18-Year-Old Killed in Fall: Why We Need OSHA, Part 843,053,495

All workplace deaths are tragedies and the vast majority are 100% preventable if OSHA standards are complied with.  In other words, OSHA saves lives.

Nevertheless,  you’ve all heard the whining:

“OSHA is too confrontational!”

“Our employees are like family members. We would never do anything to put them in danger!”

“All businesses need is advice and assistance and they’ll do the right thing.”

“OSHA fines put companies out of business and kill jobs”

Blah, blah, blah

Most OSHA investigations are pretty straight-forward: injury, death or just and inspection, followed by a citation covering whatever violations are identified.

But sometimes we have a case that shows in bright, shining headlines why an agency like OSHA is needed: And preferable a much larger, better funded agency with significantly higher penalties.

Such is the case of Troyer Roofing and Coating of Jamesport, Missouri.

On March 29, 2023, and 18 year old employee of Troyer fell more than 22 feet off of a roof. According to OSHA, he suffered left shoulder deformity; bleeding from nose, mouth, and ear; laceration above ear; and a collapsed lung. He lapsed into a coma, and died five days later.

The details of his death are tragic — and infuriating:

• Troyer failed to ensure that employees used fall protection. The company had fall protection available, but allowed employees to decide if they wanted to use it.
• Troyer failed to train employees on how to use fall protection.
• After the fatality, the employer allowed other workers to go back to work on the same roof, again without fall protection.
• Troyer did not report the employee’s hospitalization to OSHA.
• OSHA had cited Troyer for similar fall protection violations in 2015.
• Troyer also did not train employees on proper forklift operations, failed to provide workers with face and eye protection, and did not have a written hazard communication program for sealants and other chemicals the employer used.

Just to make this clearer, we have here a long-established company that knows about fall hazards (they’ve been around a long time and have been cited before). A company that has fall protection equipment available but doesn’t require that employees use it, and doesn’t even train its employees about the hazards of falls or how to use the equipment.

A company that is so upset about a death on their watch that they respond by sending employees back on the same job, again, without fall protection.

After the fatality, the employer allowed other workers to go back to work on the same roof, again without fall protection.

This is a question that we could never ask publicly when we were running OSHA, but why is this company allowed to stay in business?  And why aren’t the owners in jail?

Now, Troyer Roofing and Contracting is not a little company composed of a couple of guys in a pickup truck. According to the company’s website, Troyer Roofing & Coatings is “a 3rd generation family owned and operated business and offer 20+ years of roofing industry expertise.”

Apparently that doesn’t include safety expertise. For those that don’t know, OSHA requires the use of fall protection system for any workers worker more than 6 feet from the surface. And workers are required to use fall protection. The employer is not allowed to give employees the choice of using fall protection.

Six months after killing an 18-year old kid who wasn’t using fall protection, Troyer’s website still features a picture of a worker on a roof without fall protection.

Oh, and just to add insult to injury death, the photo heading this post — the one with workers on a roof without fall protection? This comes from Troyer’s website. Troyer’s website today. 6 months after they killed an 18-year-old kid who wasn’t using fall protection.

OSHA proposed penalties of $205,369, including a $156,259 willful violation. It is unclear at this time whether Troyer is contesting the citation.

According to OSHA’s press release:

“Troyer Roofing & Coatings could have prevented this young worker’s death by requiring their employees to use fall protection equipment. Disturbingly, the employer allowed other workers to go back to work on the same roof without fall protection,” said OSHA Area Director Karena Lorek in Kansas City, Missouri. “Employers have an obligation to comply with requirements that are designed to prevent tragedies such as this from occurring.”

What The Problem?

As readers of the Weekly Toll know, the death of this un-named 18-year-old is not an exception. An average of 100 workers die in American workplaces every week. And it’s also not an exception that I can’t find his name. I searched, but could not find any press mention of the incident or his death, and like most workplace fatalities, it did not appear in the Weekly Toll. Few will know how he died or how it could have been prevented.

What other problems do we see here. First, giving employees a “choice” about whether or not to use fall protection equipment is not really a thing.

To start with, it’s against the law. The Occupational Safety and Health Act (OSHAct) requires employers to provide a safe workplace, mostly by complying with OSHA standards.  Period. No choice. No exceptions.

Giving employees a choice about whether to use fall protection is against he law. The Occupational Safety and Health Act requires employers to provide a safe workplace, mostly by complying with OSHA standards.  

There is nothing in the law about giving employees a choice about whether they want to work in a safe workplace or not.

