Some of the more confusing regulations that OSHA has relates to contractors maintaining employee medical records. Questions like, what records? Who has to maintain records? And for how long? These questions and more will be answered below.

Subpart C “General Safety and Health Provisions”

Subpart C “General Safety and Health Provisions” contains section 1926.33 entitled “Access to employee exposure and medical records”. It’s this section that we’ll focus on.

First, the reason for this access to records is to allow the employee or their representatives (such as a union) to review their records for their personal reasons. Also OSHA requires the same access to fulfill it’s obligation under the OSH Act to make improvements in the detection, treatment, and prevention of occupational disease.

Employees who make, maintain, contracts for, (say, through a physician’s office) or has access to employee exposure and medical records are required to make these records available. Therefore, employees who have no such records are exempt. However that is unlikely since records of accidents (for instance, the OSHA form 300 and 301) are considered a medical record.

The types of medical and exposure records are:

• Employment questionnaires which have health related questions.
• Pre-employment or routine medical examinations or physicals, including and physician’s or technician’s notes.
• First-Aid records and/or accident reports.
• Employee medical complaints.
• Any records or test results from tests performed in response to an employee’s exposure to a hazardous substance.
• MSDS’s which have a hazard to human health or any chemical inventory sheets showing what, where, and when hazardous substances were used.

An important item to note is that the results of any drug testing, records of alcohol or drug use counseling programs, records prepared for litigation, or anonymous health insurance statistical records are exempt from the recordkeeping requirements if these records are kept separately from the employee’s other records.

If you, as the employer retain the services of a medical office to perform physicals, worker injuries, and other such duties, this medical office can be responsible for the OSHA recordkeeping requirements. This medical office may withhold information under patient confidentiality, and OSHA recognizes this right. Otherwise these records should be kept accessible at your central office.

How long do records have to be kept?

Well first and easiest, medical records can be turned over to employees who were terminated before one full year’s employment. This ends the employer’s responsibility for that particular employee. However, all other employee’s medical records (with minor exceptions) have to be maintained for the employee’s duration of work plus thirty years. In addition, all other employee’s exposure records (with minor exceptions) have to be maintained for thirty years. Finally, there are some conditions and provisions which can extend the thirty year limit, so for practical purposes, records should be kept indefinitely.

Records requested by employees, their representatives, or OSHA shall be turned over within 15 days, or a reason shall be given the requester as to why there is a delay. The records may be loaned, copies made by the employer, or copies made by the requester (at no cost- typically by copying facilities on the employer’s site).

If it’s a former employee making the request, the employer may ask for the specific dates the employee worked, social security number, and the employee’s name to help in finding the records. In the case of an employee’s representative, a written consent shall be required from the employee. If OSHA makes the request, the employer shall post the OSHA request publicly for 15 days.

Most jobsites encountered have more than one contractor involved. If you’re the only contractor on a particular jobsite, and a CSHO [Compliance and Health Safety Officer] discovers violations, you would receive any citations and fines- simple.

However, the way OSHA treats jobsites with more than one contractor may surprise you.

For instance general contractors who disregard hazards created by other subcontractors onsite may find themselves with the same citation as well! In most cases, immediate [written if necessary] notification of any violations to the controlling contractor onsite to quickly eliminate the hazard will not only limit possible worker injury, but also prevent widespread citations passed out to all contractors onsite regardless of their perceived involvement.

Lets take a look at a hypothetical situation that could occur on a jobsite. Say a construction project has a construction manager and a general contractor. An excavation subcontractor opens up for an 8′ deep foundation, which is then poured. Before backfill is placed however, the plumbing contractor places a 2×10 board across the 8′ deep excavation for a walkway. Various subcontractors then walk across the board to gain access to the building interior to perform work. A CSHO observes the various trades crossing the makeshift ramp, contacts the construction manager, and conducts an inspection resulting in the citation of this single violation.

Question: Which contractors could be cited?
Answer: Every contractor onsite could be cited!

