Category | Briefing Papers
Elise is a member of the firm’s Construction Law Department. She can be reached at 612.359.7657 or firstname.lastname@example.org.
Regrettably, the construction industry is consistently within the top-ten highest fatality rates by occupation per year, as tracked by the Occupational Safety and Health Administration (“Federal OSHA”). Therefore, it is never too early to start planning for a safe construction season.
Notwithstanding the inherently dangerous nature of construction work, there are various steps an employer can take to promote a safe workspace for its employees. This Briefing Paper discusses the background of the Federal OSHA regulations and Minnesota’s state-specific plan, and safety policies, training, and enforcement mechanisms an employer can implement to promote a safe work environment for its employees.
Federal OSHA was created via the Occupational Safety and Health Act of 1970. Federal OSHA is part of the Department of Labor and works to ensure worker safety across the nation.
Twenty-two states, including Minnesota, have separate state OSHA approved workplace safety plans. The Minnesota Occupational Safety and Health Administration (“MnOSHA”) is administered by the Minnesota Department of Labor and Industry and covers the majority workplaces in the state, including construction and manufacturing.
Minnesota’s state-specific plan is codified in both Chapter 182 of the Minnesota Statutes and in the Minnesota Administrative Rules, Chapters 5205 through 5215. Minnesota’s state-specific plan also incorporates by reference the Federal OSHA regulations.
The MnOSHA regulations have several differences from the Federal OSHA regulations, including a requirement for a workplace accident and injury reduction (“AWAIR”) program for numerous industries, a requirement that employers provide and pay for personal protective equipment for employees, and the establishment of safety committees for all employers with more than 25 employees and certain employers with 25 or fewer employees. Contractors in Minnesota need to be aware of both the Federal OSHA regulations and the state-specific MnOSHA regulations to ensure compliance with both sets of regulations.
Preparing for a Safe Construction Season
Employers have a duty to furnish their employees with a workspace “free from recognized hazards that are causing or are likely to cause death or serious injury or harm to its employees.” Minn. Stat. § 182.653, subd. 2 (Minnesota’s General Duty Clause).
It is important to take all preventative steps to encourage safe worksites not only for the safety of employees, but also in the event an employee takes an unexpected or unexplained action contrary to an employer’s safety policies and training. While accidents can, and do happen, employers can take steps to encourage safety among crews and employees and protect themselves from costly MnOSHA citations. An employer’s efforts to promote a safe work environment can serve as a defense to a MnOSHA citation.
Establishing safety policies is an initial step in creating a safe workplace. Written safety policies establish the rules and procedures that all employees – from management to field employees – are expected to follow.
A written safety policy is also a requirement of Minnesota’s state-specific OSHA plan. Minnesota Statutes § 182.653 requires certain employers, including those in the construction industry, to establish an AWAIR program. An AWAIR program must include:
Minn. Stat. § 182.653, subd. 8(a). AWAIR programs must also be reviewed at least annually. A failure to have an AWAIR program in place is grounds for a citation from MnOSHA.
Providing training to employees is another step in the promotion of a safe workplace. Training is multi-faceted and continuous. Training occurs on an annual, weekly, and daily basis.
Annual training can occur at any time during the year, but typically occurs in the spring at or near the beginning of the construction season. Annual training provides an opportunity for an “all hands on deck” training of an entire workforce and can highlight key safety elements of a specific trade. For example, a sewer and water contractor will necessarily discuss trench safety training during annual training. A roofing contractor will similarly include fall protection training in an annual training session. Annual training also provides an opportunity for third-party safety consultants and attorneys knowledgeable about OSHA regulations and procedures to provide safety training to an entire workforce.
Training also occurs weekly on a construction site. One way to streamline training and ensure all crews receive the same or similar training on a weekly basis is through “toolbox talks”. Toolbox talks occur once a week or once every other week and discuss a specific safety topic. Training information or agendas for toolbox talks can be provided by management to field employees to ensure consistency of training throughout various crews.
Daily meetings are another step at ensuring site safety. Daily meetings before work begins on a project site are geared towards specific risks that could arise that day. Daily meetings are also a good opportunity to ensure all crew members are equipped with proper personal protective equipment and all equipment has been inspected before work begins. They can be combined with “plan of the day” meetings among the trades and general contractor to make sure everyone has the same plan for site activities for better coordination.
Once the construction season begins, employers can perform self-audits or inspections to help ensure compliance with the Federal OSHA and MnOSHA regulations. Self-audits can be performed by management-level employees, such as superintendents or safety committee members, or by engaging a third-party consultant. Self-audits also provide an opportunity for employers to identify potential safety hazards, provide ongoing training to employees, correct any potentially unsafe practices, and issue discipline as necessary.
No construction site will ever be free from hazards, but employers can take steps to promote safe practices among employees. It is never too early to familiarize yourself with the Federal OSHA and MnOSHA regulations and plan for a safe construction season.
If, however, you find yourself in a position where MnOSHA has conducted an inspection of a worksite and issuance of a citation is possible, it is important to reach out to an experienced OSHA attorney right away. An experienced OSHA attorney can help navigate the inspection and investigation process and, if necessary, defend against a citation issued by MnOSHA. For example, if an employee violates a company’s safety program despite regular training about the program, the employer may have the defense that the employee engaged in idiosyncratic behavior for which the employer is not liable.
Matt Collins will discuss Best Construction Law Practices for Subcontractors hosted by the Minnesota Concrete & Masonry Contractors Association on March 2 at 7:30 am (7:00 registration). Venued in Roseville, Minnesota, Matt will be discussing fundamental construction law principals that every subcontractor and supplier should know for running a successful business. If you would like more information to attend, please click here.
Congratulations to the Fabyanske, Westra, Hart & Thomson, P.A. attorneys who have been named The Best Lawyers in America: Ones to Watch (2023 Edition). They are Alexander Athmann, Colin Bruns, Lucas Clayton, and Kenzie Longren. For more information click here.
Fabyanske, Westra, Hart & Thomson, P.A. is pleased to announce the recognition of nine attorneys, Mark Becker, Matt Collins, Rory Duggan, Gary Eidson, Marv Fabyanske, Kyle Hart, Jesse Orman, Dean Thomson and Tom Vollbrecht by U.S. News Best Lawyers©, one of the oldest and most respected peer-review publications in the legal profession. Dean Thomson was also selected by Best Lawyers as 2023 Attorney of the Year in Construction Law. For more information click here.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2023 FWH&T