Is there a visit from the Occupational Safety and Health Administration (OSHA) in your future? According to the U.S. Department of Labor, the odds of an OSHA inspector showing up at your jobsite may increase in coming years.
In April, Labor Secretary Alexander Acosta told a House Appropriations subcommittee that OSHA hired 76 new inspectors in the 2018 fiscal year, and he expects the number of jobsite inspections to go up as these new inspectors finish training and start conducting field inspections. (See “Getting Ready for an OSHA Visit” on page 3 of this issue.)
This increase in inspections is one of several recent safety developments that contractors should be aware of.
New Rules, Changing Risks
In January, OSHA released the final version of its new electronic recordkeeping rule, “Recording and Reporting Occupational Injuries and Illnesses” (29 CFR 1904). The final regulation was published after a nearly two-year delay to address concerns that industry groups and others raised when the first version was unveiled in 2017.
Under the new rule, businesses with 20 or more employees in certain industries—including construction—must electronically submit information from their OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) to a designated OSHA website. The deadline for submission is in early March of each year.
The original version of the rule also would have required businesses with 250 or more employees to submit their OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and individual injury and illness incident report forms (Form 301) online as well. But OSHA removed that requirement after industry groups and privacy advocates pointed out it could result in employees’ personal information being revealed publicly.
The new rule also strengthens provisions that prohibit employers from retaliating against employees for reporting a workplace injury. Such retaliation was already against the law, but under the new regulation, OSHA no longer needs to wait for an employee to file a complaint before it can cite an employer for alleged retaliation.
Another recent safety-related development emanated from a source outside of OSHA—the U.S. Court of Appeals for the 5th Circuit in New Orleans. In 1981 this court had ruled that OSHA regulations protect only an employer’s own employees. This was interpreted to mean that if a subcontractor’s OSHA violations endangered only its own employees, a general contractor could not be held liable—the liability was the subcontractor’s alone.
But late last year the court decided that, due to a subsequent U.S. Supreme Court ruling in an unrelated case, its previous position was no longer valid. In that case, the Supreme Court ruled that courts generally should defer to an agency’s interpretations of its own regulations.
The Fifth Circuit found that OSHA could indeed choose to hold a general contractor liable for a subcontractor’s violations because the GC was the “controlling employer” and had the “general supervisory authority” over the worksite. Industry observers are watching closely to see how this new precedent is applied in other cases.
Beyond Regulatory Compliance
Avoiding OSHA fines and penalties is worthwhile, of course, but contractors have even more important reasons to run a safe jobsite. Foremost among these is a company’s fundamental responsibility to provide a safe work environment, coupled with owners’ and executives’ basic humanitarian concern for their employees’ welfare.
In addition, safety is just good business. Accidents can trigger significant avoidable costs, including medical expenses, legal fees, and higher insurance premiums. A safety-conscious worksite is more productive, too, and a strong commitment to safety also can attract and retain skilled workers—a critical concern these days.
Accidents can diminish your ability to compete for new jobs as well. Project owners often inquire about bidders’ safety records, including lost-time accidents, experience modifiers, and workers’ compensation claims.
Eliminating workplace injuries and deaths is an ongoing priority for the industry. Every year, the construction industry accounts for more workplace fatalities than any other sector of the economy.
According to the U.S. Bureau of Labor Statistics, a total of 4,674 fatal workplace injuries were reported in private industry in 2017 (the latest year for which totals are available). One out of every five of those—971 fatalities—occurred in the construction industry.
OSHA, trade associations, equipment manufacturers, and private vendors produce numerous programs and training materials. All have the same goal: to make construction sites safer places to work.