How often to you drive by workers up on the roof of a new construction or re-roofing who are not using fall protection. From my experience, it’s somewhere around ALL THE TIME!!! Well OSHA is not amused. . In late 2021, the Bureau of Labor Statistics reported that 351 of the 1,008 construction workers who died on the job were deaths related to falls from elevation. OSHA regulations state that fall protection must be used in construction whenever workers are more than 6 feet off the ground and OSHA’s website is full of information about how to prevent falls.
Just this month, OSHA has issued several large citations against companies who ignore fall protection (and other hazards and repeatedly endanger — and sometimes kill — their workers. And none of these citations are “Oops, my bad. I’ll never do it again” situations. These employers knew the law. They knew how to protect their employees. They knew they were endangering their workers. In some cases their workers died. And they didn’t care.
None of these citations are “Oops, my bad. I’ll never do it again” situations. These employers knew the law. They knew how to protect their employees. They knew they were endangering their workers. In some cases their workers died. And they didn’t care.
Earlier this week, OSHA cited ALJ Home Improvement Inc. for $1,343,363 in penalties after OSHA investigated the the New York company killed its second worker in three years. OSHA opened the inspection on Feb. 8, 2022, when a worker fell from the roof of a three-story residential construction project in Spring Valley. In February 2019, another company employee died in a fall at a Kiamesha Lake work site. OSHA has inspected ALJ Home Improvement six times since 2019, issuing 21 violations and levying $299,425 in fines. Its infractions include multiple willful fall protection and eye protection violations, cited most recently in November 2021.
“ALJ Home Improvement continues to ignore the law and callously exposes its employees to falls from elevation, the construction industry’s deadliest hazard,” said OSHA Regional Administrator Richard Mendelson in New York. “Their repeated willful violations are evidence of an indefensible and inexcusable pattern of disregard for the safety of their employees. OSHA will continue to take strong enforcement actions against such employers.”
The agency determined that ALJ failed to provide fall protection training or ensure effective fall protection safeguards were used. They also failed to provide eye protection for employees using pneumatic nail guns, exposing them to the risk of serious eye injuries.
The employer’s knowledge of fall and eye protection requirements, and its deliberate and recurring violations of these standards, led OSHA to issue egregious citations for each instance an employee at the Spring Valley site was exposed to the hazards. In total, ALJ Home Improvement was cited for nine willful and three serious violations.
And in another failure to heed a warning from OSHA, Premier South Roofing LLC, a Baton Rouge, Louisiana, roofing contractor faces $249,323 in proposed penalties after a 22-year-old worker fell 30 feet to his death through a skylight while repairing and replacing a roof. Premier has been warned. On Feb. 2, 2022, an OSHA inspector observed five Premier South employees working on a roof without adequate fall protection, and cited the company for failure to provide fall protection and a repeat violation for failure to provide ladder safety.
Cite ’em before they kill
Happily, OSHA often gets to workplaces before a workers is killed or seriously injured.
Earlier this week, OSHA issued a $224,000 citation to Benny Troyer Roofing and Trail Roofing LLC working at heights of up to 20 feet above the ground without adequate fall protection while Troyer was on-site at an Akron, Ohio home under construction. Inspectors also found the employer allowed workers to use ladders improperly and failed to enforce the use of head, face and eye protection. The inspection on Feb. 28, 2022, identified one repeat safety violation, two willful violations and one serious violation.
The current penalties are top of $108,318 in previously unpaid penalties. OSHA cited Benny Troyer Roofing and Trail Roofing LLC for similar violations in 2011, 2012, 2013, 2016, 2017, 2019 and 2021.
“These concerns are not new for this company. OSHA has explained abatement and safety procedures to Mr. Troyer repeatedly, but he continues to defy federal inspectors and gamble with workers’ lives,” said OSHA Area Director Howard Eberts in Cleveland. “No other cause kills more construction industry workers than falls from elevation. OSHA will hold this employer and others accountable for failing to provide safe working conditions.”
