OSHA Says I Should Have Had Fall Protection

americangutters

Cal-OSHA Fall Protection Appeal read

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Next Thursday I go before Cal-OSHA appeals ALJ (Administrative Law Judge) to hear my case regarding an employee falling from a two story residential. First off, he's ok. Broke his arm and has fully recovered, but it still doesn't make me feel better. He could have died or worse, been a quad for life!

Now I'm faced with an uphill fight against OSHA and I want to know what some professionals think here. I'm only fighting this because I feel this accident wasn't all my fault and I feel like I'm getting hammered.

Accident: 30 sheets of OSB are loaded onto the roof by the roofing supply company the day before the accident. Tear off was complete before the supply company stacked the OSB at the ridge (on 4:12 pitch), using three rolls of felt underneath to keep the stack level.
The next morning, the seamless rain gutter company shows up and begins installing the gutters. The roofing crew shows up and starts laying felt (*the OSB was loaded on the roof by mistake. A seperate tear off crew removed the shake roof and found the roof was already fully sheeted, but OSB order wasn't cancelled in time). Now, the roofing crew is laying felt on one side of the roof and the gutter installer is on the other side hanging gutters. The entire stack of OSB comes off the felt rolls and takes the rain gutter worker over the side.

Cal-OSHA fines me for failure to utilize personal fall protection - $13,000

Roofer gets fined $1,500 for not reporting the accident.

In California during roofing operations, the trigger height is over 20 feet. The gutter installer was at 17 feet at the time of the fall.
However, Cal-OSHA classifies gutter installers as "industrial" and under different safety orders, 6 an 1/2 feet

I didn't rig a safety harness for two reasons
1) Roofing Operation safety orders specify 20 foot trigger height and I thought I was covered there
2) I couldn't anchor to the ridge or anything else on the roof due to roofing crew all over it and laying down felt.

This is going to be a tough case and I respect the roofers whom I've worked with for years. This was an experienced roofer who overlooked the OSB and I was resentful for sometime, but thankful my employee recovered.

I think OSHA's double standard on safety orders during roofing operations needs to be called out. I know I aint got much chance, but please help if you have some real insight.

I want to know specifically why the roofing trigger height is different for roofers than it is for gutter guys? And if you want to criticize me feel free. I should have used fall protection OR pulled off the job until the roof was done.

Mike

Cole

Mike, sorry to hear about that.

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PipeGuy

Mike, what is your company's role in the project? GC or sub? Who were you working for?

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Fortunately I keep my feathers numbered for...for just such an emergency. -Foghorn Leghorn

americangutters

Pipe Guy...I was a sub for the roofer. I am a gutter guy.

Cole

Who is the General Contractor on the project?

Dont name, names but he should be held liable over all of the subs working.

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americangutters

No GC Cole. It was a residential re-roofing contract

PipeGuy

I think I'd have to go downtown with my customer if his improperly secured sh*t fell on my man, he didn't report it to OSHA and I was faced with sucking up a 13K fine. By the way, how did OSHA find out about it? Did you report it?

__________________
Fortunately I keep my feathers numbered for...for just such an emergency. -Foghorn Leghorn

americangutters

PipeGuy.....you got it, right after I left my guy at ICU with tubes and all hanging out of his mouth I went to OSHA personally and reported the whole thing AND provided photos of the load I pulled off him AND the pool of blood from his split skull!

Photos never showed up in the report! Go figure

PipeGuy

If I didn't have a contract that held my customer harmless, I'd probably sue him to recover the portion of my damages that can be assigned to his contributory neglicience.

__________________
Fortunately I keep my feathers numbered for...for just such an emergency. -Foghorn Leghorn

Teetorbilt

I'd question the rolls of felt being used to hold up 30 sheets of OSB. These are certain to compress under constant load and cause the stack to tilt. In my non-legal opinion, whoever placed the OSB would be at fault. It's like a timer on a boobytrap.

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You can't solve you're problems with the same level of thinking that created the problems.

