The Dotted Line: How employers can protect construction workers from external threats
This feature is a part of "The Dotted Line" series, which takes an in-depth look at the complex legal landscape of the construction industry. To view the entire series, click here.
Construction sites are inherently dangerous places. Every year, the Bureau of Labor Statistics and the Occupational Safety and Health Administration release data on injuries and deaths of construction workers, with many attributable to falls, excavation collapses, struck-by incidents — all the things one might expect to occur on a job site.
However, there are other threats facing construction workers that have nothing to do with the industry but everything to do with where construction sites happen are located. The potential danger of third-party violence and theft, drunk drivers and even terrorism all threaten today’s trade workers, more so if they are in what becomes the wrong place at the wrong time.
Employers must know their legal responsibilities when it comes to worker safety, from situations ranging from job site robbery to terrorism risks.
The heightened risk of highway work
Although it might be more dramatic to think of workers in constant danger from terrorist plots or snipers, highway workers carry what might be the most significant risk from outside threats. In 2014, according to the Federal Highway Administration’s Work Zone Management Program, there were 669 work-zone crash deaths, almost two per day and 2% of all roadway fatalities nationwide.
Skanska USA Civil has robust safety programs for workers on highway projects, as well as other public works, but those programs can be helped or hindered by each state’s department of transportation, according to Clark Peterson, vice president of the company’s environmental health and safety division.
Those are the agencies, he said, that decide whether construction crews can slow down traffic (as more congestion usually means more conscientious drivers), if they can use certain traffic control devices, and whether they have to shift to more treacherous night work.
At night, there’s less traffic, but, "That’s when you get drunk drivers … and when they lose control they enter the work area," Peterson said. Unlike automobile "crowd control" tools like barricades, he added, Skanska uses positive protection methods to add a safety layer to the project — a cost the company often has to absorb when state DOTs don’t require it as part of the contract.
Positive protection, as defined by the FHWA, is meant not just to route traffic through a work zone, but also to keep vehicles from entering the work area. These measures include concrete or ballast-filled barriers and shadow vehicles equipped with attenuators, or devices meant to absorb the impact of a crash. These vehicles serve as a buffer between traffic and workers.
On night shifts, aside from the higher likelihood of drunk drivers, visibility is also an issue, according to Peterson. Oftentimes, drivers won’t see a worker unless their headlights happen to hit the right spot on a reflective vest or other piece of safety clothing.
To help address this issue, Skanska uses the Halo Light from Illumagear, which is hardhat-mounted and provides 360-degree illumination. According to Illumagear, the light can be seen from a quarter of a mile away, which comes in handy on projects like Skanska's Interstate 4 project through Orlando, Peterson said.
Skanska has advocated for tightening up existing safety rules, particularly in California where once upon a time, hitting a construction worker with a vehicle might have resulted in only a $300 civil fine. Today, however, hitting a highway worker can be ruled as an assault, with a much higher fine and possibly jail time.
Where special protections come into play
New York construction workers have special legal protection under New York labor laws, and those mostly refer to a construction employer’s obligation to provide a safe workplace, according to attorney Glenn Monk, managing partner at Harrington, Ocko & Monk in New York.
However, this can also include safety from third-party threats if the employer should have reasonable expectation of a problem.
"The general rule is … that owners of premises have a common law duty to keep the [premises] safe from reasonable and foreseeable risk."
Managing partner at Harrington, Ocko & Monk
For example, Monk said workers rebuilding the World Trade Center site use the Secure Worker Access Consortium and its protocol for security and screening, as the perceived possibility of a terrorist incident there is higher than on a typical site. SWAC sites, he said, require authorized personnel to use special IDs and guarded entries to ensure no threats enter the project.
Skanska uses SWAC at its $4 billion LaGuardia Airport project as well, according to Paul Haining, chief environmental health and safety officer for Skanska. "We work with the Port Authority [of New York and New Jersey] on anti-terrorism exercises to identify any specific risks," he said.
Haining said that working at airports now also involves FBI and CIA checks for employees and subcontractors — measures that have uncovered terrorist connections in the past, although not among Skanska employees.
Who holds the responsibility for job site crime
But what about the more common incidents of robberies or assaults of construction workers outside a project not overrun with security?
Monk said employers generally have a responsibility to protect their employees. "The general rule is … that owners of premises have a common law duty to keep the [premises] safe from reasonable and foreseeable risk," he said.
It’s doubtful, Monk said, that an employer of a privately owned office complex project, for example, would be held legally responsible for not protecting employees from a sniper assault. However, if the site is located in a well-known high-crime are, the owner could be expected to monitor access in and out of the site with such tools as security guards and surveillance cameras.
Skanska plans for more than just likely events. "We have a detailed management system that looks at all types of risk from the conceptual through the proposal stage [of a project]," Haining said. "We come up with mitigation plans for pretty much any type of exposure. Everybody from the CEO to the front line is engaged in the process and continually gives feedback to improve and make sure we’re being innovative and proactive."
One of the most effective methods of avoiding violence and theft at construction sites involves reaching out to the surrounding community. Peterson and Haining said the likelihood of violence directed at workers on the site decreases when more locals go to work there.
In addition, Peterson said, if there is theft or violence directed at a Skanska site and those violators are caught, the company does prosecute, making it and its job sites less attractive targets.
"A lot of it is communicating with people that what we're trying to build is for the benefit of their community," Peterson said.
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