Why an overly detailed safety plan can be a liability

Why an overly detailed safety plan can be a liability

NEW ORLEANS — Ensuring your company’s safety program is set up to protect you when facing a potential OSHA fine is a challenging needle to thread.

That was the message from a group of panelists highlighting “The Good, the Bad and the Ugly” of contractors’ safety programs during the Associated General Contractors of America’s health and safety conference Thursday.

Kevin Moorhead, safety director for the St. Louis-based Korte Company, said he recently rewrote his several-hundred-page safety guidebook following an accident on the jobsite. One approach he took was retooling verbiage, changing language that workers “must” or “shall” do something to “should” instead.

That’s because OSHA or lawyers deposing a contractor post-accident, injury or fatality can wield a detailed safety rulebook against them, said Howard Mavity, attorney at Fisher Phillips’ Atlanta office.

Even when a contractor’s internal guidance goes above and beyond OSHA standards, if the agency can show that the company’s own rules weren’t followed, that can become a more severe willful violation, since the employer has demonstrated competency and awareness of hazards and solutions, then not followed them, Mavity said.

In other words, a massive rulebook that most workers won’t read cover-to-cover can end up being a liability, the panelists said.

“The more you have a giant program, the more often things will not get followed,” Mavity said.

Having a safety plan that you know you don’t follow is “borderline malpractice,” said Dan Snyder, co-founder of Safety Mentor, a virtual platform designed to help safety managers.

And too often, all of the understanding of the safety guidebook is placed on the shoulders of one safety lead, with little backup.

“At the end of the day, that’s not sustainable,” Snyder said.

Steps to take

Besides having a well written (and well read) plan, there are other steps contractors can take to keep jobsites safe while limiting liability.

Regularly walking jobsites, identifying hazards and planning far ahead of schedule to ensure workers know of dangers is key to creating a prescriptive approach, Moorhead said. It’s vital to document audits too, identifying not only when there are near misses or close calls, but when something goes well.

“People don’t want to tell on themselves,” Moorhead said.

Mavity, who regularly litigates OSHA-related cases, said the agency or opposing lawyers will always look to use documented evidence against a contractor.

“Lawyers poke holes. That’s life,” he said.

But building trust with OSHA can go a long way, he said. The agency has the burden of proof, and one major defense for citations is due diligence. Well-documented safety audits and prescriptive approaches to daily hazards ahead of time can show OSHA that a firm is taking the right steps to protect workers.

“OSHA is going to use the smaller hammer on the contractor who earns trust with transparent, genuine safety action,” Mavity said.

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