Safety

As part of efforts to call out offenders and highlight safety best practices, OSHA frequently publicizes cases where inspections or investigations result in hefty fines. 

The biggest of these cases often involve residential builders that usually have a history of failing to provide workers with adequate protection from hazards — most commonly exposure to heights. In fact, the the agency recently revealed the most frequently cited standard was general fall protection requirements, with 7,271 violations in fiscal year 2023, which ended in September. Employers usually contest the fines and negotiate with the agency to reduce their cost.

Here are some of the largest initial fines highlighted by OSHA in the third quarter of 2023: 

JMH Roofing LLC
Fines: $548,801
Status: Contested

OSHA inspectors allegedly observed employees of Millersburg, Ohio-based JMH Roofing working at heights of up to 19 feet without fall protection at four residential roofing jobsites in Ohio, despite having fall protection available on site.

Within three months on these four sites, inspectors found workers at heights without fall or eye protection while using pneumatic nail guns, according to the release. The company also allowed employees to work without properly extended ladders. 

The eight willful and two repeat violations across four different citations resulted in fines totaling $548,801. 

Jonas Hershberger operates JMH Roofing and RAM Roofing LLC, and OSHA claims he has a “history of disregard for workplace safety regulations, with numerous citations to these two companies since 2018.”

A JMH spokesperson declined Construction Dive’s request to comment on the citations.

Cheltenham Construction Services
Fines: $334,618
Status: Informal settlement ($167,669)

Twice in two months, OSHA inspected a Washington, Missouri, siding contractor’s jobsites, finding it had allegedly exposed workers to fall hazards as they performed roofing and siding work.

The agency conducted two inspections — one in February 2023 in Lake St. Louis and another in April 2023 in O’Fallon — finding the Cheltenham Construction Services had permitted workers at heights above 6 feet without the proper fall arrest systems. In Lake St. Louis, the contractor allegedly failed to protect employees using nail guns from eye and face hazards, according to the release.

Across the two citations, Cheltenham Construction Services faces initial fines of $334,618 from two repeat and two serious violations. OSHA has cited the company seven times since 2015 for fall protection violations.

In an informal settlement, Cheltenham negotiated both of the citations down, and OSHA’s website lists the current penalties at a combined $167,669.

Construction Dive reached out to Cheltenham for comment but did not hear back by the time of publication.

Avila’s Roofing LLC
Fines: $328,143
Status: Issued

An OSHA investigation into a Wilkes-Barre, Pennsylvania, roofing contractor resulted in two willful, two serious and one other-than-serious violation, with initial fines totaling nearly $330,000.

The agency alleges it observed employees of Avila’s Roofing working at heights of up to 27 feet without fall protection in February, and also learned the company had not provided employees with effective safety training on fall hazards. The company also permitted the employees to work without eye and face protection, OSHA said.

The agency has previously proposed $178,649 in citations from five earlier inspections of Avila Roofing jobsites in Honesdal and Scranton, Pennsylvania.

Construction Dive reached out to Avila’s Roofing for comment but did not hear back by the time of publication.

Sonny Steel Erectors Inc.
Fines: $266,416
Status: Contested

Houston-based Sonny Steel Erectors failed to correct fall protection hazards, an issue which the contractor had a history of, a federal OSHA investigation alleges.

Workers erecting a steel building in Cypress, Texas, in February allegedly did not have required fall protection. OSHA cited the company for one serious violation for not securing a ladder, one willful violation for allowing employees to work higher than 15 feet without fall protection and one repeat violation for failing to ensure employees in an aerial lift stood on the basket floor and had a body belt or lanyard attached to the boom or basket. 

The agency previously cited the steel erector company — which has about 50 workers, according to OSHA — in February 2019, July 2019 and October 2022 for failing to ensure a body belt or lanyard attached to the basket when employees worked in an aerial lift. 

Sonny Steel Erectors is contesting the fines. Construction Dive reached out to the company for comment but did not hear back by the time of publication.

Troyer Roofing & Coatings
Fines: $205,369
Status: Contested

In March, an 18-year-old employee of a Missouri contractor fell over 22 feet from a commercial building’s roof and suffered serious injuries, resulting in his death. After the fall, Troyer Constructors — operating as Troyer Roofing & Coatings — allowed a foreman and another employee to continue working without fall protection, OSHA alleged. An inspection also discovered the Jamesport, Missouri, contractor had fall protection available, but let employees choose if they wanted to use it, the agency said.

In addition, the company did not teach workers how to use fall protection, train proper forklift operations, provide workers with face and eye protection or have written hazard communication for sealants and other chemicals, OSHA said.

