations) – tagging/locking controls of unsafe machinery, tools, materials, or equipment, or removing from place of operation
    • 1926.20(a)(1) (2 violations) – contractor requirements
  7. 1926.100 – Head Protection
    • 1926.100(a) (956 violations) – employees must wear protective helmets when working in areas with possible danger of head injury from impact, falling or flying objects, or electrical shocks and burns.
  8. 1926.453 – Aerial Lifts
    • 1926.453(b)(2)(v) (769 violations) – body belts and lanyards 
    • 1926.453(b)(2)(iv) (92 violations) – prohibition on sitting or climbing on edge of basket or using planks or ladders for a work position
    • 1926.453(b)(2)(vi) (16 violations) – boom and basket load limits
    • 1926.453(b)(2)(i) (6 violations) – daily testing of lift controls prior to use
    • 1926.453(a)(2) (4 violations) – field modification of aerial lifts
  9. 1910.1200 – Hazard Communication
    • 1910.1200(e)(1) (1,510 violations) – written hazard communication program
    • 1910.1200(h)(1) (1,170 violations) – employee information and training
    • 1910.1200(g)(8) (496 violations) – maintaining copies of Safety Data Sheets in the workplace and ensuring that they are readily available to employees
    • 1910.1200(g)(1) (331 violations) – having Safety Data Sheets in the workplace for each hazardous chemical
    • 1910.1200(f)(6)(ii) (196 violations) – labeling containers of hazardous chemicals with product identifier and words, pictures, symbols, or combination thereof
  10. 1926.502 – Fall Protection, Systems Criteria and Practices
    • 1926.502(d)(16)(iii) (94 violations) – rigging of personal fall arrest systems to prevent free fall more than 6 feet or contact with a lower level
    • 1926.502(d)(15) (92 violations) – anchorages for personal fall arrest systems
    • 1926.502(d)(17) (57 violations) – attachment points of body belt and harness
    • 1926.502(i)(4) (46 violations) – color coding or marking of covers
    • 1926.502(i)(3) (45 violations) – securing covers to prevent accidental displacement by wind, equipment, or employees

NSC 2018: OSHA announces latest Top-10 Violation list.

Click here for Spanish

At the 2018 National Safety Council Congress & Expo in Houston, Texas, Patrick Kapust, deputy director of OSHA’s Directorate of Enforcement Programs, presented the agency’s top 10 violations for fiscal year (FY) 2018 to a standing-room-only crowd of safety professionals. While the list—particularly its top half—is largely familiar from previous years, one standard made an appearance for the first time.

The data, which covers violations cited from October 1, 2017, through September 30, 2018, is preliminary, and as such, the precise numbers associated with each violation may change. However, the ranking is likely to remain consistent when OSHA releases the final numbers.

The top 10 violations of FY 2018 are:

