By Homer R. Peterson II, P.E., CSP
Construction Falls are the Leading Cause of Construction Worker Deaths
According to the U.S. Bureau of Labor Statistics, 4,251 workers were killed on the job in private industry in 2014. Construction worker deaths accounted for 874, or 20.5%, of these worker fatalities. Construction falls are currently the leading cause of construction worker deaths, causing 40 per cent of the 874 construction deaths in calendar year 2014. Falls are also a major cause of fatalities in general industry. Falls, slips, and trips caused 17% of all occupational fatalities in 2014 and are currently the second-leading cause of all fatal occupational injuries, trailing only transportation incidents. These statistics highlight the importance of proper use of fall protection in both general industry and construction work.
Steel erection work accounts for a significant number of these injuries and deaths. Let’s look at two case studies which bring these statistics to life.
CASE STUDY # 1
CS subcontracted to perform steel erection work for a steel-framed project (the “Project”). Ironworker KN was employed by CS on the Project and was welding bar joists while seated on a beam at approximately 18 feet above the ground. Although KN was wearing a personal safety harness, he was not tied off when he fell from his seated position to the ground below. KN’s death approximately five weeks later resulted from injuries sustained in the fall. Prior to KN’s accident, OSHA representatives observed a different CS project, videotaped CS ironworkers on that project working without fall protection, and showed their videotape to CS management. Six days prior to KN’s accident, CS issued a memorandum to all CS projects that discussed the incident and reminded employees of the seriousness of using fall protection. The day after issuance of the CS memorandum, DB, who was KN’s foreman at the Project, held a safety meeting at which he read the memo to CS employees. Between the time of the safety meeting and the day of KN’s accident, DB was aware that neither he nor any of his crew tied off while working and DB took no action to compel his CS crew workers to tie off.
The court DENIED CS’s motion for summary judgment leaving the issue of “deliberate intention” to the jury.
CASE STUDY # 2
Owner MC hired contractor AB to serve as general contractor for construction of a steel-framed building. AB hired subcontractor HS to erect the steel framing and metal decking upon which concrete floors would be poured. HS cut a hole in the metal-decked floor as required by the project plans. After completion of HS’s work, Plaintiff, an AB employee, fell through the hole that had been cut by HS. Plaintiff was injured in the fall and argued that HS owed a duty of care to Plaintiff and that under OSHA’s multi-employer citation policy, HS had a duty to provide adequate protection for the hole because HS was the party that created the hazard. HS brought a summary judgment motion for all claims asserted against it. District Court granted the motion and entered judgment, finding that HS owed no legal duty to Plaintiff. Plaintiff appealed.
Summary of Court of Appeals Decision
- OSHA contains general fall protection regulations for construction workplaces.
- Steel erection work is governed by a separate, more specific set of regulations.
- It is undisputed that HS was engaged in steel erection work.
- 29CFR§1926.760 (e) requires that the steel erector leave fall protection in place for use by other trades only if the controlling contractor has directed the steel erector to leave the fall protection in place and has inspected and accepted control and responsibility of the fall protection prior to authorizing persons other than steel erectors to work in the area.
- AB did not direct HS to leave fall protection in place and did not inspect and accept responsibility for any HS fall protection equipment.
- The court did not agree that OSHA’s multi-employer citation policy imposed a duty of care on HS for purposes of tort liability. The policy does not set forth separate OSHA standards that could create a duty of care; rather, it provides guidelines for issuing citations where OSHA standards have already been violated. Applicants did not establish the violation of any OSHA standard applicable to HS.
- HS owed no duty to Plaintiff.
- The Appeals Court AFFIRMED the District Court’s decision.
Steel Erection Fall Protection Requirements – Background
Steel erection work is different than the work of most other construction trades in that it often involves the creation of work surfaces and leading edges where none existed previously. Work performed from these work surfaces and in proximity to these leading edges can be at elevations that are significantly higher than the elevation of the ground or other protective work surface below. By definition, the occurrence of work at elevation leads to exposure of workers to potential falls from height. In addition, steel erection work is often performed on the upper level of a structure, with no structure above, and therefore no anchorage points above to which ironworkers can tie off. This means that there are fewer fall protection options available for use by ironworkers working on the upper level of a structure. For these reasons, ironworkers can be exposed to fall hazards that require fall protection solutions that are unique to the steel erection industry.
In consideration of the unique nature of steel erection work, the federal construction safety regulations include particular standards that are specifically applicable to the steel erection industry. The OSHA regulations specific to steel erection work are found in 29CFR Part 1926 Subpart R Steel Erection. OSHA regulations specific to steel erection fall protection are found in Subpart R’s section 29CFR§1926.760 Fall Protection.
The federal regulations provide minimum fall protection requirements for steel erection work, but do not dictate the industry’s standard fall protection practices, as steel erectors are free to provide fall protection above and beyond Subpart R’s minimum requirements.
