This matter did not arise from an accident or injury but rather from a citation issued from an OSHA inspection. Gate Precast Company (Gate) manufactures and installs precast concrete structures and was a subcontractor in the construction of a six-story hotel in Texas. The issue in this matter was whether the temporary employees were exposed to the violative condition by showing either “actual exposure or that access to the hazard was reasonably predictable.”

On May 4, 2015, Gate was intending to work on the uppermost floor or “roof” of a partially completed hotel. Gate had tied to and strung red tape between sticks wedged in gaps of the abutting precast planks of concrete, approximately six feet from the roof’s edge. The edge of the roof was unprotected and was approximately 24 feet above the ground.

Prior to starting work for the day, Gate’s foreman held a safety briefing to use personal fall arrest systems while working on the roof. However, two temporary employees (provided through an employment agency) arrived at the site after the safety briefing had been held. They were not provided with any fall protection equipment.

Gate’s foreman instructed these two temporary employees to assist with laying grout and to perform clean-up tasks on the roof. The foreman also specifically told them to remain behind the red tape. OSHA’s compliance officer was conducting an inspection and observed Gate’s foreman operating a fork-lift at ground level to lift a load of four-foot-wide precast concrete planks onto the roof. To assist with this operation, three Gate employees, one temporary employee and two permanent employees, helped guide the load into place as the other temporary employee worked in a different area of the roof.

Upon viewing these operations, the OSHA officer  subsequently issued a citation to Gates for violating the safety provision § 1926.501(b)(1), which requires that “[e]ach employee on a walking/working surface (horizontal and vertical surface) with an unprotected side or edge which is six feet or more above a lower level…be protected from falling by the use of guardrail systems, safety net systems, or personal fall arrest systems.”

The Secretary (of Labor) must prove that the cited standard applies, employees were exposed to the violative condition, the employer knew or could have known of the violative condition with the exercise of reasonable diligence. Here, it was undisputed that the roof had unprotected edges of about 24 feet above ground level, neither of the temporary employees were provided with any personal fall arrest systems and that neither was instructed to, or actually utilized such system while conducting work on the roof and that Gate by via its foreman was aware of these conditions as the foreman had instructed the two employees to remain behind the red tape.

The issue in this matter was whether the temporary employees were exposed to the violative condition by showing either “actual exposure or that access to the hazard was reasonably predictable.” To determine access, the Administrative Law Judge (ALJ) will look at not just that access to the hazardous condition is theoretically possible but that it could be reasonably predictable by “operational necessity” or inadvertently, which would place the employees in the zone of danger, which is the “area surrounding the violative condition that presents the danger to employees which the standard is intended to prevent.”

The Occupational Safety and Health Review Commission agreed with the ALJ that the Secretary established exposure as to the one employee who assisted with forklift operations and was guiding the load of planks onto the roof. This employee was standing only about six feet from the unprotected edge and his attention was more focused on guiding the swinging load and keeping it stable, and points even looking up as the load was over his head.

The OSHRC agreed with the ALJ that it could be reasonably predictable that this employee could have lost his balance, could have been knocked over by the swinging load of planks, or by inadvertently walking forward to the unprotected edge as his efforts were more focused on guiding the load. Therefore, even if this employee stayed behind the red tape he was still in the “zone of danger” of the unprotected edge. The distance from an unprotected edge is not the sole determinative factor to be considered but rather one of many factors in this “fact-intensive inquiry.”

Other facts to be considered, can include the presence of tripping hazards such as debris or pipes, the size and weight of objects an employee was holding and the type of work which could make it reasonably foreseeable that an employee “could stagger…or stumble, placing him within the zone of danger.” Here, taping off the area and providing an instruction to stay behind was deemed insufficient. Lastly, the Commission found Gate’s argument that in looking at potential fall exposure, the temporary employee based on his initial job task, was not reasonably predictable that he would be performing this job task of guiding the planks.

The Secretary argued that the performance of guiding loads fell within the temporary employee’s role especially given that he was asked by other Gate’s employees to assist when they were encountering problems securing the load, he was never told by the foreman not to engage in such activity, and that the unstable nature of the load, and its weight and size required more than two workers to stabilize and guide. The commission agreed with the ALJ in finding it was in fact reasonably predictable that he would be performing this task, and the citation was affirmed.

About the author: Costas Cyprus is an attorney practicing construction law and commercial litigation with Welby, Brady & Greenblatt, LLP, in White Plains, NY. He can be reached at 914-428-2100 and at ccyprus@ wbgllp.com. The articles in this series do not constitute legal advice and are intended for general guidance only.