Now, some may argue, “Hey, it’s their body, it’s their lives. They’re grown-ups and should be able to use or not use the safety equipment if they want to. I’m not stopping them.”

The problem here, aside from the fact that it’s not legal, is that it’s not really a free choice. They employer may say the employee has a choice, but it may also be clear to workers that the employer frowns on the use of safety equipment that may cost the employer money and “waste” time. There may also be a peer pressure, macho thing going on: “I’m too much of a man to use that sissy safety equipment.”

And, workers may simply have not been trained adequately to even understand the deadly hazards of even relatively short falls or how to prevent falls. They may think that, hey, if I’m careful, I’ll be fine. Or they may not think a six-foot fall is that dangerous.  (If falling “just” six feet doesn’t sound like much to you, go climb up on a six foot high wall and let yourself fall off backwards onto a hard surface littered with construction equipment and debris. Yeah, I didn’t think so.)

And there is no excuse for any construction contractor to claim they didn’t know about OSHA fall protection requirements.  OSHA frequently reminds employers (as it did in the Troyer press release) that “OSHA’s stop falls website offers safety information and video presentations in English and Spanish to teach workers about fall hazards and proper safety procedures.”

Even, new, small companies (which Troyer is not) have no excuse to claim ignorance. Every state has an OSHA funded Onsite Consultation program that provides assistance for small and medium size businesses.

What is to be done?

Failure to use fall protection is not a rare occurrence. Walk around almost any neighborhood or commercial area pretty much any day of the week and you’ll see workers on top of houses and commercial buildings who are not using fall protection.  Have they been trained about the hazards of working at height? Was fall protection made available?

But what can a tiny agency like OSHA do about it. Inspectors can’t check in on every construction site, large or small, in the country every day. At current funding levels, if OSHA were to inspect every workplace in the country just once, it would take 195 years.

We’ve discussed here deputizing citizens to report violations to OSHA. Sort of do-it-yourself safety enforcement. And more people should do that.

But what if everyone in the country reported every obvious, visible workplace  violation to OSHA — no fall protection, deep unprotected trenches, exposure to clouds of silica dust from sawing rock or concrete?  The agency would be overwhelmed and unable to address any more than a fraction of notifications.

Sounds obvious that a major increase in OSHA’s budget and more inspectors would save lives, right?

So why are House Republicans are proposing a 15% cut in OSHA FY 2024 budget (with an 8% cut as a down payment, just to get a continuing resolution passed so the government doesn’t shut down on October 1.)

It’s just as obvious that even without Republican attempts to sabotage the agency, OSHA will never have enough inspectors to reach more than a small fraction of the nation’s workplaces. So if it can’t be in most workplaces, the agency needs to be able to send a strong message to every employer — through hard-hitting press releases, high penalties, and where possible, criminal prosecutions.

Penalties totaling $205,369 are not nothing, but penalties ten times that amount would send a much stronger message to construction companies across the country.

In addition, because this was a case where a fatality was caused by a willful violation, the Occupational Safety and Health Act allows the agency to pursue a criminal prosecution. Prosecutions under the OSHAct are pursued by the Justice Department. They’re rare, because even if there is a conviction, it’s only a misdemeanor, not a felony. And the Justice Department often does not want to go through all the work of a criminal prosecution, just for a misdemeanor.

Nevertheless, the real prospect of prison time can be a powerful message to send to America’s employers.

And In Conclusion

No worker should die in the workplace. Especially an 18-year old, just starting out on life. And no employer should willfully ignore basic safety precautions and violate the law without the sure prospect of severe punishment. We’ve seen rare cases of criminal prosecutions and imprisonment around the country, but they’re few and far between. OSHA penalties are too low to impact most medium size and large companies, and their inspector too few to get to more than a tiny fraction of American workplaces.

We’re quickly approaching another election season where the President every member of the House of Representatives, one-third of the Senate and many state legislators are facing re-election.  I’d wager they almost never get a question about how well the federal government is protecting workers.

A worker’s best protection is belonging to a union that will educate and protect its members, but only a small number of American workplaces are unionized. OSHA is attempting to ensure that even non-union workers can better use their rights under the OSHAct, but even that step is generating enormous opposition from Republicans and the business community. Likewise, the National Labor Relations Board has made major steps to make it easier for workers to organize. Those efforts have also generated attacks from the business community and Republicans.

We’re quickly approaching another election season where the President every member of the House of Representatives, one-third of the Senate and many state legislators are facing re-election.  I’d wager they almost never get a question about how well the federal government is protecting workers.

Maybe they should be getting more.