OSHA has defined who on a multiple-contractor jobsite can be cited for a single violation. This comes from the 29 CFR Part 1926.16 (a) through (d) titled “Rules of Construction”. The following applicable statements illustrate OSHA’s position with regard to each contractor’s responsibility concerning safety hazards.

(a) “…the prime contractor and his subcontractors may…make an agreement…thus relieving the subcontractors from the actual but not any legal, responsibility…”

(a) “…In no case shall the prime contractor be relieved of the overall responsibility for compliance with the requirements of the part [the OSHA Act] for all work to be performed under the contract.”

(b) “…the prime contractor assumes all obligations under the [OSHA Act] …, whether or not he subcontracts any part of the work.”

(c) “…[the subcontractor] also assumes responsibility for complying with the [the OSHA Act] with respect to [his portion of work]. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor…shall be deemed to have joint responsibility.”

(d) “Where joint responsibility exists, both the prime contractor and his subcontractor[s] regardless of tier, shall be … subject to [the OSHA Act].”

OSHA has interpreted the above statements to define classes of contractors which can be cited for a violation. There are four types:

The “Exposing Employer”

This is defined as the contractor who by action or inaction allows his workers to be exposed to a hazard. In the hypothetical case described before, any workers crossing the makeshift ramp would allow OSHA to cite [and fine!] their employers- even if their employer had no knowledge of this happening!

The “Creating Employer”

This is defined as the contractor who actually created the hazard. In this case, the plumbing contractor or perhaps the excavation contractor would be determined as having created the hazard by not backfilling, or at least providing a walkway with handrails.

The “Controlling Employer”

This is defined as the contractor who has the authority to ensure that hazardous conditions are corrected. In this case the construction manager would have that role and could be cited for not having the hazard corrected.

The “Correcting Employer”

This is defined as the contractor who has the responsibility to actually correct the hazardous conditions. In this case the general contractor would likely have had that role and could be cited for not correcting the hazard..

As you can see in this example, many contractors can be cited and fined for each violation, depending on a contractor’s involvement- even if peripheral.

Now, what can you do to protect yourself from getting caught “in the net” with other contractors when violations are discovered? Again OSHA has developed a list of items as a defense to a citation- however,

ALL ITEMS MUST APPLY:

• The contractor did not create the hazard.
• The contractor did not have the responsibility or authority to have the hazard corrected.
• The contractor did not have the ability to correct or remove the hazard.
• The contractor notified other contractors in control of the specific hazards to which it’s workers were being exposed to.
• The contractor has instructed it’s workers to:
  • Recognize the hazard.
  • How to avoid it.
  • Where feasible- use protection from it.
  • Remove themselves from the jobsite.

From a review of the above items it would seem that each contractor onsite in effect has to make their own safety inspection of the jobsite prior to, and during the duration of work.

While this may seem impractical, safety is indeed everyone’s concern. Contractors who show written evidence of a practice of notifying other contractors of their potential safety hazards may go a long way in a favorable finding from a CSHO when handing out citations.

Another way to help your position whether you’re a general or subcontractor is to have safety as a regular topic of discussion. Almost every construction project has either weekly or monthly progress meetings. This is an excellent time for you to place jobsite safety on the agenda as an item to be discussed. This is where new hazards seen by any contractor can be brought out, and a plan to quickly eliminate it accomplished. Any new hazardous materials can be determined, the jobsite MSDS sheets updated, and all contractors brought up to speed as to what hazardous materials are onsite [another OSHA requirement].

All contractors onsite should work together to promote safety. At times any contractor can “slip up”, and a word from the general or construction manager can keep everyone onsite not only safe- but safe from possible collateral citations. Looking out for each other should be part of any construction project.

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OSHA regulations are grouped by work activities rather than by types of contractors.

Therefore, contractors cannot review any particular Subpart to understand the applicable OSHA regulations for their particular type of business, but rather would need to review any Subparts that cover the actual type of work they perform. However, while OSHA doesn’t address highway work separately, there are many Subparts of the Code of Federal Regulations (CFR) that apply to highway and roadway construction more than others.

