Remodelers Liable for Trade Safety

Remodelers could be cited for OSHA violations even if their employees are not exposed to the hazard, under California's recently enacted OSHA reform law, which makes Cal/OSHA the most rigorous regulations in the nation.

The new law, which took effect Jan.1, contains the Multi-Employer Worksite Rule. Under this rule, construction employers, such as builders, remodelers and general contractors, can be considered the controlling employer and are responsible, by contract or actual practice, for safety and health conditions on the worksite. Because they schedule the activities of trade contractors, provide site coordination, and safety services for all workers on the site, construction employers can be cited whether their own employees are exposed to the hazard.

The major changes to the law involve penalties. "The kinder, gentler OSHA was seeing limited success, so they're going back to what's tried and true--higher fines," says Peter Kuchinsky, construction safety specialist and owner of Construction Building Analysts in Vista, Calif.

In fact, penalties for serious violations, where the employer is aware or should be aware that there is a substantial probability that death or serious physical harm could occur, jumped from the current $7,000 fine to $25,000. California's serious violation fines are approximately three-and-a-half times more than federal OSHA penalties. Penalties for failure to abate a violation can be subject to fines from $5,000 to $15,000 per day under the new law. Criminal penalties for willful violations, which are committed with an intentional disregard of, or plain indifference to, the requirements of OSHA regulations by a manager or supervisor that cause death or serious injury, can be prosecuted as a misdemeanor with up to one year in jail and $100,000 fine. If prosecuted as a felony, an individual can be subject to up to three years in jail and a $250,000 fine.

In addition to criminal penalties, builders and remodelers may be subject to civil proceedings and judgments under the new law. OSHA standards in civil proceedings will be permitted to establish or define standard of care.

Kuchinsky speculates many construction companies are unaware of the new law and the higher fines it imposes. "We're going to see a shockwave [in the industry]," he says.

To ensure employees' safety, and to prevent citations, Kuchinsky recommends California construction employers contact Cal/OSHA's Consultation Service at (415) 703-5270. The service, which works independently of the citation department, offers a variety of resources to employers at no charge. Services are available upon request of the employer and may include on-site evaluation of safety and health hazards in the workplace, providing training for employees and managers, publications, loan of visual materials and other information related to occupational safety and health. Construction employers outside of California can visit www.osha.gov/oshdir/consult.html [1] for similar services in their area. For more information on OSHA visit the website, www.osha.gov [2].