OSHA cited Troyer Roofing & Coatings with one willful, three serious and one other-than-serious violation, proposing initial penalties of $205,369. The company is contesting the fines. 

A Troyer representative declined to comment on the citations.

Are these boots made for workin’?

Work boots may seem like a ubiquitous piece of protective gear on jobsites, but finding footwear that fits is vital, and injuries can be serious.

The Bureau of Labor Statistics reported 44,970 non-fatal workplace foot injuries and illnesses across all industries in 2020.

Although boots can’t offer 100% protection, they cut down on workplace injuries, whether they stop a nail from piercing an ankle or prevent tendonitis by offering the right support. New advances in material science and a focus on fitting every worker have made work boots more comfortable and easier to wear. 

Puncture-resistant footwear continues to be in demand, said Jordan Gottke, vice president at work boot wholesaler Georgia Boot. But not everyone who needs puncture protection also requires other common safety boot features, like metatarsal guards or steel toes. Boot companies are catering to that need.

Manufacturers have created options that only include that one safety feature, so workers don’t need to pay for extras that might weigh down their shoes and cost more.

Metatarsal guards have also changed. 

“A lot of times, it used to be a really metal black, and it would just be a flap that would be on the top of your shoe that looked ridiculous and really ugly,” said Gottke. Now, workers can buy internal metatarsal guards that go inside the shoe, which is more comfortable and doesn't change how the boot looks from the outside. 

“The technology’s gotten so good that the person wearing it can’t even tell it’s there,” Gottke said.

A shoe-in

The biggest change when it comes to safety, though, has been in better cushioning and comfort, which can prevent the kinds of stress injuries — like tendonitis, plantar fasciitis and stress fractures — that build up over time. Repetitive actions like squatting or lifting commonly create strain on workers’ bodies and cause injury. 

Advances in materials science have enabled new options for things like memory foam and insoles, particularly when it comes to polyurethane, which can make boots less taxing to stand in for hours on end.

“The construction of footwear or even work boots in general really hadn’t changed a whole lot in the past 10 years or even past 30 years,” said Gottke. “In terms of technology, what you do see, especially in work boots, is in newer material and a newer way of doing things.”

Trends generally in footwear, with the rise in popularity of the brands Sketchers and Hoka, and sneaker-shoe blends like those made by Kenneth Cole with Nike technology, mean users can expect more comfort.

That doesn’t mean work boots will look like running shoes anytime soon, said Andrew Estey, co-founder and CEO of Denver-base QLTY Work Boots.

“I think you see an old school approach that’s being married with a modern take on what the visual language of the design of the boot is looking like,” Estey said.

Shoes that fit everyone

Women in construction have long had to wear men’s sizes that best match their feet.

Not only did this mean their boots don’t always fit, but it made finding boots for women with a shoe size of 7 or smaller (equivalent to a men’s size 5.5) especially difficult, said Emily Soloby, founder of Juno Jones Safety Boots, which makes work boots for women.

Women make up 11% of the construction workforce, according to the most recent U.S. Bureau of Labor Statistics data. That number has grown in recent years, but still a fraction of the industry overall, which means making products for them is less profitable than making those for men.

Employers who ignore the issue may not be able to do so much longer. In July, the Department of Labor proposed a rule change to clarify that personal protective equipment for workers in construction must fit, noting the longstanding problem for smaller construction workers, especially women. 

"If personal protective equipment does not fit properly, an employee may be unprotected or dangerously exposed to hazards and face tragic consequences," Doug Parker, OSHA assistant secretary, said in a statement. "We look forward to hearing from stakeholders on this important issue as we work together to ensure that construction workers of all genders and sizes are fitted properly with safety gear."

Boots are part of this equation, said Soloby. Juno Jones Safety Boots, which launched via a Kickstarter campaign in 2020, uses a woman’s shoe last, which is the foot-shaped model a shoe or boot is designed around, to make boots for women instead of shrinking down a men’s shaped model.

She hopes that the success of companies like Juno Jones will prompt other companies to reconsider their stance on making women’s PPE, and how they make it. 

“Perhaps other companies will start to see more and more women are entering the industry and provide some more offerings,” she said.

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By KPA

No two companies are alike. Nonetheless, companies with excellent workplace safety records tend to have a few things in common. They don't worry about regulatory fines or astronomical legal fees, for instance. They also tend to pay lower-than-average workers' compensation insurance premiums.

Where the similarities matter most, however, are not in what these companies have achieved, but how they've achieved it. An exceptional safety record doesn't happen by accident. In almost all cases, it's the result of strategic planning, a commitment to safety, and the right habits—a combination of actions and attitudes adopted by people up, down, and across the organization.