In this article, I will be focusing on three Subparts that are important to roadway contractors which are: Personal Protective and Lifesaving Equipment; Fire Protection and Prevention; and Signs, Signals, and Barricades.

Personal Protective and Lifesaving Equipment (1926.95- 1926.103)

This Subpart affects virtually all contractors. However, some roadway contractors may not seriously consider personal protective equipment by the fact that their workers are outdoors, usually on grade without some of the hazards expected, for example, in building construction.

Section 1926.95 (a) – Criteria for personal protective equipment; simply states the employer’s responsibility to provide personal protective equipment to their workers whenever required by jobsite conditions. One item to note is that even if the equipment used is owned by the employee, the employer is still responsible for it’s adequacy.

Section 1926.100 (a) – Head protection; requires hardhats only when an overhead danger is present. However, a company-wide rule to wear hardhats should be considered for several reasons. First, when all workers have hardhats, it provides a feeling of both unity (much as uniforms) and of safety-mindedness. Second, while there may be no overhead danger at the time, having to consider while working “when” or “when not” to wear hardhats is time-consuming, separate and an arbitrary decision- something you the employer may not want the workers to be making. Finally, lack of hardhats may cause an OSHA inspector to involuntarily slow down and notice an otherwise safe and in-compliance jobsite. Roadway contractors are especially subject to “drive by” inspections by virtue of their jobsite location and exposure.

Section 1926.101 (a)(b)(c) – Hearing protection; is required at specific decibel/ duration levels when experienced on the jobsite. In most cases, roadway operations will require hearing protection. Hearing protection is required for as little as 90 decibels, (which is slightly higher than heavy road traffic) if constant over an eight hour period. There are basically two styles of hearing protection; earmuffs and earplugs. As with most personal protective equipment, earplugs need to be fitted or determined by a competent person. Also, cotton balls or other similar plugs are not recognized by OSHA as having any benefit.

Section 1926.102 (a) – Eye & face protection; is required when the hazard is present. There are several styles of eye and face protection including safety glasses, goggles, and face shields. For those of us who wear prescription glasses, safety or unbreakable lenses alone are not enough. Your safety lenses would need to be in a frame that is rated for safety glasses (which includes the side panels). Check with your optician for safety frame availability. Also, if you’re performing work with hazardous chemicals that could splash into your eyes (such as curing compound, form oils, or other sprays), special goggles with “hooded” ventilation would be required to be used. Face shields are especially useful for protection against particles from grinding or sawcutting concrete.

Section 1926.103 (a) – Respiratory protection; as with the other personal protective equipment, is only required when a hazard is present. Road contractors would normally require respiratory protection when grinding or sawcutting concrete. Any worker in a location where there is a high concentration of fumes or toxic gases would also require a respirator. Note that respirators are required to be form-fitted to each wearer, and need to be fitted the first time under the supervision of a competent person. The typical paper dust mask is not recognized by OSHA as having any benefit. Workers may wear paper dust masks, however they provide little to no protection, and if conditions would have required a respirator, a citation could still be cited by OSHA.

This is part one of a two-part series on Right-of Way working requirements.  Read Part two of this article.

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What are the most frequently cited violations for demolition work? The following are OSHA’s top five followed by suggestions and protective measures you can use to maintain compliance with OSHA’s standard/regulations.

Not performing a written engineering survey of the structure before commencing demolition work.

An engineering survey needs to be performed to determine if there are areas where premature or inadvertent collapse may occur, including any adjacent structures that employees may be exposed to. While this survey is being done, the presence of hazardous materials (asbestos, lead, PCBs, etc.) needs to be noted. When hazardous materials are present they will need to be included and addressed in the work scheduling before the demo work can begin. This knowledge of the structure’s weak points, presence of hazardous materials, contents of equipment within the structure, fire protective measures, etc. is essential for providing a safe work environment for your employees. Employers must have in writing evidence that this survey has been performed.

