Preventable falls frustrate safety officials

Falls from heights are the No. 1 cause of death for workers, but the hazard remains the most-cited workplace safety violation year after year despite being relatively easy to prevent.

Federal regulators and workplace safety advocates say preventing falls is a priority, as several organizations have recently announced efforts aimed at demystifying the root causes. Meanwhile, citations — in many cases for repeat violations — continue to stack up.

The Occupational Safety and Health Administration issued 5,295 fall protection citations in 2021, the 11th consecutive year that the hazard was the most-cited violation. The Bureau of Labor Statistics reported that “falls from elevation” accounted for 351 of the 1,008 deaths among construction workers last year, or about one-third of construction-related deaths.

It’s an issue Doug Parker, OSHA’s assistant secretary of labor, calls the most “frustrating” for workplace safety advocates.

Aiming to increase awareness, OSHA issued 14 press releases between May 1 and Aug. 1 on companies cited for violating fall protection guidelines. On July 11, the agency announced a new initiative to conduct surprise safety inspections for fall hazards at residential construction sites in Colorado, Montana and South Dakota.

The latest push for surprise inspections, targeting “weekend work” when companies have been known to have lax safety protocols, follows a similar program last year in the Denver area. That initiative included 68 surprise inspections that resulted in 54 citations for fall hazards, 10 of which were repeat citations for construction companies. Jennifer Rous, OSHA’s Denver area regional administrator, said in an email that the initiative helped remove some 200 workers from the risk of dangerous falls.

Still, do inspections spur widespread change? Not really, according to experts — including OSHA’s leader.

“About 50% of our inspections are in construction” and “about half of those inspections … have identified a fall hazard,” Mr. Parker said at the American Society of Safety Professionals’ annual conference in Chicago in June. “I can’t think of a rule or hazard where (there are) so many deaths and so much noncompliance.”

Adding to the fall protection compliance conundrum is that failing to use protective equipment is among the most “visible” workplace safety violations, said John Ho, a labor and employment attorney and chair of Cozen O’Connor P.C.’s OSHA practice in New York. “If you’ve got folks working on a building and an OSHA inspector drives by, or even a member of the public or another co-worker sees it, this is very visible,” he said.

According to experts, the scene is common: a worker, at an elevation, not protected by a use of a harness or other apparatus.

In some cases, it’s a matter of accidental oversight; in others, it’s overconfidence, said Kristina Brooks, of counsel and a workplace safety and health attorney in the Albuquerque, New Mexico, office of Jackson Lewis P.C., who also worked as a litigator for OSHA for 15 years.

“We’ve seen companies that have very robust programs in place and they still have accidents,” she said. “And then you have people who have been doing this for a very long time. So, they just get that false sense of safety and say, ‘We’ve never had an issue. We’re just going to continue to do it this way.’

“Even though they know they’ve got the equipment in their truck. Even though they know they can go to the yard or to wherever they need to ensure that the fall protection (equipment) is in place for everybody.”

The Silver Springs, Maryland-based Center for Construction Research and Training has been looking deeper into the issue, surveying the construction industry to understand why fall protection practices are so lax.

Jessica Bunting, who leads the organization’s Campaign to Prevent Falls in Construction, said the most recent data, culled from interviews with 671 workers, has provided insights.

One of the most important findings was that company culture often determined whether a worker used fall protection equipment, she said.

“Having heard from contractors and others, saying, ‘You know, we provide everything but then employees aren’t using the fall protection,’ (we found) that it really comes down to the employer,” she said.

The survey found that “when employees believed that their company’s fall prevention policy was strongly associated with the use of fall protection and they believed that fall protection was required, they were eight times more likely to use fall protection compared to those who did not believe that it was required,” Ms. Bunting said.

Mr. Ho said employers often state in challenging citations that employee misconduct led to lapses in safety. “Somebody takes a shortcut. … They don’t really think of (fall protection), but they have all the equipment provided. For some reason, it wasn’t being used, and sometimes people aren’t trained properly on how to use it. And if they do use it, they’re misusing it.”

Jessica Martinez, Los Angeles-based co-executive director of the National Council for Occupational Safety and Health, said investigations must go beyond an individual worker’s behavior. Lapses in fall protection protocols usually reflect a systemic failure, she said.

“Let’s suppose the worker is injured or killed falling from a height, and suppose an investigation shows the worker was not wearing a safety harness at the time. If we’re going to blame the worker and focus on the worker’s behavior, then the reason he or she was injured or killed was because he or she failed to wear the safety equipment. Case closed, right? But that’s completely wrong.”

An investigation “must inquire why hazardous conditions occurred,” she said.

“Why is it that the worker assigned to work at a height was not wearing their safety harness? Did the employer provide the safety harness and provide training on how to properly fit and use safety harness? Did the employer supervisors inspect the workplace and ensure that any safety harnesses are available?”

Construction industry web complicates safety

Holding employers responsible for lax fall protection practices has long been considered one way to increase compliance — yet courts remain split on the issue of whether general contractors or subcontractors are at fault.

Under the Occupational Safety and Health Administration’s Multi-Employer Citation Policy, more than one employer may be cited for a hazardous condition that violates an OSHA standard under certain conditions, including fall protection lapses.

“The direct employer, the employer of record who pays the actual paychecks, has the greater responsibility,” said John Ho, a labor and employment attorney and chair of Cozen O’Connor P.C.’s OSHA practice in New York. Yet “OSHA recognizes that as the general contractor, you still have some responsibility,” he said.

Kristina Brooks, of counsel and a workplace safety and health attorney in the Albuquerque, New Mexico, office of Jackson Lewis P.C., said it depends on the state in which the work is being performed, as some state courts have ruled that the general contractor holds responsibility. Generally, she said, it’s a best practice for the general contractor to oversee safety.

In many cases, it comes down to the issue of control of the worksite, which can include multiple subcontractors. One example, Ms. Brooks said, is when one subcontractor is hired to paint and a different subcontractor is hired to erect the scaffolding — who is responsible when something goes wrong, or someone trips and falls?

The general contractor is always held to some oversight, she said, adding “so they have a general responsibility to check in with their contractors.

This article was first published in Business Insurance.

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