Cold-Weather Injuries: OSHA Notes: Cold-Weather Injury Prevention Requirements and Contractor-Subcontractor Liability

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@amfdayton.com.

February 1, 2014

The July issue of Insulation
Outlook
featured an article about heat stress due to the serious nature of
this concern and the correspondingly strict stance the Occupational Safety and
Health Administration (OSHA) has taken on heat stress prevention. OSHA had
informed construction industry employers that if they did not have a heat
stress program in place, they would be cited for violations of the General Duty
Clause. Although a similar memorandum has not been issued regarding
cold-weather injuries, the same enforcement action is available to OSHA.

There
are several types of cold-weather injuries: chilblains, frost nip, trench foot,
frostbite, and hypothermia. Symptoms of chilblains manifest themselves after
you have left a cold environment and rewarmed yourself. They are itchy,
painful, reddish or purplish areas of swelling on fingers, toes, ears, or nose.
These symptoms may last for several days, but they usually leave no permanent
damage. The same is true of frost nip, which is characterized by burning,
itching, or pain, but is even less likely than chilblains to result in any
permanent damage.

A
more serious cold-weather condition is trench foot, which results from having
the feet exposed to cold, wet conditions for an extended period of time.
Employees whose feet get wet do not have to be exposed to very cold
temperatures to develop trench foot; symptoms have been found in people working
in temperatures up to 60°F. Without proper first aid, trench foot can lead to
the development of gangrene and possibly the amputation of the affected extremity.

Frostbite is the most serious cold-weather injury, and
can cause body tissue to actually freeze. This condition develops primarily
because of decreased blood flow and heat delivery to the extremities. When the
affected tissue is rewarmed, death of the tissue frequently occurs. The parts
of the body most commonly affected are the feet, hands, nose, ears, and cheeks.
In severe cases, frostbite can lead to amputation of the affected extremity.
While this article is not intended to address first aid for these conditions,
it is important to be aware that if frostbite occurs, the affected extremity
should not be rapidly thawed if there is any chance that it will be refrozen.

While
it is not a bodily injury, hypothermia is the most serious cold-weather condition.
Hypothermia occurs when the core body temperature drops below 95°F. One of the
difficulties of hypothermia is that it can be difficult to diagnose, as it can
occur with none of the symptoms of the other cold-weather conditions. When core
body temperature drops, the heart, nervous system, and other organs cannot work
properly. If this occurs, there can be complete failure of the heart and
respiratory system, which may lead to death. Hypothermia usually results from
exposure to cold weather or immersion in cold water.

Employers
should develop a program to address the potential for cold-weather injuries in
their workforce. This program should include steps for the prevention of
cold-weather injuries, the identification of symptoms and first aid, and any other
steps required by OSHA or other federal or state regulations. Prevention steps
include encouraging employees to drink plenty of water and to avoid alcohol,
caffeinated drinks, and smoking. It is also advisable to suggest that your
employees eat high-calorie snacks, and have a dry change of clothing available
on the job site. Finally, all supervisors should be trained in the recognition
of the symptoms of cold-weather injuries.

Contractor Liability to
OSHA for Subcontractors

Certain contractors may
attempt to escape responsibility for safety compliance by using subcontractors
instead of employees. Many administrative agencies, including OSHA, are aware
of this practice and are taking enforcement steps to address the subcontractor
issue. The most recent OSHA case on this topic is Absolute Roofing &
Construction, Inc. v. OSHRC, Sixth Circuit, No. 13-4364 (docketed 11/20/13). In
Absolute Roofing, a roofing contractor was cited for serious and repeat
citations for fall protection violations allegedly committed by a
“subcontractor,” Koran Construction, Inc. Absolute Roofing argued that any
citations should have been issued against Koran Construction, Inc. Testimony at
the Review Commission hearing by the Compliance Officers who performed the
jobsite inspection explained that the representative for Koran Construction,
Inc. claimed that he did not have his own business, even though he carried
liability and workers’ compensation insurance. He also told them that most of
the tools he used belonged to Absolute Roofing. He reversed this testimony at
the hearing, but the Judge concluded that his “substantial and ongoing work
relationship” with Absolute Roofing may have influenced his testimony.

The
Judge also noted that the 2 businesses had the same business address, shared an
office, had the same Owners and Managers, did the same work, and occasionally
shared the same employees. While there is nothing wrong with using
subcontractors, businesses that do so must be careful to maintain a true arms-length
business relationship with the subcontractor. Absolute Roofing’s appeal of the
Review Commission decision affirming the citations will be briefed and argued
to the Sixth Circuit Court of Appeals. Look for an update on this case and a
further discussion of appropriate contractor-subcontractor relationships in
upcoming issues of Insulation Outlook.

Conclusions

What businesses should
take away from this article is that they do have a responsibility to maintain
the safety of any workers that are directly connected to their business that
can be legally defined as under their employ. With this winter bringing record
low temperatures around the United States, it is crucial that employers provide
for the safety of their employees and ensure that they are trained in all
necessary cold-injury prevention and recognition techniques. Employers should
also consult their health and safety experts and legal team to ensure they are compliant
with all federal and state regulations.