In other words, wherever there are few or no incidents, there's a strong safety culture. And like sustainable ecosystems or winning sports teams, all safety cultures share a few basic elements:

1. Dedication to a goal to improve employee health and safety

Safe companies put their EHS initiatives in writing. They frequently start by setting a goal of zero workplace injuries. That goal may sound unrealistic, and merely establishing it doesn't change anything, but it does provide a shape, a direction, and a set of key performance indicators for the hard work ahead. Safe companies aren't deterred by the effort it may take to reduce incidents. And they know the only way to get there is to define what "there" looks like.

2. Adherence to a safety policy within the company and its supply chain

Safe companies create EHS policies and stick to them. If a zero-injury goal is the "why," policies are the "how." Without them in place, there's no way to consistently ensure and measure proper workplace behaviors. From injury prevention to accident reporting, from equipment checks to hazard communication, effective policies cover as many departments, job functions, scenarios, and variables as possible—and they're followed by workers at every stage in the supply chain.

3. Support for the employee health and safety team

Safe companies know that words on paper alone don't change behaviors. That's why they frequently build EHS teams and designate specific roles within those teams. Team members may include one or more safety managers, supervisors, officers, coordinators, advisors, and/or regulatory liaisons, as well as outside legal and risk management consultants. Whatever the team looks like—however small or large—it's only effective if it remains active and garners support from all levels of the organization.

4. Formalized health and safety training for executives or key employees

Safe companies educate and empower their key personnel to become workforce safety leaders. That means everyone engages in the in-depth, ongoing EHS training they need to do their jobs (and make sure others do theirs) properly. In a strong safety culture, workers undergo training in overall EHS policies and procedures as well as any rules specific to their jobs, sites, and equipment. And when regulations, standards, and technologies change, the company institutes new training to keep workers up to date.

5. Use of a health and safety management system

Finally, safe companies stand out for what they don't do. They don't leave EHS management up to a single individual. They don't try to coordinate everything with binders and spreadsheets. Instead, they use technology to ensure compliance, control risk, and monitor organizational performance. By harnessing a health and safety management system, any organization can minimize busywork, close gaps, eliminate uncertainty, and ultimately stimulate better EHS outcomes. Think of it as the backbone of an effective safety culture.

As we alluded to earlier, it can take a lot of work to nurture a safety culture and keep it alive. You don't have to change everything at once. Instead, focus on adopting just a few essential habits: setting safety goals, adhering to policies, supporting your safety team, training your key employees, and using a system to manage it all.

Why not start today?

Dive Brief:

• A grand jury elected last week not to charge anyone with a crime stemming from the 2019 Hard Rock Hotel construction collapse in New Orleans, which killed three people and injured 30 others. 
• A statement from Orleans Parish District Attorney Jason Williams obtained by CNN indicated the grand jury did not see enough evidence to build a criminal case. Williams’ investigation into the collapse began in 2021 when he took office, which gave him two years to file criminal charges. The grand jury examined the case but decided not to charge anyone before the deadline.
• A lack of cooperation from OSHA hamstrung the case, according to the DA’s statement. Although the agency investigated the collapse, it “hindered our progress by withholding a crucial report for our review,” the statement read, adding the “refusal to disclose all evidence and reports at their disposal severely hampered our presentation.”

Dive Insight:

An OSHA spokesperson told Construction Dive on Oct. 5 that the agency “is aware of the [criminal] case with the DA’s office and the pending deadline,” adding “they’re trying to get things wrapped up” and reach a settlement imminently. Following the grand jury’s decision, OSHA could not be reached for comment. 

The hotel project at 1031 Canal Street in the city’s central business district partially collapsed on Oct. 12, 2019, as it was under construction. The bodies of the slain workers — Jose Ponce Arreola, Anthony Magrette and Quinnyon Wimberly — remained in the wreckage for months.

Later, footage showed former workers expressing concern about support beams, and a flurry of civil lawsuits followed, alleging the project used poor design, improper building practices and unskilled workers.

Federal OSHA’s initial investigation concluded in April 2020, when the agency announced citations for engineer Heaslip Engineering, general contractor Citadel Builders, Suncoast Projects (doing business as Hub Steel) and eight subcontractors as a result of the collapse. 