On August 8, OSHA cited VD Construction Services of Hyattsville for three willful and three serious violations, proposing $87,429 in penalties for failing to provide workers with required fall protection equipment, using extension ladders in an unsafe and improper manner, and failure to ensure that workers using pneumatic tools had eye protection at a construction site in Pennsylvania. The company has been cited for 136 willful, repeat, serious and other violations in 20 workplace safety inspections since 2020.
What is to be done?
Clearly current OSHA citations aren’t sufficient to deter some repeat violators. Under certain conditions, OSHA can issue large willful or repeat or egregious violations. But those can be legally burdensome, and as we can see, the employer can treat them as a cost of doing business, or even just ignore them and hope it will be a while before the feds catch up with them.
In the case of ALJ, OSHA pursued “egregious” or “violation-by-violation” citations. That means instead of issuing one blanket violation for failure to provide fall protection, OSHA issues a violation for each worker exposed. In this case, OSHA issued 9 willful violations, some for failure to provide fall protection, and some for failure to provide eye protection.
OSHA’s egregious policy states that “The large proposed penalties that accompany violation-by-violation citations are not, therefore, primarily punitive nor exclusively directed at individual sites or workplaces; they serve a public policy purpose; namely, to increase the impact of OSHA’s limited enforcement resources.”
Also, because an ALJ employee was killed, and the death was associated with willful violation for failure to provide fall protection, the Department of Justice can pursue criminal charges. DOJ is often reluctant to do that however, because the process is long and resource-intensive, and under the current language of the Occupational Safety and Health Act, a conviction would only be a misdemeanor.
This is all good, and $1.3 million is a pretty substantial fine for OSHA, but ultimately real deterrence will require much higher OSHA penalties — especially for willful and repeat violations — and strong criminal sanctions as proposed in the Protecting Americas Workers Act.
Thanks Jordan, for your excellent observations. I think effectively reducing the number of falls from height will be a perennial enforcement problem for OSHA. With about 8 million US workplaces and 135 million workers, no amount of attention to the issue will ever reach more than a tiny percentage of violators. Employers who are cavalier about fall protection don’t weigh the cost of compliance against the cost of an accident; they weigh the cost of compliance against the miniscule chance of getting caught. That calculation will never convince them to adequately protect their workers.
There are other ways to drive compliance beyond just OSHA civil penalties: potential criminal liability, tort liability, disbarment, tax and licensing fees, etc. It will likely take a combination of these, applied consistently and comprehensively, to make a lasting dent in the number of fatalities due to falls from height.
Sometimes, but not often enough, county District Attorneys will deal with business owners who kill. One such example was from my former home area of Akron Ohio at the Timber Top apartment complex.
www.beaconjournal.com/story/news/crime/2019/09/06/contractor-goes-to-prison/3398142007/
“Contractor goes to prison
Construction company owner did not provide safety gear that could have prevented fatal plunge
…On his first day working for a local contractor, Gerardo “Jerry” Juarez was excited about his new job.
On his second day, the Akron man fell off the third-story roof he was repairing, receiving fatal injuries.
James D. Coon, the owner of the company Juarez worked for, failed to provide safety equipment to Juarez that could have prevented his fatal plunge in November 2017.
“He knew his responsibility — and still neglected to follow those rules,” Mison Woo, Suarez’s wife, said tearfully Friday afternoon following Coon’s sentencing.
Coon, 53, the owner of the now-defunct James Coon Construction, pleaded guilty July 24 to involuntary manslaughter and worker’s compensation fraud, both felonies.
Summit County Common Pleas Judge Alison McCarty sentenced Coon on Friday to three years in prison. He faced up to 4½ years.”
Living in Loudoun County, VA, I’m never see offers or framers in new hosing developments using any, never mind effective, falls protection in new housing construction. Most of the workers are LatinX with unknown immigration status. OSHA, federal and Commonwealth, would be pretty busy here.