Failure to provide fall protection for employees exposed to wall openings (greater than 6 feet in height).

OSHA requires the use of fall protection in certain situations where employees will be using stairs, ladders, or working near wall openings. The protective measures found in Subpart M – Fall Protection and Subpart X – Stairways and Ladders will outline the necessary action you need to take to assure employees are protected from falls.

Failure to provide shoring or bracing for walls to prevent premature collapse.

The OSHA 1926.850 regulation outlines that where employees are required to work within a structure to be demolished that has been damaged by fire, flood, explosion, etc., the walls or floor must be shored or braced to prevent premature or inadvertent collapse. Additionally, any wall sections in areas where employees will access that stand more than one story high cannot stand alone without lateral bracing, unless the wall was originally designed and constructed to stand without lateral support, and is in a condition safe enough to be self-supporting.

Failure to properly inspect and maintain stairways and ladders in a safe condition for employee use.

Employers must designate specific passageways, stairs, ladders, etc. as a means of employee access to a structure being demolished and only those designated areas may be used. Other non-designated areas must be closed off at all times. These designated areas must be periodically inspected and maintained in a clean safe condition and be provided with such items as natural or artificial lighting, overhead protection from falling objects etc.
Failure to properly test and remove hazardous materials from within the structure before performing demolition work, and not providing sidewalk shed covers to protect employee entrances to the structure.

As noted in item A), a preliminary test must be performed prior to commencing with the demo work to determine what hazardous materials are present. All hazardous materials found within the structure must be addressed first. Next, OSHA requires safe entrance to the structure to be demolished to protect employees from objects falling onto them as they enter the work area. Overhead shed and/or canopy protection needs to extend at least 8 feet out from the face of the structure and must be at least 2 feet wider than the structures entrance or opening (1 foot wider on each side is permitted). The overhead protection (shed/canopy) must be able to sustain a load of 150 pounds per square foot.

For a more in-depth review of the regulation requirements for demolition work, please refer to sections 1926.850 thru 1926.860 Subpart-T of the Code of Federal Regulations.

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If you think OSHA only issues financial penalties to the employer for safety violations, think again. The Occupational Safety and Health Administration (OSHA) issued in a News Release how they now handle their collection of data that surrounds workplace fatality investigations.

OSHA instructs its compliance officers to review fatality and catastrophe cases for possible criminal prosecution and establish prompt contact with the victims’ families as part of their overall investigation guidelines.

OSHA places high priority on prosecuting the employer whose willful neglect results in worker deaths. Several years ago, in an announcement of OSHA’s updated instructions, OSHA’s Assistant Secretary of Labor Joseph A. Dear stated – “Obviously the Justice Department cannot take on every case we believe has merit. Nevertheless, we intend to carefully document evidence during our inspections and refer to Justice those cases we think demonstrate employer disregard for employee welfare…” says Dear.

As of March 1, 1996, this has been OSHA’s policy. OSHA will contact the family members of victims promptly to discuss the circumstances of the accident or illness. The family members may be asked for information to assist OSHA in their investigation and the families are subsequently kept up to date on the status of the investigation.

As you may already know, employers are required to report to OSHA within eight hours time any catastrophes/accidents that result in inpatient hospitalization of three or more workers and/or fatalities. These types of reports are one of OSHA’s highest priorities. Only situations where imminent danger conditions which are likely to result in the death or serious physical harm to workers rank higher.

OSHA continues to encourage states operating their own OSHA programs to adopt similar procedures for their fatality investigation guidelines.

Though these cases may seem to be rare occurrences, as an employer you should be aware of OSHA’s position on this matter and the severe penalties OSHA and the families of victims can impose on the employer for willful violations such as these that do continue to occur in the workplace.
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Helping contractors to understand and focus on areas where jobsite hazards and citations usually and frequently occur not only gets right to the heart of the matter, but also, results in an increased level of hazard awareness for you and your workers.

