Review Commission Decision Invites OSHA to Implement I2P2 through an Expansive New Interpretation of Existing Construction Accident Prevention Program Standard

In Secretary of Labor v. Elliot Construction,[1] a two-member Review Commission held that the requirement to "provide for frequent and regular inspections of the job sites," in OSHA's existing Accident Prevention Program Standard for construction, required the employer to perform airborne monitoring for carbon monoxide (CO). In this case, a contractor used "gas-powered" machines to install a concrete floor inside a building and, recognizing the potential for elevated CO levels, set up temporary fans to provide additional ventilation. No air monitoring was performed by the contractor. Several employees reported illness consistent with overexposure to CO during the performance of the work and were transported to local hospitals (apparently due to the intervention of the contractor's outside safety consultant who arrived at a fortuitous time); two were diagnosed with CO poisoning. The Review Commission found that these employees were overexposed to CO significantly in excess of the OSHA permissible exposure level (PEL) and held that the employer had committed three willful violations: (1) failure to conduct required site inspections; (2) failure to maintain exposures to CO at or below the PEL; and (3) failure to use feasible engineering and administrative controls to maintain exposures to CO at or below the PEL.

Under previous case law, since there is no monitoring requirement in the PELs standard[2] applicable to CO, the relevant facts would have been presented by OSHA at trial in an effort to establish (1) a violation of the PEL and (2) the additional allegation that the alleged violation should be classified as willful. If the employer asserted it was not aware of over-exposure to CO, the failure to perform air monitoring for CO would previously have been introduced as evidence of what the employer should be deemed to have known (constructive knowledge) had it exercised due diligence. In an appropriate case, it could also be relevant to an allegation that there was a willful violation of the PEL.

The rule in question was not developed by OSHA, but in rules adopted by the Secretary under the Contract Work Hours and Safety Standards Act before OSHA came into existence. The Review Commission did not simply defer to the Secretary's position with respect to the interpretation of this broadly-worded rule, but appeared to endorse it as the logical interpretation of what the Secretary would have intended with the benefit of 20/20 hindsight.

Section 1926(b)(1) requires employers engaged in construction "to initiate and maintain such programs as may be necessary [emphasis added] to comply with the [OSHA construction standards]." Section 1926(b)(2) states that these programs "shall provide for frequent and regular inspections of the job sites." While CO is an odorless gas and the Review Commission seemed to emphasize the word "necessary," the concern raised by the apparent rationale underlying this decision and I2P2 is that any non-compliance with an OSHA requirement could be interpreted to mean that some additional program measure is "necessary." The scope of those measures could potentially extend beyond inspections. Furthermore, with regard to the inspection requirement, there is a concern that an employer could be cited for failure to conduct an appropriate inspection even where there is no employee exposure to a violative condition.

Employers generally engaged in activities covered by OSHA's General Industry standards should also be concerned. The term "construction" is broadly defined as work involving "construction, alteration, and/or repair, including painting and decorating." OSHA's stated position is that employers in general industry who perform construction activities are subject to the construction industry standards. Finally OSHA's enforcement policy is to apply the more protective rule when either the construction or general industry rule could be applied in a given situation. Given the status of OSHA's I2P2 rulemaking, employers generally engaged in activities covered by OSHA's General Industry standard need to carefully reconsider how they view and manage activities that could fall within the scope of construction.

Please contact Lawrence P. Halprin at halprin@khlaw.com or David G. Sarvadi at sarvadi@khlaw.com with any questions you may have, or if you require assistance with this issue.