Ask the Professional

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Auman, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

October 1, 2007

This recurring Insulation Outlook column features Gary Auman, the National Insulation Association’s (NIA’s) legal counsel. While attorneys cannot legally be called experts, Auman has agreed to answer some questions about business and legal issues. In addition to being NIA’s general counsel, Auman is an attorney at Dunlevey, Mahan & Furry and is actively involved with OSHA regulations. Contact him at 937-223-8550 or gwa@dmfdayton.com.

Q: I have heard that when a person wearing a fall harness actually falls, he or she can only remain suspended for a short time before suffering severe injuries. If that is true, can I use the most expedient means available to get an employee who has fallen down, even if it doesn’t comply with safety standards?

A: As much as you might think the correct answer to this question is yes, it is actually no. You should not use methods that do not comply with safety standards to attempt a rescue of any kind. Doing this may put multiple lives at risk to save one life. Think of the numerous instances where several people have died while acting as rescuers because they acted precipitously. If you do knowingly violate existing safety standards in such a situation and anyone loses their life, you could very easily be held liable for a willful Occupational Safety and Health Administration (OSHA) citation, as well other damages.

Q: I provide my employees with all the personal protective equipment (PPE) they need. As far as I am concerned, if they don’t wear it then that is their problem. When inspected by OSHA, I was fined because one of my employees was not wearing his hardhat. How can they do that?

A: This is a question asked by many employers. Unfortunately, your responsibility to your employees does not end when you purchase and issue PPE. You must train your employees on the importance of wearing their PPE and make it clear that wearing this equipment is a mandatory work rule. If your employees do not follow these work rules, you must discipline them. They should then be retrained in the importance of wearing all PPE. It should be clearly communicated that you will not tolerate violations of this obligation.

Q: How much training is enough?

A: The answer to this question has at least two possible answers. If your concern is how much training is necessary to be sure your employees will follow safety rules and work safely, the answer is that you must work with them until you or your safety director has the confidence that they understand what is being taught and will apply their training daily on the job. You need to observe their activities, and if you see them straying from their safety training, provide sufficient retraining to bring them into compliance.

If your concern is how much training is necessary to avoid an OSHA citation for not training, the answer is somewhat different. Now you are talking about the amount of training that is necessary to meet a legal requirement. The answer to this question may encompass less formal training, but more observation of employees’ activities, as well as enforcement and retraining when they stray away from the rules. You must effectively train employees to meet the legal requirements for training. If you are going to run them through training materials one time and rely on the fact that they have passed a post-training test, you will have to closely monitor them as they work. You will also have to discipline and retrain them until you have confidence that they now understand what they have been taught.

In either situation, disciplinary records are an important part of demonstrating compliance. Whether you chose to put most of your training efforts into the initial training and work with your employees until you are sure they “get it,” or you chose to do the basic training up front and then retrain as needed to be sure employees get it, you will have to be able to show that you are observing your employees and enforcing their training as needed. The key is what they retain.

Q: I have heard that the concept of “controlling employer” in the OSHA multi-employer worksite policy has been struck down by an Occupational Safety and Health Review Commission decision. Is this true?

A: This is correct. The Review Commission reviewed the general industry standard that enabled the adoption of the construction industry safety and health standards, and determined that employers can only be held responsible for the safety of their own employees. Since the controlling employer concept made a general contractor, construction manager, or other controlling employer responsible for the safety of other contractors’ employees on a job site, the concept was in conflict with this enabling language and could not be enforced. OSHA has appealed this decision in the court of appeals and has announced that it intends to continue to enforce the controlling employer concept while the appeal is pending.

Readers are encouraged to submit their own insulation questions to industry experts by e-mailing asktheexpert@insulation.org. Questions can be on any insulation topic. General industry or insulation questions will be answered next month. Future topics will include green building, Leadership in Energy and Environmental Design (LEED), acoustics, bril, and refractory.