09/11/2017 by Attorney Neil S. Lowenstein
PART ONE: Having a Fatality Response Plan
This is the first of a multi-part series regarding project fatalities and related considerations for construction companies.
Construction is inherently dangerous, and varying aspects of construction activities even more so. That specter of danger can, even with the best safety training, and best of both intentions and efforts by contractors for job safety, result in injuries, and even fatalities. According to the Occupational Health and Safety Administration (OSHA)’s Census of Fatal Occupational Injuries for 2015, 21.4% of worker fatalities in the United States were in construction – or, one in five worker deaths.
OSHA has identified as the statistical “Fatal Four” for construction the following categories of incidents: 1) Falls (364 out of 967); 2) Struck by Object (90 out of 967); Electrocutions (81 out of 967); and 4) Caught in Between – workers killed when caught-in or compressed by equipment or objects, and struck, caught or crushed in collapsing structures, equipment or material. So, statistically, 21.4% of those reading this article are in danger of worker fatality for their company.
What do you do if you do have a fatality? Foremost, you do not want to be scrambling to decide what to do afterward since, at that point, there are so many divergent things quickly occurring that you can get pulled in many different directions concurrently, loose necessary focus, and possible delay or misstep important actions. Accordingly, Step One for accident occurrence reaction is having a plan. But just having a plan is not enough; leading to Step Two: your plan must be one that has been thoroughly considered; is realistic for implementation; is known by key personnel, and has been practiced.
Professional Golfer Sam Snead once said, “Practice puts brains in your muscles.” Human reactions to crisis vary by persons and by situations. For example, some people react to a crisis by compartmentalization and positive action, while others panic, become confused, and react negatively. Practicing crisis action planning, using realistic scenarios, can help bolster the former and minimize the latter because workers and management can become familiar with your plan and appropriate response through repetition; helping minimize panic and stress and maximize efficient and effective action in response to a fatality event.
However, not only is it important, for practical reasons, to have a plan; it is legally required. In particular, Part 1910 of the Code of Federal Regulations (CFR) requires an “Emergency Action Plan” (EAP) that for most employers must be in writing, kept at the workplace, and available to employees for review (employers with 10 or fewer employees may communicate their EAP orally to employees). OSHA’s regulations further require training respecting the EAP. Companies should be familiar with and implement, the specific policies and procedures in OSHA’s Construction Emergency Action Plan Standard (29 CFR 1926.35).
One of the primary purposes of the EAP is to minimize injury potential, but additionally, an effective EAP helps maximize response through the associated preparation and training of both employers and employees to effectively deal with emergencies. OSHA regulations additionally mandate reporting by employers for serious incidents including a) for fatalities: reporting within 8 hours of employer notice; and b) for in-patient hospitalization, amputation, or loss of an eye: reporting within 24 hours of employer notice. Additionally, fatalities within 30 days of a work-related incident must be reported, as must in-patient hospitalization, amputation, or loss of any eye within 24 hours of the incident.
OSHA has developed a website for employer information and assistance regarding reporting fatalities and severe injuries. When reporting is required for serious incidents, employers can call their nearest OSHA office, call the OSHA 24-hour hotline at 1-800-321-6742, or report online. When reporting to OSHA about the incident, employers need to be prepared to minimally supply their business name, the name(s) of the affected employee(s), the location and time of the incident, a brief description of the incident, and contact person and phone number. OSHA’s current website regarding notice is https://www.osha.gov/report.html.