Lack of communication between colleagues can be costly and even deadly. It decreases efficiency, productivity, and most of all leads to greater incidence of injuries in the workplace. While communication of hazards can be easily taken for granted, it is the most important part of workplace safety. This is especially true in the workplace where employees often encounter dangers. This is what unfortunately occurred in the case.
On December 2017, an employee of New Finish Construction, LLC (NFC) was electrocuted while working on a residential reroofing project in Pennsylvania. The fatal incident occurred when Dustin Reynolds, NFC's owner and two of his workers were installing new metal roofs for a house in Pennsylvania. In the work done by NFC, roof anchors (metal plates with attached D-rings) are often used by workers to tie off their personal fall arrest systems. When the accident occurred, the main roof had been finished when Reynolds began to clean up to move to another worksite. Reynolds detached the roof anchor and threw it off the roof intending it to land in the yard, which was his standard practice. Instead of falling on the ground, the roof anchor fell on top of an electrical power line next to where a metal extension ladder had been set up. Shortly thereafter, Reynolds began cleaning pieces of debris that fell from the roof work within three to five feet of the foot of the ladder. One of the employees climbed the 30-foot metal ladder to the roof line and attempted to use a metal pole to dislodge the metal roof anchor from the electrical power line. The employee was electrocuted upon contact with the power line and fell to the ground. He was pronounced dead after he was transported to the hospital.
Reynolds denied he was aware of the employee’s plan to dislodge the roof anchor with the metal pole when he climbed the ladder. He attempted to reduce the risk of injury when he decided to call the energy company to deenergize the line, but he did not share this intention with the other workers, nor did he caution any of them not to dislodge the roof anchor on the electrical line. The Court asserted that Reynolds should have expressly prohibited the worker from attempting to retrieve the roof anchor or told him he intended to deenergize the line.
The investigation of the fatality conducted by OSHA led to recommendations of five violations of the Occupational Safety and Health Act. The Occupational Safety Health Review Commission (Commission) hears the violations and considers the gravity of the violation, employer’s size, history of violation, and good faith when assessing the extent of the penalty. The gravity of the violations was considered severe because they significantly increased the likelihood of injury, and the Commission concluded NFC took no precautions to prevent any injuries. The Commission acknowledges NFC’s good faith by cooperating with the state police and OSHA investigations.
Of the five violations, three were dismissed. This left pending violations for “permitting an employee to work in proximity to electric power circuits while not protected against electric shock” and “failing to ensure a ladder used where the employee or the ladder could contact exposed energized electrical equipment was not equipped with nonconductive siderails.”
The Defense Arguments
NFC attempted to assert a defense of unpreventable employee misconduct for the,violation of permitting an employee to work close to electric power circuits while unprotected from electric shock. In order to prove the accident was due to employee misconduct, an employer is required to show that it has work rules designed to prevent the violation; has communicated these rules to its employees; has taken steps to discover violations; and enforces the rules when violations are discovered. Though NFC asserted a defense of unpreventable misconduct, it never addressed these four elements. The Commission also did not find any workrule designed to prevent the violation, leading to NFC’s failed defense.
The Commission also found that NFC did not comply with its violation for not having nonconductive siderails on the ladder when it was used close to the power lines. To establish this violation, the Secretary of Labor is not required to prove the ladder or employee came into contact with the power line, but instead, only that it could have come into contact with the power line. Even if there had not been an accident, NFC would still be guilty of this violation.
It is important not to make assumptions when hazards arise in the workplace. Do not assume everyone is either aware of or understands the dangers close by. It is difficult to anticipate what a worker would do in environments with hazards present. What one person may have knowledge of, or consider common sense, may not be the case to another. Whether there may be wet floors that can cause someone to fall, or something more serious like the dangers of an electric cable, communication is key to ensure everyone is vigilant of hazards in the workplace. It is also important to cooperate as best as possible if an accident occurs. This can avoid excessive penalty fees and may help to prevent such accidents in the future. If you have any questions about OSHA violations and how to avoid them, contact Whitcomb Selinsky, PC at (866) 476-4558.