Collectively, builders faced $315,536 in penalties:

• Citadel Builders faced three serious violations for inadequate egress from the building. Initial fines totaled $28,338, but the general contractor settled for $21,254. Other subcontractors also failed to provide emergency egress and fall hazard training, the agency found. Citadel could not be reached for comment.
• Steel provider Suncoast Projects failed to maintain structural stability of the building, according to OSHA. The initial fines hit $37,191, but Suncoast is contesting the citation. Construction Dive attempted to contact Suncoast through a publicly available email for Hub Steel, but did not hear back by time of publication. 
• The agency determined Heaslip Engineering “failed to adequately design, review or approve steel bolt connections affecting the structural integrity of the building,” resulting in one willful violation with an initial fine costing $154,214. The company also contested the fines. Construction Dive attempted to contact Heaslip via a publicly available email, but did not hear back by time of publication.

Contested fines can lead to long settlement talks. The agency still hasn’t announced a settlement in its case with Heaslip or Suncoast, and OSHA doesn’t share information from open cases, the spokesperson told Construction Dive Oct. 5.

Legal order of things

These cases tend to follow an order of operations, and criminal penalties usually come first, said Carol Sigmond, partner at law firm Greenspoon Marder in New York City.

“The reason is that the administrative agencies do not want to create potential due process issues as to the right against self-incrimination,” Sigmond said. “OSHA could have proceeded but I believe general good government policy nationally is to hold administrative proceedings in abeyance until the criminal proceedings are concluded.”

Sigmond added the local statutes may not be “on point,” as criminal charges must tie to a specific law, and if the language or application is too narrow or the intent standard too high, that could mean criminal charges are harder to prove.

Nonetheless, she emphasized contractors shouldn’t want to engage with OSHA to settle a case like the Hard Rock until criminal charges were closed, as prosecutors could use admission of guilt in a civil enforcement case against them.

By the same token, OSHA may elect to keep the investigation open for as long as possible, said Trent Cotney, partner and construction team leader at Tampa, Florida-based law firm Adams and Reese. 

The longer a case stays open, Cotney said, the more time there is for new evidence to come to light or for the subject to commit another violation, adding to the citations issued.

Modular or prefabricated building methods are pitched as a way to cut down on labor, material, time and costs. And because most of the construction work is done in a factory setting instead of in the field, it’s also presented as a safer option.

But work on modular projects, both in the factory and on site, isn’t without hazards. That said, the number of hazards are lower and standards different, experts say. 

Work in a controlled factory setting means that employees face less risk for changing site conditions, said Amit Haller, co-founder and chief executive at Hayward, California-based Veev, which builds modular homes. 

Veev builds most of its homes — which are about 2,500 square feet — in a factory, where workers aren’t subject to heat, wind, rain or storms. 

“Whatever we can do in the factory, we move to the factory because it’s a much more controlled environment and much easier to deploy safety regulations,” Haller said.

A factory setting means it’s also easier to cut down on debris and keep the environment clean. Builders can deploy technology like robotics, “which are reducing significantly the number of people interacting with a dangerous task,” he added.

Building modules in a factory setting also reduces fall risk simply because employees work from lower heights. Falls killed 390 construction workers in 2021, according to the most recent OSHA date, more than any other cause.

“In the factory everything we do is at grade,” said Vaughan Buckley, CEO of Philadelphia-based Volumetric Building Companies, which has five factories across the world and builds for a variety of sectors, including housing and hospitality.

In addition, fall protection is easier to install and maintain in an environment that doesn’t change much vs. the field, where conditions can change constantly.

Buckley said that they have also found more ease with supervision and quality control in a factory setting. The company uses a combination of a safety team and artificial intelligence to “identify when PPE is lacking on the floor, and when folks are doing things that are unsafe,” he said.

Of course, no work environment is 100% hazard free. In modular assembly facilities, the majority of common worker injuries mirror those of traditional factory work, such as soft tissue injuries, like strains and sprains, he said.

Safety by setting

Once prefabricated units arrive at the jobsite, a new set of safety standards comes into play. Curtis Chambers, certified safety professional and president of OSHA Training Services, said that OSHA regulations differ from the factory to the field. 

For example, home-building activities that take place on a construction site would follow OSHA construction standards. But components fabricated in a shop-type environment are regulated by the OSHA general industry standards. 

If a builder fabricates in a factory and then assembles components in the field, then both apply to their relative environments, he said.

“You have to make sure you understand which set of rules apply,” he said. For example, the threshold for needing a fall protection system in the shop is 4 feet, whereas the threshold for construction is generally 6 feet or higher, depending on the jobsite.

Chambers added that workers should be trained and skilled up for the environment in which they work. Someone who builds components in a factory may need additional training to then put together those components in the field. 

“You don’t want someone used to climbing up and setting a 2x6 and 2x8 rafters, and all the sudden they’re swinging panels,” he said.

