The audience at this particular conference was a mix of VOSH personnel and safety officers for various construction companies.  My talk is very much directed at contractors and how to better work with the paperwork and the VOSH inspectors.  While having actual VOSH employees in the audience, instead of just contractors, I had to make sure that my approach was more balanced.  I even got a comment from a regional director at VOSH about this more balanced approach.

Even more than the actual talking, I gained some insight (as I do at each of these) from the questions and comments of the attendees.  Many of the attendees have been in the safety game for years and have insightful questions and comments.  They also tend to share their real life experiences.  These experiences help me see the best way to give what I hope is practical advice to my clients.  In short, sometimes I learn as much as I teach.

Another great aspect of these conferences is the friendships made and rekindled (including my pals from Circle Safety).  Many of these folks come every year and many I only see at this conference.  Like the AGC conference, I always meet someone new and always spend some time with some people that I already know and then get to know them better.  As always, getting to know folks in a context aside from attorney-client only helps me be a better lawyer.

I recommend that you attend some of these trade conferences when you can.  You’ll learn something.  I know I did.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

http://documents.scribd.com.s3.amazonaws.com/docs/jg5pb1ilsujg14w.pdf?t=1271778294

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Safety Codes Lack Standards For Critical Crane Repairs ENR: Engineering News Record McGraw-Hill Construction

A post from ENR about yet another safety failure by OSHA. Do we need more regulation or just better enforcement? Join the conversation and let me know.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Just this past Friday, my good friend Tim Hughes (@vaconstruction) posted a somewhat scary update regarding the removal of the owner exception and expansion of the rules to commercial construction.  Tim gives a great analysis and also links to several prior posts at his Virginia Real Estate, Land Use & Construction Law blog regarding the topic.

Last Tuesday, another good friend and construction attorney in Massachusetts, Andrea Goldman (@andreagoldman) posted regarding the new documentation requirements for contractors.  She also linked to a very helpful post from remodeling expert Shawn McCadden relating to these requirements.  Andrea also was kind enough to guest post her wonderful thoughts relating to the important legal issues raised by this new lead paint regime.

For a slightly more contrarian, yet no less helpful, opinion piece on the economic impact of these rules, please check out my good friend Rick Provost’s (@remodelthink)  lead rule perspective at the Profitable Contractor blog.

For the safety perspective, check out the Circle Safety blog (@circlesafety) for their take on this new rule.

I hope that you find these resources helpful.  I like and respect all of the folks to whom I have linked here and would only be reinventing the wheel relating to the lead paint renovation rule by discussing this further.

I would love to hear your comments and suggestions relating to other resources relating to this new rule and its impact on contractors and subcontractors.  Please join the conversation on this timely topic.

UPDATE: The Homeowners Resource Center has a great update on the regs as well, check it out.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

On Thursday, April 22, 2010, I will be speaking on the topic of Construction Contract Pitfalls to the local chapter of the ASPE.  Here’s the brochure for more details.

On June 2 and 3, 2010 I will be speaking at the 2010 Annual VOSH Occupational Safety Conference on the topic of Ethical Considerations for Safety Officials. Here are the details.

I will still be speaking (along with Scott Wolfe, Shari Shapiro and Tim Hughes) at the now rescheduled for fall Green Legal Matters conference on the topic of LEEDigation: The Impact of LEED on Construction Litigation and Practice.  For more on this, click here.

I will also be authoring the Virginia Construction Law Survey for the University of Richmond Law Review.  This will be published at a date to be determined.  If any of you Virginia construction attorneys have any recent (post 2008) developments that you think should be included, please let me know.

I thank all of you who have offered me opportunities to publish in your publications.  I will be sure to link to those articles at the appropriate time.

Thanks again to all of you who regularly read Construction Law Musings and post in the Guest Post Friday series.  I truly appreciate all of your readership and efforts.

UPDATE:  I have just gotten confirmation that I will be speaking at the ASSE Region VI Professional Development Conference, check out the lineup here.

UPDATE Pt. 2: The Green Legal Matters Conference has been postponed to September 2010.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday, Musings has the pleasure of welcoming Jan Thomas, President of Circle Safety & Health Consultants, LLC for her second Guest Post. Jan is an occupational safety and health professional with doctorate, over 30 years of experience at the federal, state and university levels, and professional certification. Her background includes regulatory compliance, accident and fatality investigations, development of policy and procedures, program management and extensive experience in education, training, research, technical writing, forensic consultation and expert witness testimony. She is also a friend of mine and can be found on LinkedIn or by e-mail.

We usually think about safety on construction sites with the focus on workers. The federal or state OSHA jurisdiction on commercial construction begins where an employer-employee relationship exists. In addition, CPL 2-0.124 –Multi-Employer Citation Policy dictates overall jobsite safety between contractors. So, when we need some basic guidance on safety we grab the OSHA standards.

But what about safety of the public – on adjoining streets or sidewalks, or across the fence in the school yard, or even across the intersection? What about invited visitors on site? OSHA is almost silent.

Some of the OSHA rules for protecting workers do secondarily protect the public. For example, OSHA requires placarding of parked equipment, barricading of open trenches or the swing-radius of a crane, and using flaggers at traffic work zones. But these are few and indirect.

