It has often been said, “In the eyes of [insert entity, including OSHA], if it isn’t written down, it didn’t happen.” Regardless of whether this view is true or false—or, more likely, might represent a cynical overgeneralization, it does highlight the importance of creating and maintaining accurate written jobsite records. Below we take a look at how creating and maintaining accurate jobsite records in connection with various common construction activities can help minimize a contractor’s potential OSHA exposure.
TRAINING
Many OSHA regulations require that employers conduct certain employee training and specify the type of training to be conducted. If a contractor fails to keep the written training records, it will likely encounter problems convincing OSHA that (i) the training actually occurred and/or (ii) the nature and particulars of the training. A contractor could also be cited for violating the applicable training standard. As a result, your training records should include the date(s) of the training, who attended, who gave the training, and copies of any written handouts/materials utilized.
The content of the training is no less important and should be consistent with the applicable OSHA regulations. For example, if you plan to train your employees on using floor hole covers, the training—and your workplace directives, including your health and safety plan—should be consistent with 29 CFR 1926.502(i). In that case, the training should indicate that any floor hole covers should not only be “secured” when installed but also “be color coded” or “marked with the word ‘HOLE’ or ‘COVER’ to provide warning of the hazard.” If an OSHA inspector discovers an apparent violation related to a floor hole cover, the employer can show that its training was consistent with and took into account the applicable OSHA regulations. Going one level further, an employer should also provide training on any site-specific hazards as the particular site conditions may so warrant and document that training.
Finally, conducting ongoing training—and documenting those efforts—is of importance as well. Indeed, a well-known OSHA pet peeve is showing up at a site and finding an employer’s health and safety plan sitting on a shelf covered in dust. This alone will strongly suggest that safety is not valued by the contractor.
ACKNOWLEDGING
Documentation can also be used to confirm an employee’s understanding of your safety rules and procedures. If you are going to take the appropriate time and effort to train your employees, including new hires, you should not only document that the training was conducted, but also have your employees acknowledge that they received the training and understood the contents of the training. You should also encourage your employees to share their thoughts on the training and embrace a culture where open and frank communication is welcomed.
SUPERVISING AND DISCIPLINING
Documentation is also useful to establish that an employer has provided sufficient supervision of its operations and employees. For example, one element of a commonly-raised affirmative defense to an OSHA citation (known as the “unpreventable employee misconduct defense”) is that the employer engaged in regular jobsite inspections to ensure compliance with its safety rules. If an employer has a project manager or foreman conduct routine walkthroughs at various times during the day, the results should be documented and preserved.
Another element of the unpreventable employee misconduct defense is that the employer has enforced its work rules, usually through some form of employee discipline. Maintaining records of employee discipline related to employee safety violations is critically important in order to establish the element of this defense.
CONCLUSION
The above examples underscore the importance of maintaining accurate jobsite records. As each example shows, written records are the best evidence that an act, event, or procedure occurred.
About the Author:
Michael Rubin is a partner in the law firm Goldberg Segalla, where he serves as chair of the OSHA and Worksite Safety Practice Group. Michael has counseled clients across multiple industries regarding the defense and management of OSHA inspections and citations. He has on-the-ground experience conducting accident investigations and represents companies at all stages of OSHA enforcement proceedings. He frequently provides safety and risk-avoidance workshops on best practices for minimizing OSHA liability. He can be reached at 716.844.3477 or mrubin@goldbergsegalla.com.
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Modern Contractor Solutions, November 2017
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