Dive Brief:

• A Texas judge has ruled unconstitutional a law that would ban some local ordinances in the Lone Star State. On Aug. 30, State District Judge Maya Guerra Gamble of Travis County sided with the city of Houston, which had filed suit against the state earlier this summer, claiming the law signed by Gov. Greg Abbott in June overstepped his powers.
• Most notably for contractors, the Texas Regulatory Consistency Act, named by some opponents as “The Death Star Bill,” eliminated mandatory water breaks in cities such as Austin and Dallas. Supporters of the law claimed it would reduce cumbersome and varied rules across the state, but Houston Mayor Sylvester Turner called it a “power grab” by the state legislature.
• The state has appealed the decision to the Texas Supreme Court, the Texas Tribune reported. The law was supposed to go into effect Sept. 1.

Dive Insight:

In addition to eliminating water breaks, the Texas law would have nullified city ordinances like requirements for employers to provide workers with paid sick leave, and, for example, in Harris County, a $15 minimum wage for workers on county construction projects and safety training. 

Nasty record heat this summer killed more people in Harris, Fort Bend and Montgomery Counties than in any of the previous five years, according to ABC13 News. Houston is within Harris County.

Meanwhile, OSHA still lacks an enforceable federal heat standard, which likely will remain the case for some time, as developing one takes years. Nonetheless, the agency issued a national emphasis program in April 2022, pushing the credo of “Water. Rest. Shade.”

Julie Su, acting secretary of labor, said during a virtual press conference Thursday the Department of Labor has been rebuilding its own workforce under the Biden-Harris administration. The agency sets federal standards, but states like California, Colorado, Minnesota, Oregon and Washington have additional standards that go beyond OSHA’s guidance.

Su said she has toured the country and spoken to small businesses about heat hazards.

“Most employers across the country want to do the right thing … they comply with standards,” Su said. “Employers who understand that the best investment they can make is an investment in their workers do well.”

Dive Brief:

• A newly proposed rule from OSHA could mean more eyes on the jobsite during an inspection, and some contractor groups aren’t happy about it. The change proposed Wednesday to the “Representatives of Employers and Employees” regulation would allow an authorized representative to accompany an OSHA compliance officer “when they are reasonably necessary to aid in the inspection” of a worksite, even if they have no involvement with the project.
• That representative would be authorized by employees or a third party such as an employee or union representative, even on non-union jobs. OSHA said the rule change will improve inspections by enabling workers to have representation during safety inspections and making it easier for compliance officers to obtain necessary information about workplace safety.
• Associated Builders and Contractors, which has opposed similar rulings, released a statement against the rule change. “By allowing outside union representatives access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” said Ben Brubeck, vice president of regulatory, labor and state affairs.

Dive Insight:

While ABC said it will review the proposed rule and assess options for a legal challenge, unions came out in its favor.

“NABTU supports DOL and OSHA ensuring construction workers have safe workplaces including ensuring that our union representatives, who may not be direct employees of the project employer, may accompany and assist OSHA in an inspection,” North America’s Building Trades Union President Sean McGarvey said in a statement shared with Construction Dive.

The potential change would codify how the agency has long interpreted a rule that states a compliance officer can permit an employee representative accompany them, even if the rep. has no direct involvement in the project. 

In 2013, OSHA issued an official rule interpretation letter in response to an inquiry, saying a union member could represent employees during a walkaround even without a collective bargaining agreement in place. The National Federation of Independent Business sued OSHA in 2016, saying the letter indicated a new rule without engaging in the rulemaking process. 

In 2017, former President Donald Trump’s administration rescinded the interpretation letter.

Now, OSHA is looking to go through that rulemaking process, to fall in line with the manner it had interpreted the rule before, which specifically uses the examples of industrial hygienist or safety engineer as potential walkaround reps.

An increased disruption

Trent Cotney, partner and construction team leader at Tampa, Florida-based law firm Adams and Reese, said contractors worry that employees may select a representative who:

• Is biased and/or uninformed.
• Is disruptive or causes more safety issues.
• Discloses customer information to third parties.
• Brings union presence or interference to a nonunion jobsite.

Carol Sigmond, partner at New York City-based law firm Greenspoon Marder, said she understands why groups like the ABC oppose the rule.

“Management is going to not like having unions and OSHA working together on safety inspections at the local level,” Sigmond said. “These walk-arounds can be disruptive, management tries to control the process [and] the unions want more say and access.”

Employers see OSHA as a safety agency and not a labor one, Sigmond said, and the presence of local unions with their own viewpoints vying for variations opposes one voice from OSHA. 

OSHA is accepting comments on the rule change through Oct. 30.