What may be needed is an actual plan for public safety, especially at sites where the public is ever present (city streets) or in high-risk areas (near schools). Common sense may help guide such a plan but you may want to also check out a little-known consensus standard – ANSI/ASSE A10.34-2001 (R2005) Protection of the Public on or Adjacent to Construction.

Here is a quick review. The public is defined as “All persons and property not affiliated with the construction project. This includes invitees to the construction project who are not employed by the project constructor or contractors.” What about trespassers? They are excluded from the definition of the public. But, be sure to put up those No Trespasser signs to defend your property rights.

The consensus standard provides guidelines for developing a site-specific public hazard control plan and emergency action plan. Fourteen specific hazards are identified and the standard’s appendix provides a checklist. The consensus standard is fairly short but is a great place to start your thought process for extending safety beyond the boundaries of your construction site.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Image via Wikipedia

The world of the Owner, Contractor, Subcontractor “straight line” project model is long gone. Increasingly complex construction needs for commercial owners require the services of numerous trades, and even multiple “prime” contractors at times, to perform the various stages of construction.

Because of the complex and multi-employer nature of the modern commercial worksite, as a contractor, you may no longer be responsible only for the safety of your own employees. Depending on the state in which your project is being built, you, as a general contractor, may be responsible for hazards at your worksite that you did not create. On federal job sites (or in states that have merely adopted the federal OSHA standard), one rule applies. In some states that have their own safety regulations, another rule applies.

Under the Federal OSHA guidelines, the state regulations must be at least as stringent as those of the Federal safety regulations. This flexibility allows states to impose stricter (though not more lenient) rules upon construction site contractors. While this flexibility allows state safety officials to better tailor their policies, it has caused confusion in the multi-employer realm.

The 2007 Summit Contractors decision of the Occupational Safety and Health Review Commission (OSHRC) has caused a conflict between the federal multi-employer policy regarding who is responsible for a violation and at least one state’s (Virginia’s) multi-employer policy. The Summit Contractors decision by the OSHRC limited the scope of responsibility for a safety violation to employers that either created the hazard or that exposed its employees or others to the hazard. In a change from prior policy, the OSHRC exempted those employers that merely supervised the job site and had no part in either creating the hazard or exposing employees to the hazard. In short, under federal regulations, mere control of a job site does not expose an employer to OSHA liability.

By contrast and example, the Virginia Occupational Safety and Health (“VOSH”) regulations expose the following four categories of employer to liability for the same unsafe condition: 1. The “Creating Employer” who actually created the hazard, 2. The “Controlling Employer” who has responsibility over the site and has authority to require correction of unsafe conditions for the entire site or the specific area of the site at which the VOSH inspector finds the hazard, 3. The “Correcting Employer” who is responsible for the correction of any hazard, and 4. The “Exposing Employer” who exposes its employees to a hazard whether created by it or not.

In practical terms, this means that, as a general contractor, construction manager, or large subcontractor with supervisory authority over other trades on a construction site, depending on the jurisdiction (state or federal), you could be held accountable for a safety violation caused by other employers over which you have supervision, by contract or otherwise. Under certain circumstances in some jurisdictions, notably Virginia, even an architect or engineer can be cited as a “Controlling Employer.” Therefore, you must exercise reasonable care to assure that the site under your control complies with the applicable standards and do what is prudent to assure job site safety.

The one uniform rule in all jurisdictions is that the creating or exposing employer will be cited should an inspector find a violation. Therefore, any employer on a job site, whether under the federal regulations or a state analog, must assure the safety of its employees both by assuring compliance with the safety standards set forth by OSHA or its corresponding state agency and by keeping its employees out of harms way.

As a subcontractor there are a few things that you can do to minimize the possibility of a citation for the actions of others. First and most obviously, assure that your work is performed safely and that you do nothing that would cause a hazard for either your employees or those of other trades working in the same area of the site.

Second, make sure that you know what trades are working in the same site area where your work is being performed and inform those trades of what safety measures need to remain in place even when your personnel are not present. Also, if informal communication does not cause the employees of others to follow safety measures implemented by you, a written communication to the general contractor or other controlling employer(s), coupled with a diligent effort to correct situations caused by others, will go a long way toward avoiding, or at the very least minimizing, a citation.

Third, should your personnel need to work around a hazard that is in violation of the safety standards, do what you can to correct the situation and reduce employee exposure to the hazard and notify the appropriate controlling employer to correct the situation. As a last resort, and if the situation is not corrected through other methods, remove your employees from the site and inform the general contractor why, both verbally and in writing.

Fourth, assure that you have documented your efforts to remain in compliance. Such documentation could be the difference between an overturned citation and an enforced one.

In conclusion, the multi-employer worksite rules can be confusing and at times contradictory. However, following the practical advice found in this article and consultation with a knowledgeable attorney relating to your safety program can minimize your risk of citation.

Update: Just recently, the 8th Circuit Court of Appeals overruled the OSHRC and aligned the Federal and Virginia Rules regarding supervisory employers. The Court did however indicate that the OSHA regulations may need a thorough review and possible overhaul. I will keep you posted as the progresses. For an EHS Today article on the decision, click here.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.