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Safety-Guy

The 20 foot trigger hight is for roofers, and as you said you are the gutter guy.
Gutter installers are not covered under the roofing exception.
You as the employer are required to follow Cal-OSHA regulations. Those that contribute to an accident can also be fined BUT the fact remains that your employee was not protected from the fall hazzard.
Cal-OSHA is tough, usually more stringent that Fed OSHA. A properly built scaffold would cover fall protection requirements for you, I know the cost would put you out of the running when jobs are bid.
A cost study was done here in florida on residential construction and found that to provide proper fall protection to roofers, frammers and anyone else working on a house exposed to a fall of greater than 6 feet would add $30,000 to the cost of a new home.
Your best bet would be to go into the hearing with a copy of your fall protection policy and training records. If your employee was properly trained and failed to follow company guidelines then that may help you, throwing the employee under the bus. This may get the fine either reduced or eleminated.
Good Luck.

Teetorbilt

Safety-guy, you object to the fault being placed on the people that used felt rolls to block all of that OSB? IMHO, this is the crux of the situation.

__________________
You can't solve you're problems with the same level of thinking that created the problems.

Albert Einstein

joasis

Another thank God I ain't in California.....The OSB placed on the roof was a bad decision, period...improperly secured...way bad. I would sue the roofer for the fine and medical costs..and there we go with the lawyers and lawsuits....When we do high roofs, and if at all possible, I use scissor lifts (rough terrain) and my utility truck has a scissor lift bed (OSHA aproved fior staging). We use the same equipment on steel buildings and doing siding work up high when practical. If I were doing gutters, which I don't, i would have used this equipment and not fall protection...now what if OSB landed on a lift and tuned it over, injuring or killing an employee? Since the fall protection was covered, then who would OSHA go after?

briselec

Yes, but that's not the issue he needs to address at his appeal. He needs to prove that he cares about his workers and tries to provide a safe workplace. That's the only thing that will help reduce the size of the fine. Going on about what someone else did that caused the fall won't help him one bit and could very easily make it worse for him.
From an OHS point of view, saying that the felt rolls weren't adequate to hold the OSB begs the question why did you not assess that risk and take appropriate action.

AtlanticWBConst

Get a GOOD Lawyer who specializes in defending contractors in such cases. Sometimes, the money you spend on a lawyer is only a fraction of what the fines would have been....they know all the defenses and loopholes to pursue.


Tho, I've never been in your spot, it's what I have found and seen in other situations.
-my 2 cents

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- Build Well -

Grumpy

That's not true at all. Liability is pushed down the chain to the sub. Of this I am 100% sure. It's not the GC's fault to train the sub or his crew.

By the way you don't need a lawyer to represent you in OSHA matters. I'm suprised you haven't been slammed by calls from various consultants offering to represent you. At the last company I worked for, we got hammered with 3 sitations at once. We paid a consultant something like $700 to represent us. For that $700 he put together a saftey program as well. He was able to get 2 of the sitations dismissed and the other 3rd one reduced, since it was for not having a written saftey program... and then we had one.

Safety-Guy

No I do not object.
The root cause of the accident was the OSB I agree 100% BUT that does not releive an employer from providing his employees with the required fall protection.

Teetorbilt

I have never had to deal with OSHA other than compliance. In a court of law, the responsibility would fall on the party that actually placed the OSB on the roof in an inproper manner. Of this I am sure.

__________________
You can't solve you're problems with the same level of thinking that created the problems.

Albert Einstein

Grumpy

but Teetor, that would be a civil suit. Can AmericanGutters seek to sue the roofing supplier for his OSHA fines? Yes, I believe he would have grounds for a law suit. I'm no lawyer and it would seem like common sence, but law is seldom common sence... and loading plywood on a roof also involved no commonsense.

americangutters

By the way, I sold the business after this accident. There's not enough money in gutters to justify the risk and/or safety coverage required to compete. Too many gutter guys in California now without license, insurance, or legal labor. Anyway.....

Thank you all for replying. I'd still like to keep this topic going at least until the hearing.

Safety Guy - I agree with you to the extent that I am responsible for fall protection. But at the time of the accident the job-site (the roof) was under "roofing operations". A roofing crew was active and in process of covering roof. I had nowhere to anchor a harness nor was it feasible to run life lines across the deck with people walking about.

Another point is this (all you roofers out there help me on this one):

1) Had the roofing contractor elected to do the gutters himself on this job and the same accident occurred, I believe he would NOT have been cited because he was a roofer and the 20 foot rule applies to him and his crew.

Am I wrong? Is there a double standard?

To the suggestion of suing the supply company I also agree that they should pony up their share of the liability here, I'm just afraid that in a Civil Court they will scrutinize my failure to utilize fall protection, then I'm out all that money to bring suit against them + the OSHA fine......sheesh.