Therefore, let’s review some of these areas where jobsite and workplace violations frequently occur and offer some control measures on how to avoid these situations and comply with OSHA’s regulations. To do this, we’ll look at some of the various OSHA reports on “most frequently cited serious violations” for the following: The related Subpart section of the CFR (Code of Federal Regulations) follows each one listed.

• Fall Protection (Subpart M)
• Excavations (Subpart P)
• Stairways and Ladders (Subpart X)

Fall Protection

The three (3) most frequently cited serious violations are:

1. Failure to protect workers from falls of 6 feet or more off unprotected sides or edges, e.g. floors and roofs 1926.501(b)(1); (b)(10); and (b)(11).
2. Failure to protect workers from falling into or through holes and openings in floors and walls 1926.501(b)(4) and (b)(14).
3. Failure to provide guardrails on runways and ramps where workers are exposed to falls of 6 feet or more to a lower level 1926.501(b)(6).

Fall Protection Control Measures:

Again, by means of performing a jobsite hazard survey, you will determine where fall hazards may exist throughout the course of the project, then implement and train your workers on the necessary protective measures prior to startup. Protective measures may include any one or a combination of the following methods: personal fall arrest system, guardrail system, safety net system, positioning device system, controlled access zone, and/or safety monitor. Which method to use depends on the type of fall hazard.

• Wherever possible, use a mechanical lifting device to lift equipment or assembled items into place such as sections of roofing. This will eliminate or reduce the number of workers exposed to falls.
• Working platforms such as aerial lifts or scaffolds provide better working surfaces for your workers rather than walking top plates or beams.
• A hole is defined as an opening 2 inches in its smallest dimension in a floor, roof or other walking/working surface. Covers are to be placed over any holes and marked as “HOLE” or “COVER” to provide warning of the hazard.
• Where fall hazards exist, limit the number of workers in the area to only those who are qualified and necessary. Also, designate an employee as the “safety monitor” where fall hazards exist. This person will observe employees and alert them of any unsafe activity and any hazards that could cause them to trip or fall.

Excavations

OSHA lists twenty one (21) areas of the standard most frequently cited as serious violations (January 1990 to April 1996), they are:

1. Protection in Excavations 1926.652(a)(1)
2. Inspections .651(k)(1)
3. Loose Rock/Soil .651(j)(2)
4. Means of Egress .651(c)(2)
5. Vehicular Traffic .651(d)
6. Inspections .651(k)(2)
7. Water Accumulation .651(h)(1)
8. Loose Rock/Soil .651(j)(1)
9. *Walkways/Guardrails .651(1)(2)
10. Falling Loads .651(e)
11. Adjacent Structures .651(I)(3)
12. *Walkways/Guardrails .651(1)(1)
13. Sloping/Benching Systems .652(b)
14. Adjacent Structures .651(I)(1)
15. Design/Protective Systems .652(c)
16. Shield Systems Requirements .652(g)(2)
17. Shield Systems/General .652(g)(1)
18. Underground Installations .651(b)(4)
19. Hazardous Atmospheres .651(g)(1)
20. Surface Encumbrances .651(a)
21. Protective Systems .652(a)(2)

* Section 1926.651(1)(2) was deleted by the Federal Register number 40730, dated August 9, 1994 (final rule Subpart M of Part 1926 -Fall Protection). Basically, these two sections are now covered under the new fall protection regulations for the construction industry found in Subpart M as noted.

As you can see from the list above, contractors continue to be cited for numerous violations of the excavation regulation. This is partly due to the fact that with most excavation projects there are many elements to consider and have a clear knowledge of such as: soil classifications, shielding/shoring systems, sloping/benching methods, the effects of water accumulation, hazardous atmospheres, protection of existing underground structures/utilities, effects of adjacent structures, adjacent vehicular traffic, employee access in and out of the excavation, inspection methods, emergency evacuation plan, etc., and the list goes on.
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