The U.S. Department of Labor (DOL) recently announced that an owner of a roofing business in Maine is personally liable for nearly $1.6 million when they willfully exposed workers to fall hazards resulting in a fatality. Before the fatal incident and subsequent inspections, the Occupational Safety and Health Administration (OSHA) had cited the owner for violations at least five times beginning in 2006. These included a failure to ensure employees wore proper fall protection. According to OSHA, fall hazards are the number one cause of fatal workplace injuries. Additionally, they are the most frequently cited violation during construction industry inspections. In May 2023, OSHA launched a National Emphasis Program to prevent falls.
Background of the Violations
In sum, OSHA cited the owner and his company for 14 willful, two repeated, and four serious workplace safety violations after several inspections. OSHA opened its first inspection in 2018 after a fatal incident in which an employee fell more than 21 feet from a steep pitched roof. As a result of that initial inspection, OSHA determined that the owner failed to ensure that employees wore the required fall protection. Days after the first inspection, OSHA found similar hazards involving exposures to fall hazards of up to 15 feet at other worksites under the same owner. In 2019, OSHA found that the owner exposed employees to fall hazards of up to 21 feet. The owner contested all citations.
Employer Duty to Prevent Fall Hazards
Fall hazards are one of the most common workplace hazards and can be present on any walking/working surface. In fact, any walking/working surface four feet or more above a lower level in the general industry poses a greater risk of a fall.
Under OSHA’s Fall Protection Standard 1926.501, employers must provide fall protection systems where applicable. The Fall Protection Standard provides criteria for fall protection systems required for each type of walking/working surface present in the workplace. Fall protection systems must be present at elevations of four feet in general industry workplaces, five feet in shipyards, six feet in the construction industry, and eight feet in longshoring operations. In addition, employers must ensure protection when employees work over dangerous equipment and machinery, regardless of the fall distance. Steps employers must take to prevent fall hazards include:
- guarding floor holes with a floor hole cover;
- providing a guard rail and toe-board around elevated open-sided platforms, floors, or runways; and
- utilizing personal fall arrest systems (PFAS), safety nets, or travel restraint systems.
Judgment in the Case
In a 2021 hearing, Occupational Safety and Health Review Commission Administrative Law Judge Carol A. Baumerich issued a decision affirming the OSHA citations. Judge Baumerich also found the owner personally liable for the assessed penalties. Although the owner operates the roofing business as a corporation, Judge Baumerich concluded that achieving the purpose of the Occupational Safety and Health Act (OSH Act) required them to “pierce the corporate veil” to determine liability. Additionally, Judge Baumerich, after analyzing the employment relationship, negated the owner’s claim that the workers were independent contractors not protected by the OSH Act. In the end, Judge Baumerich found the owner failed to protect workers from fall hazards and found him personally liable for $1,572,340 in OSHA penalties.