The Occupational Safety and Health Administration (OSHA) can seriously affect any Contractor or construction project. Compliance with OSHA regulations can be time consuming and tedious, but it is essential to maintain a viable position in the construction industry. This month, as always, we report on recent developments in the world of OSHA

OSHA Releases New Crane and Derrick Standards

OSHA recently issued new standards governing the use of cranes and derricks in construction. The rule takes effect on November 8, 2010, with the effective dates of some specific requirements being delayed anywhere from one to four years. The new standard replaces the existing rule that has been in place since 1971.  

What are the major changes as a result of the new rule?

1. Ground Conditions

The new standards require the site to be prepared, and for a general contractor to inform the operator of any known hazards at the site. The “controlling entity” must make sure the required ground preparations are provided and must inform the operator of the location of hazards beneath the setup area. The “controlling entity” is defined as “an employer that is a prime contractor, general contractor, construction manager or any other legal entity which has the overall responsibility for the construction of the project – its planning, quality, and completion.”  

The ground must be “firm, drained, and graded” so that the “equipment manufacturer’s specifications for adequate support and degree of level of the equipment are met.” In addition, the controlling entity must inform the operator of hazards beneath the equipment setup area if those hazards are identified in any of the project documents or if the controlling entity knows of the hazards.

What does this mean for the general contractor? It is similar to the multi-employer worksite doctrine. Even if the general contractor’s own employees are not exposed to a hazard, the general contractor may be subject to a citation where a subcontractor’s employee is exposed to a hazard.  

In order to avoid a citation under this part of the new standard a general contractor may take certain precautionary measures. Contracts with subcontractors can be modified to require a specific process for verifying that the site has been prepared and the information has been provided to the subcontractor before the equipment is assembled. General contractors should also consider documenting the steps taken to prepare the site and provide a copy of the project documents to the subcontractor so the subcontractor can determine from the documents if any hazards are located in the setup area. These measures would provide some additional protection should OSHA knock on the door.  

2. Qualified Operators

Operators must now be licensed to use covered equipment. Operators must also be trained by an accredited crane testing organization, through an audited employer program, qualified by the U.S. military, or licensed by a government entity. Operators, however, will have up to four years to obtain an accredited certification (unless the city or state the operator is working in has its own licensing requirements). Even though there is an extended period to obtain certification, during the four-year period the employer must ensure that the operators are competent to operate the equipment and provide training to the operators if they do not have the knowledge or ability to operate the equipment safely.  

Employers must provide for the certification at no cost to the operators. In addition, the tests for certification may either be written or oral and “non-English speaking operators will have the ability to become certified using languages other than English.”  

Additional provisions require riggers and signal persons to be qualified starting on November 8, 2010.  

3. Increased Inspection Requirements

Another significant change is the increased frequency of inspections required by the new standards. Equipment that has been modified or repaired must be inspected by a qualified person prior to initial use. Once the equipment is assembled a qualified person must verify the equipment was assembled according to the manufacturer’s criteria. If a manufacturer’s criteria is unavailable then the qualified person must determine if a professional engineer is needed to develop criteria for the equipment.

The equipment must be inspected after each shift, and monthly and yearly inspections are also required. In some cases, specific documentation must be kept that records the results of inspections. There are similar inspection requirements for wire rope that is used in conjunction with the equipment.

As a best practice, employers should update their safety manuals to include specific inspection requirements that must be met before employees are permitted to use the equipment. In addition, a log should be kept for each piece of equipment covered by the new standards with the log including all records related to the required inspections.

Who must comply with the new rules?

The rules apply to the construction industry and to the general industry when general industry employers undertake construction type work.

What equipment is covered by the new standards?

The covered equipment, and the equipment that is excluded from the new rule, is listed in 29 CFR 1926.1400.  

Where can you find more information about the changes?

In a web chat on July 28, 2010, OSHA announced that it would provide additional compliance assistance material in the near future. The new standards, OSHA’s fact sheet regarding the new rules, and the archived web chat are all included on OSHA’s website:  

that specifically address the hazards faced by employees. Failure to include a rule likely will not be outweighed by other factors, including where the employer actually provides the necessary safety equipment. Where the employer fails to develop safety rules to prevent a hazard faced by employees the safety training program will likely be labeled as inadequate.  

The safety rules not only need to be specific to the hazards, but the rules also must be mandatory. In Meyers Contracting of Hudson, Inc., Rev. Com. 1992, 1991-1993 OSHD ¶ 29,725, the employer made eye protection and safety belts available at the worksite. The employer’s failure, however, to have a specific safety rule requiring the use of the safety equipment caused the unpreventable employee misconduct defense to fail. The use of the protective devices was simply left to the discretion of the employees.  

The safety rules also must be effective in theory and in practice. It’s one thing to have a very detailed safety rule written in a safety manual, but if the safety rule is not effective in practice then it’s basically worthless.  

In addition, employers cannot develop safety procedures that differ from the standards developed by OSHA. “An employer may not substitute employee warnings or training if physical guarding is required by a standard.” Jones Dairy Farm, Rev. Com. Judge 1992, 1991-1993 OSHD ¶ 29,895.

Adequate Communication of Work Rules to Employees

In many cases the unpreventable employee misconduct defense fails due to the employer’s failure to adequately communicate the safety rules to its employees. The best safety program ever written won’t protect employees if the program is not properly communicated to the employees.

In Warner Electric, Inc., Rev. Com. Judge 1989, 1987-1990 OSHD ¶ 28,449, a conductor or cable exploded when it was placed on top of a 12,000-volt buss. The employer had a written safety plan requiring the buss to be covered with approved protective equipment. The employer alleged that the accident would not have occurred had the employee followed the safety rule. The employer also alleged that due to hiring constraints imposed by the union and the frequent change of employees from job to job it was infeasible for the employer to implement an effective continuing safety program.