SEBC 2020 Virtual Exhibitor Showcase First Edition | Page 46

After World War II the
country saw dramatic
growth during its chemical
revolution where new
chemicals were created and
deployed in manufacturing
and agriculture without a
full understanding of their
impacts.
The environmental
movement of the 1960s,
seeking to rally others behind
their cause, enlisted the
workforce and unions to tip
the scale against employers,
and tip, it did.
During a two year legislative
debate on workplace safety,
pro-business legislators
sought to create an advisory
OSHA agency, not one which
had the power to regulate.
Those legislators also battled
against inclusion of what we
now know as the “general
duty” clause. Some battles
were won, and others were
lost. What remained was a
patchwork of ideals that a
new executive agency would
implement.
In the decades since this
agency has seemingly
expanded its-own power,
and seeks to enforce an
ever expanding body of its
unilateral pronouncements.
This body of pronouncements
emanate from the very
“general duty” clause probusiness
advocates fought
back against.
While that clause is now the
law, executive agency edict
can fortunately be checked
through knowledge and
challenge where appropriate.
Contractors should know
that they have a general duty
to provide a workplace free
from recognized hazards
likely to cause death or
serious physical harm. That
workplace includes not only a
contractor’s own facilities, but
the jobsite as well.
The contractor must also
endeavor to ensure that its
employees perform daily
activities in accordance with
applicable safety standards, of
which there are many. There
are general standards, and
also those which depend
upon the nature of work
performed (e.g. illumination,
lead, hazmat, electrical,
fire protection, welding,
confined space, fall protection,
chemical).
These elaborate standards are
set forth initially in the United
States Code and the Code of
Federal Regulations. OSHA
then issues interpretation
letters explaining those
requirements and how they
may apply to a particular
circumstance.
It is critical that contractors
are intimately familiar with
applicable standards, and
that contractors develop
an ongoing safety training
program. This program
should be conducted both by
internal and external sources.
The program can and
should consist, in part, of
informal training, such as
project planning meetings
and task specific training by
supervisors on a day to day
basis.
The program should
also consist of formal
training via internal
seminars or outsourced
seminars. All training
should be documented
contemporaneously (who,
what, when) because there
is little time to scramble for
details and documentation
after an accident.
Although contractors have
a duty to implement safety
training, they are not legal
guarantors of safety. The
mere existence of an accident
does not mean that a
contractor has failed in its
general duty.
Since the contractor is
required to address only
recognized hazards, an
unanticipated unusual event
does not trigger a violation
of the general duty. This is
particularly true where OSHA
claims that the incident is
“serious,” as opposed to “other
than serious.”
A serious violation exists only
where OSHA can prove there
is a substantial probability
of death or serious physical
harm and that the contractor
knew about it, or that it should
have known about it with
the exercise of reasonable
diligence. Even where an
event could have been
anticipated, OSHA must still
prove that feasible measures
would have materially
reduced the likelihood of
injury.
Against this backdrop
we recycle to our story of
the returning vacationer.