February 15, 2017
(OSHA 29 CFR: 1926.21, 1925.65, 1910.120)
1. Do you have the right programs, processes and defensible data to prove you are actively guarding the health and safety of your workers?
Under the exclusive remedy provision of workers compensation laws, most workers do not sue their employers. This worker compensation protection, however, does not cover third parties who then become the targets of plaintiff attorneys’ looking to claim damages.
2. Are you comfortable with the level of liability you would assume in the event that a worker was injured on a construction site?
Have you reviewed your professional liability coverage? Certain locations (e.g., New York City) have experienced significant increases in claims for worker injuries on construction sites. As a result, many insurance companies have dropped or limited their professional liability coverage for those companies that directly or indirectly manage or provide oversite of health and safety activities on a construction project. Even if you feel you have no responsibility, liability exposure may be significant if you are sued as a third party.
3. Are your employees apprised of their obligation under OSHA’s multi-employer workplace policy?
In the event a worker is injured or killed on the site because he or she failed to take proper precautions, the first liability is with the company who employed the worker. However, OSHA has redefined the definition of employer to include other companies or agencies that are also working on the construction project. For example, OSHA has identified engineering firms as a Controlling Employer because of their oversite role on a project. This not only exposes an engineering firm to OSHA citations but lays the groundwork for being named as a contributing third party in the accident. This OSHA policy is complicated and requires a prescriptive company procedure to manage the conduct of employees working on a construction site. It is critical to proactively prepare your staff for situations like this and others is step one in managing your liability on the site.
4. Is the construction site in proximity to high density populations?
Residences, roadways, shopping areas, pubic venues?
With certain contaminants and toxins, weather conditions can carry dusts, vapors and gases up to 2 miles away from the site of origination. Even if a smell or toxin is not considered harmful at the concentration levels at which it is sensed, it can cause alarm and create public unrest that has the potential to disrupt operations unnecessarily. Having a means to collect data to measure potential contaminants potentially emitted from a construction site, provides strong defensible position that people are not being harmed from construction activities.
5. Is the construction site in proximity to vulnerable populations like schools or hospitals?
Routine operations such as excavation and site preparation create dust. While not all dust is harmful, air quality continues to be a major concern for vulnerable populations (sensitive receptors). Proactively monitoring dust in the air continuously and maintaining transparency with the public can prevent complaints and claims of disease coming from toxic exposures.
6. Are you comfortable with the level of liability you would assume in the event that an outside group claimed they had been exposed to a toxin from your site?
Lawsuits pertaining to public exposure to toxins require the defendant (the company) to prove a negative. In other words, you must show that the plaintiff was not exposed or that their injury did not result from toxic exposure originating from your construction site. Proving a negative is extremely difficult unless you have sufficient environmental data covering the specific timeframe when the plaintiff claims exposure. Real-time monitoring provides that level of data necessary to guard against this type of claim. Furthermore, real time data allows you ensure that any toxic release is identified immediately, managed, and documented as such before it reaches toxic levels.
7. Does your firm have a core competency in health and safety that can continuously manage both worker health and public health with technology?
Leading environmental and engineering firms have begun to bundle health and safety with engineering and construction management for a comprehensive, turnkey approach to public and worker health and safety. Ensuring your staff has the technology and the training necessary to deploy equipment, oversee multi-employer safety, and monitor toxins in real time can not only create efficiencies but also provide third party credibility and even outsource liability in certain cases.
If you have specific questions or concerns about these issues, please feel free to reach out to discuss your specific needs at firstname.lastname@example.org.