Construction Law: Stand-Down

Fall Into Safe New Year Habits

by Dillon Fulcher, Cotney Construction Law









(Editor’s Note: Dillon Fulcher is an attorney at Cotney Construction Law with extensive experience on a range of construction and related matters. Cotney Construction Law is an advocate for the roofing industry and General Counsel of Western States Roofing Contractors Association. Fulcher can be reached at (866) 303-5868.)


Do you have a site-specific safety plan and worker rescue plan in place? With the arrival of the new year, now is the time to take additional steps to protect your employees and your business. As you know, roofing contractors are subject to the Occupational Safety and Health Administration (OSHA) rules, and failure to abide by them can expose your employees to dangerous risks or lead to stiff monetary penalties for the employer. Are you doing all that you can to ensure worker safety and your business’s profitability?

Four of the ten most frequently cited OSHA standard violations in 2017 directly impact the day-to-day activities of roofing contractors. Those violations are fall protection, scaffolding, ladders, and fall protection training. The common denominator of all these violations is falls. According to the Bureau of Labor Statistics, falls are the leading cause of fatalities and the third most prevalent cause of non-fatal injuries on construction sites.

In recent years, OSHA has made targeted efforts to decrease fall fatalities and injuries in the construction industry. Increases in the number of citations issued and the penalty amounts for those citations are evidence of that fact. However, fining contractors into submission is neither OSHA’s goal nor the primary means of encouraging compliance. Rather, OSHA is raising awareness of fall dangers through its Stand-Down campaign. OSHA’s sixth annual Stand-Down will take place nationwide May 6-10, 2019.

The Stand-Down is a voluntary event for employers to take the time out of the workday to talk directly with employees about fall safety, hazards, and the importance of fall protection. An employer may consult its regional Stand-Down coordinator if it wishes for an OSHA representative to be a part of its program. An employer’s Stand-Down need not be elaborate, nor take place every day of Stand-Down week. However, an employer will open themselves up to less risk by having a knowledgeable and safe work force.

In implementing a Stand-Down, employers may consider conducting a fall protection demonstration, equipment inspections, distributing stickers or handouts, hanging posters, and conducting toolbox talks. It is easy for workers to commit themselves to a passive mentality when it comes to safety on the job. To combat this, utilize real-life stories to drive the reality of fall hazards home. On larger projects, roofing contractors should encourage other trades and contractors to Stand-Down as well. A construction site is only as safe as its weakest link.

It is especially important that other trades on a jobsite also follow the OSHA rules, because even if a roofing employer’s own workers did not create a citable hazard themselves, the employer may face liability as a controlling or exposing employer under OSHA’s Multi-Employer Citation Policy. This policy cites the employer who created the hazardous condition, but also the employer whose own employees were exposed to the hazard. The exposing employer is citable for the creating employer’s violation if the exposing employer knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition and failed to take steps consistent with its authority to protect its employees. If the exposing employer lacks the authority to fix the hazard, it must ask the creating employer or controlling employer to correct the hazard, inform its employees of the hazard, and take reasonable alternative protective measures.

As to an employer’s own duties, the General Duty Clause explicitly assigns the employer the responsibility of providing its workers with a workplace that is free from recognized hazards. Of course, the most straightforward way for an employer to fulfill its general duty is to comply with all OSHA regulations and standards. While that may be easier said than done, OSHA singles out planning and training as focal points when addressing jobsite safety.

When developing a site-specific safety plan, an employer should consult Subpart M of 29 C.F.R. 1926. This subpart lays out fall protection requirements on the basis of roof slope and roofing operation. When estimating the cost of a job, employers should include the cost of necessary safety equipment and should plan to have all the necessary equipment and tools available at the jobsite. In the event that a properly harnessed worker does fall, the importance of a worker rescue plan cannot be overstated. Time is of the essence when a fallen worker is hanging by their personal fall arrest system. If left dangling, a medical emergency known as suspension trauma may threaten the worker’s life. This trauma is the natural result of a person being held motionless in a vertical position for a time and may cause unconsciousness or even death. For these reasons, the availability of rescue personnel, ladders, and equipment should be evaluated prior to the start of a job.

A roofing employer must certify that any of its employees who may be exposed to fall hazards have been specifically trained in fall hazard recognition and mitigation. Additionally, OSHA encourages, and some states require, employers to have workplace injury and illness prevention programs in place. Because employers have a legal obligation to help each of their workers return home safely, OSHA compliance must start with you, the employer.

OSHA regulations can be confusing and intimidating, but it doesn’t have to be that way. It is wise to consult an attorney to help you navigate this safety landscape and provide guidance on an overall safety plan. Additionally, Stand-Down participation is a perfect opportunity for an employer to lead by example. An employer should strive to make its Stand-Down more than another toolbox talk. By participating, the employer will be investing in both its workers’ safety and its financial success. Injuries and deaths from falls are preventable. Mark your calendars for the second week in May and make a commitment to Stand-Down.