  1. Duty to provide fall protection (29 CFR 1926.501):7,270 violations. The duty to provide fall protection has been OSHA’s top citation for several years. According to Kapust, common violations under this standard included failure to provide fall protection near unprotected sides or edges and on both low-slope and steep roofs. Many of the citations were issued to roofing contractors, framing contractors, masonry contractors, and new single-family housing construction contractors.
  2. Hazard communication (29 CFR 1910.1200):4,552 violations. Hazard communication has been in the number-two spot for several years. Common deficiencies include lack of a written program, inadequate training, and failure to properly develop or maintain safety data sheets (SDSs). Auto repair facilities, hotels, and motels were among the industries that received many hazard communication citations.
  3. Scaffolds—general requirements (29 CFR 1926.451):3,336 violations. Common violations included lack of proper decking, failure to provide personal fall arrest systems and/or guardrails where required, and failure to ensure that supported scaffolds are adequately supported on a solid foundation. Masonry, siding, and framing contractors were particularly prone to scaffolding violations.
  4. Respiratory protection (29 CFR 1910.134):3,118 violations. Failure to establish a program, failure to perform required fit testing, and failure to provide medical evaluations were among the most frequently cited issues. Auto body refinishing, painting contractors, and wall covering contractors received many citations under this standard.
  5. Lockout/tagout (29 CFR 1910.147):2,944 violations. Many employers cited under this standard failed to establish an energy control procedure altogether, while others were cited for failing to provide adequate employee training, failure to develop machine-specific procedures, and failure to use lockout/tagout devices or equipment.
  6. Ladders (29 CFR 1926.1053):2,812 violations. Common deficiencies included failure to have siderails extend 3 feet (ft) beyond a landing surface, using ladders for unintended purposes, using the top step of a stepladder, and ladders with broken steps or rails. These violations were common among roofing, framing, siding, and masonry contractors.
  7. Powered Industrial Trucks (29 CFR 1910.178):2,294 violations. Violations commonly addressed deficient or damaged forklifts that were not removed from service, operators who had not been trained or certified to operate a forklift, and failure to evaluate forklift drivers every 3 years as required. Forklift violations were widespread across a number of industries, but were particularly prevalent in warehousing and storage facilities, fabricated and structural metal manufacturing, and wood container and pallet manufacturing.
  8. Fall protection—training requirements (29 CFR 1926.503):1,982 violations. Commonly cited issues include failing to provide training to each person required to receive it, failure to certify training in writing, failing to ensure that training is provided by a competent person, and failing to train the proper use of guardrails and personal fall arrest systems.
  9. Machine guarding (29 CFR 1910.212):1,972 violations. Violations included failing to guard points of operation, failing to ensure that guards are securely attached to machinery, and failure to properly anchor fixed machinery. Machine guarding violations occur in many industries, but common targets include machine shops, fabricated metal manufacturing, and plastics manufacturing.
  10. Personal protective and lifesaving equipment—eye and face protection (29 CFR 1926.102):1,536 violations. The final violation is a newcomer to OSHA’s top 10 list and replaces electrical wiring methods (29 CFR 1910.305), which took the number 10 spot for FY 2017. Commonly cited issues included failing to provide eye and face protection where employees are exposed to hazards from flying objects; failing to provide protection from caustic hazards, gases, and vapors; and allowing employees to wear combinations of prescription and safety eyewear that compromise the protective qualities.


OSHA Issues Final Rule Regarding Crane Operator Certification Requirements

Click here for Spanish

The Occupational Safety and Health Administration (OSHA) issued a final rule setting November 10, 2018, as the date for employers in the construction industries to comply with a requirement for crane operator certification.

According to the Trade Release published on November 7, 2018, the final FINAL RULE changed some key items, specifically some important dates.

(If you want to skip the preamble and get right to the regulatory info head to page 184.)

A quick summary of the changes in the requirements is below:

  • Certification is still required; but “Rated Operating Capacity” (ROC) is out. Certification by capacity is no longer be part of the certification process.  Crane operators still have to be certified by type of crane (i.e. Lattice Boom Crawler, Swing Cab Telescopic), but, according to the new rule, they won’t be limited to what cranes they can operate by their lifting capacity. From now on, that will all be in the hands of their employers.
    • Certification of Crane Operators – effective date December 9, 2018
    • Jordan Foster Construction has already implemented the requirement for all of our Crane Operators to be certified, so this ruling has no affect on our current policies in this regard.
  • Employers have a duty to ensure that each operator is qualified and competent to operate whatever crane that operator operates. Rather than relying on a machine’s rated operating capacity as a measure of skill delivered through standardized testing, OSHA has placed the onus of determining an operator’s competency squarely on his or her employer. Thus, in addition to having certified operators, OSHA’s final rule requires employers to “continue to evaluate the operating competency of potential operators and provide training beyond that which is merely sufficient for those individuals to obtain certifications.” OSHA’s guidelines as to “how to qualify” an individual as competent remains to be seen.
    • Evaluation and Documentation – effective date February 7, 2019
    • Jordan Foster Construction is in the process of finalizing our Evaluation and Documentation Procedures for Crane Operators.

Additionally, it should be noted that there were no substantive changes to the existing exemptions (regarding operator training, certification and evaluation) for derricks, side-boom cranes, or equipment with a maximum manufacturer-rated hoisting/lifting capacity of 2,000 pounds or less from the training supervision requirements

According to OSHA, there are currently a limited number of OSHA recognized testing and certification programs.

Below are the OSHA Recognized Crane testing organizations:

  • “Crane Institute Certification”.
  • “NCCER”.
  • “National Commission for the Certification of Crane Operators”.
  • “International Union of Operating Engineers”.
  • “Operating Engineers Certification Program”.

Some of these organizations list companies that will train crane operators in preparation to take the exam. In many cases, contacting each of the organizations above may provide more information as to local training providers in your area.