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Don't Take the Fall :
Avoiding Injuries, Resulting Liability and OSHA Penalties

Timothy R. Hughes, Esq.
Hughes & Associates, P.L.L.C.

Construction sites are extremely dangerous places. Construction work presents the possibility of catastrophic injuries or even death to workers and bystanders. In addition to the moral need to protect the life, health and safety of workers and bystanders, mason contractors need to understand the potential financial impact of work related injuries. Injured workers and bystanders cause lost production, liability claims, lawsuits and increases in insurance premiums or even difficulties in obtaining insurance. Finally, injuries can trigger OSHA investigations and possible regulatory penalties.

In order to attack the problem of safety for masons on construction sites, we first examine OSHA publications that categorize and analyze sources of construction injuries. Next, we review the most common OSHA violations for areas of particular focus. Finally, we offer some suggestions for developing a culture of safety within a construction company.

Understanding the Issues

In November 1990, OSHA released its Analysis of Construction Fatalities — The OSHA Data Base 1985-1989. While the analysis was originally conducted to evaluate the impact of demographic factors on the prevalence of injuries, the publication includes some interesting facts regarding site injuries.

For the period of 1985-1989, 33% of all construction fatalities were the result of falls. What may be surprising is that 8% of the fall fatalities occurred in the masonry/stonework/tile setting/plastering trade classification.

In the same publication, OSHA provided a breakdown of the relative heights of the fatal falls. Roughly 25% of fatal falls occurred from 21 to 30 feet. Another 24% occurred from 11 to 20 feet. Finally, an additional 8% occurred from six to 10 feet. Thus, a full 57% of fatal falls occurred at 30 feet or less. Therefore, masons need to be cognizant of their surroundings and safety considerations, and take safety seriously at all times.

Avoiding Common Violations

OSHA analyzed the most prevalent violations found in investigations during 1991 and compared them with preceding years in The 100 Most Frequently Cited OSHA Construction Standards in 1991: A Guide for the Abatement of the Top 25 Associated Physical Hazards (reprinted March 1995). While an exhaustive analysis of each violation and associated regulation is impossible here, a look at some of the most prevalent violations can act as a starting point for mason contractors concerned with injuries, liability and potential OSHA violations.

Program Violations

The top six most common violations relate to so-called "program" violations rather than physical conditions. These include the failure to properly develop, maintain and post hazardous material information, the failure to conduct proper hazardous material training, and the failure to post OSHA compliant posters and the like. The sixth most prevalent violation was a failure of employers to instruct each employee in the recognition and avoidance of unsafe conditions as required in 29 C.F.R. 1926.21(b)(2). Interestingly, the top six program violations totaled 26.2% of all total OSHA violations in 1991.

These program violations are clearly avoidable through establishing an effective safety program, conducting regular safety inspections, and adequately training all employees. As such, work site safety needs to start from the top of the company down, and must become an integral part of a company's culture.

Physical Violations

As with the prevalence of program violations, the physical condition violations found by OSHA offer clear guidance to mason contractors for points of emphasis. The most common physical violation was a failure to guard open-sided floors and platforms in violation of 29 C.F.R. 500 (d)(1). You can avoid violating this standard by simply affixing proper guardrails in any open-sided floor or platform more than six feet above ground level.

The second most common physical violation was inadequate head protection. Workers in areas of possible head injury from impact with falling or flying objects are required to wear appropriate compliant headgear. Injuries resulting from lack of headgear are clearly avoidable.

A full 15% of all OSHA physical violations related to scaffolding violations. The most common failure was a lack of compliance with guardrail specifications for tubular welded frame scaffolds. Guardrails and toe boards are required at all open-sides and -ends of scaffolds more than ten feet above the ground or floor. Even where guardrails were installed on the sides, they were often missing on the ends of the scaffolding triggering a violation. Use of cross braces (X braces) does not equate to the presence of a guardrail. The prevalence of violations, coupled with the threat of falls and the ubiquitous use of scaffolds in masonry operations point to scaffolding as a critical area of focus.

Additional scaffolding violations are legion and include failure to install proper safety nets, improper bracing, lack of safe access for scaffolds, and lack of compliance with scaffold guarding specifications.

Simple Suggestions for Safety Improvement

The OSHA web site, located at www.osha.gov, is a fantastic source of information and contains numerous publications.

Next, develop and implement a compliant safety program. Special attention needs to be paid on an on-going basis to training each employee on safety concerns in a general manner, and also to provide training specific to the safety concerns of each individual job. Each job site needs a responsible person charged with maintaining site safety. Finally, beyond the generalized attention to program requirements for safety, your company needs to have someone responsible who knows the applicable regulations and requirements.

While all this effort may seem excessive, you should keep in mind the critical interests involved. In developing these programs and complying with OSHA regulations, you are protecting the lives of your employees, other workers on the site and any passersby. Installation of that toe board on the scaffolding may take a little time, but you may protect an innocent bystander from being pelted by a dropped tool from a scaffold — as well as you from a cut-and-dry lawsuit. Also, you will be taking serious strides to reducing OSHA penalties for your company. Thus, these efforts are certainly time well spent.