29CFR§1926.760 Governs Fall Protection Requirements for Steel Erection
Per 29CFR§1926.20 (d) (1), if a particular standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process. Accordingly, section 29CFR§1926.760 prevails over any different general standards regarding steel erection fall protection, and fall protection requirements for employees performing steel erection work (except for towers and tanks) are provided exclusively within this section. Section 29CFR§1926.760 Fall Protection consists of five sub-sections:
29CFR§1926.760 (a) General requirements.
29CFR§1926.760 (b) Connectors.
29CFR§1926.760 (c) Controlled Decking Zone (CDZ).
29CFR§1926.760 (d) Criteria for fall protection equipment.
29CFR§1926.760 (e) Custody of fall protection.
Contract issuers such as owners, construction managers, and general contractors frequently bind steel erectors via contract provisions to project rules requiring tie-off for all steel erection work at a lower threshold level than required by OSHA standards. For construction, for which OSHA has general requirements to provide fall protection above 6 feet in height in section 29CFR1926.501 (b), contract issuers should consider requiring an identical 6 foot fall protection threshold for steel erection work in order to provide increased protection for workers, as well as consistency in safety training and enforcement. Whenever such a lower threshold level is required by a contract issuer, it is recommended that such requirements be clearly delineated in the contract documents prior to award of subcontracts to avoid change order requests after execution of the contract.
Connector Tie-Off Protection
For many years, the steel erection industry has maintained that connectors should not be required to tie off so that they can move about without restraint. The argument in favor of this freedom of movement is that it allows connectors to be able to avoid incoming loads and to jump to safety from collapsing members or structures. While incoming loads and structural collapse pose risks to connectors who are tied off, it is my opinion that under most circumstances these risks are outweighed by connectors’ risk of serious injury or death as a result of unprotected falls from elevation.
Steel erectors should weigh the risks discussed above in considering whether or not to establish a policy that eliminates the OSHA tie-off exemption for connectors performing steel erection work up to 30 feet above the ground or protective surface below. Such an elimination of the connector exemption from tie-off requirements up to 30 feet would exceed OSHA’s fall protection requirements and is not standard practice in the steel erection industry.
Metal Decking and Controlled Decking Zones (CDZ’s)
Some Steel Erection Negotiated Rulemaking Advisory Committee (SENRAC) members initially opposed the use of CDZ’s during the installation of metal decking, but their opposition eventually was removed. This opposition was rooted in OSHA/SENRAC fatality study statistics that revealed decking activity to be the most dangerous steel erection activity and in a sense that falls are likely the cause of most decking fatalities.
Each steel erector should make its own comparison of the risks to ironworkers while installing metal decking utilizing 100% tie-off versus the risks to ironworkers installing metal decking in CDZ’s, and should then consider whether or not to establish a policy that eliminates the OSHA tie-off exemption for workers in CDZ’s installing metal deck up to 30 feet above the ground or protective surface below. Such an elimination of the metal deck installer exemption from tie-off requirements while working in a CDZ up to 30 feet would exceed OSHA’s fall protection requirements and is not standard practice in the steel erection industry.
Transfer of Custody of Fall Protection
Barring a transfer of custody of fall protection, steel erectors will usually remove all erector-provided fall protection from an area upon completion of the erector’s work in that area. Accordingly, proper transfer of custody of fall protection can be an important issue when other trades want to use that same fall protection after the erection work has been completed.
OSHA regulations 29CFR1926.760 (e), 29CFR1926.760 (e) (1), and 29CFR1926.760 (e) (2) do not require documentation of completion of the requirements contained within those regulations. However, prior to leaving erector-provided fall protection in place for use by other trades, I consider it to be a best practice for either the controlling contractor or the steel erector to document both the completion of the requirements of those regulations and the transfer of custody of fall protection. For larger projects, it may be advantageous to provide multiple transfer documents to cover the transfer of custody of fall protection in distinct areas, buildings, phases, levels, or sequences as the erector completes one area and moves to another.
Creation of a form or checklist to serve as documentation of the transfer of custody of erector-provided fall protection has the potential to:
- Provide a clear delineation of the responsibilities of the controlling contractor and the steel erector in areas where steel erection activity has been completed,
- Serve as a reminder of the steps required to meet the requirements of OSHA’s regulations regarding custody of fall protection, and
- Reduce fall hazards exposure for workers in trades that follow steel erection work.
Transfer of custody of fall protection forms or checklists should include all information deemed to be worthy of documentation.
It is this author’s hope that the topics addressed and recommendations made herein will help to increase industry awareness of the fall hazards that may be encountered in construction work and will lead to a reduction in the number of occupational injuries and fatalities.
About the Author – Homer R. Peterson II, P.E., CSP
Homer R. Peterson II, P.E., CSP serves as President of Peterson Construction Consulting, Inc. He provides consulting services, including expert witness services, to attorneys, insurance carriers, and companies engaged in both construction and general industry. He provides arbitration services through the American Arbitration Association (AAA). Throughout a 40-year career involving construction, steel erection, safety, and fall protection on more than 350 projects located in 21 U.S. states and territories, he has observed the policies, programs, procedures, standard practices, and best practices of more than 80 general contractors and numerous specialty contractors. More information is available at www.homerpeterson.com.
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