Every Nevada employer is responsible for making certain their employees are trained in safety procedures and covered by workers’ compensation insurance. Every business with even one employee is required to carry workers’ comp insurance and has a legal and moral responsibility to keep employees safe – even those employees they don’t realize they have.
Every industry has risks inherent in the jobs required by that industry. When it comes to construction, both commercial and residential, the risks inherent in the jobs are generally different from hazards faced on jobs in other industries.
Hazards on commercial construction jobs can include those caused by the use of heavy equipment like cranes and the metal studs used in framing commercial buildings. Developers aren’t generally responsible for the safety of construction personnel, unless they’re the prime or general contractor on the job, but the general contractor is responsible for all the people on the jobsite and for the workers brought in by subcontractors. The subs may have their own requirements that are more strict or jobsite specific, and have their own in-house rules, according to Benjamin Bojda, certified industrial hygienist, Dominion Environmental Consultants, Inc.
The oversight agency for jobsite safety is OSHA, the Occupational Health and Safety Administration, which operates both at federal and state levels.
“OSHA is the agency responsible for enforcing federal code that applies to conditions that are found at the worksite, whether it’s general industry or construction,” said Jess Lankford, chief administrative officer, Nevada OSHA. “The idea of standards is to ultimately prevent fatalities associated with their work, and to obligate the employers in recognizing hazards that may exist where they’re applying their staff to do their work, and addressing those hazards as they come to the forefront.”
OSHA allows states to create their own safety plans and Nevada is one of the states that has done so by submitting its plan to federal OSHA for approval. State plans can be more strict than federal, but not weaker.
Nevada’s plan is more strict, and covers state-specific requirements for plans concerning handling explosives, process safety for handling ammonium percolate used in explosives, record keeping and OSHA 10 and 30 training, which is a state-specific requirement.
“In general industry, there’s not really any requirement [for employees to take OSHA 10 training], except it is now required for anyone in the film industry or performing film production, like for casinos,” said Virginia Toalepai, CEO, Worldwide Safety.
There is a requirement that a business with more than 10 employees have a written safety plan and those with more than 25 on a specific jobsite have a safety committee established. Subcontractors need to have a designated employee attend those meetings.
The general contractor on a construction site who runs the project and hires the subcontractors is responsible for anything that happens on the site. They’re responsible for making certain everyone onsite is compliant with OSHA requirements, such as forming safety programs, ensuring employees wear the correct personal protective equipment for the type of work they’re to perform, and that there are established fire prevention programs and evacuation plans.
OSHA oversees Nevada’s commercial construction industry, but doesn’t issue certifications.
“There’s not specific certifications for general contractors, but there are training requirements,” said Bojda. “In Nevada, we are one of the few states that have stricter training requirements than the federal government. What that requires is that all workers have OSHA 10 training, and anyone who supervises workers needs to have OSHA 30.”
Those training programs run the number of hours indicated by their name, a two-day course for employees and a five-day course for supervisors. For specific hazards, such as working with asbestos or lead, or working with scaffolding or around crystalline silica, there is a requirement that there be a competent person onsite, someone who has been trained to work with those hazards, Bojda said. According to OSHA, a competent person is one who is capable of identifying existing and predictable hazards on a jobsite, and has authorization to take steps to correct them.
Not every construction site is required to have an overall safety person onsite. That said, usually the superintendent is an overall safety person and each subcontractor has a designated safety person, a foreman for general sites and a competent person in the case of specific hazards.
Safety in Commercial Construction
It’s necessary to define construction before determining the safety requirements for a specific project. A commercial project can be a new building being built, a renovation after a fire or catastrophic event where there’s no certificate of occupancy on the property anymore, or it can involve renovations to an existing property.
The designations matter because new construction with a general contractor running the work, is a multiple employer jobsite where everyone is exposed to everyone else’s work, so they all need to be in sync, said Lankford. “They need to know what the schedule of work is that’s going to be going on, what we’re going to be doing and what hazards exist at those times.”
Renovations on a house or commercial property after a catastrophic event means there’s no certificate of occupancy and no one living or working on the property. It’s a construction site again and requires OSHA 10 and 30 cards. When there’s a certificate of occupancy and people are living or working on the site, it’s less likely to be new construction and more likely to be maintenance work.
The Benefits of Jobsite Safety
Past the requirements of state and federal OSHA, and the moral responsibility of employers to keep a safe jobsite for employees, there are benefits and cost savings in having a safe worksite.
Though a general contractor should be making certain employees are following safety protocols, there’s no requirement to have someone on the jobsite watching everyone’s every move.
“Hypothetically, let’s look at roofers, sometimes we’ll go out and see roofing activity going on and the people [on the roof] are not tied off,” said Lankford. “They’re not using proper fall protection. One of the first things we’ll ask is who watches the location, do you have a team lead, there are four guys working on the roof, but the business is ultimately responsible for making certain they’re tied off all the time.”
But what does a business owner do? Go around and check every site, put a person on site to do nothing but monitor the workers? Smaller businesses often can’t afford that, so they rely heavily on their superintendents and team leads to make sure standards are followed, established company practices adhered to, and to witness if something changes and a unique condition develops.
However a contractor chooses to monitor, it’s important. This month, OSHA fines will increase. The highest violation for a typical business is the serious violation of standard, which starts at a $7,000 fine, adjusted for different parameters like size of business, how quickly they move to abate the issue, the number of people exposed, and the severity of the incident if something were to happen. Those factors are used to create one penalty which is called the gravity-based penalty.
When OSHA deals with the same business and serious violations that are substantially the same within a five year period, the fine for those violations can be two, five or 10 times the original amount.
“Then past [serious violations] you have willful violations which are rare, but they do come up, when the business has plain indifference to the standards or direct disregard,” said Lankford. “Those penalties are 10 times the normal amount, so willful penalties start at $70,000.” Penalty amounts will increase in October to adjust to the Consumer Price Index.
Nevada construction lost many of its experienced workers when the last recession severely affected both commercial and residential building, and the majority of those workers have not returned.
“When it comes to recruiting, especially in this type of environment now where there’s a big labor shortage and a lot of inexperienced workers, if you can keep the workers you have and then recruit new ones because of a safety program, that’s a huge benefit,” said Bojda.
With the labor shortage and inexperienced workers coming into the industry, there needs to be a focus on training and education. Mentor programs can pair new employees with journeymen who can explain why safety procedures and precautions are necessary. “Leading by example,” said Bojda.
OSHA fines can cost companies a lot of money for noncompliance with things like employees not having (or wearing) the right kind of personal protective equipment, or companies not having safety manuals onsite or not having protocols and procedures in place, said Toalepai.
Not every employer violating safety protocol even knows they’re doing so – or knows that they’re an employer.
“One weird situation arises when people pick up people out of a Home Depot parking lot,” said Lankford. “It’s something I don’t think they even realize.” The situation often unfolds, he said, when a Realtor picks up someone to do some work, maybe carpentry on a house they want to show. But in doing so the worker is exposed to hazards like electrical, and the Realtor, without realizing it, is functioning as the general contractor, directing the work, but they don’t have a contractors’ license. In many cases they’re paying the person under the table.
The concern isn’t really about whether those workers are being taxed, said Lankford. “What we’re concerned about is the laborer and whether or not they’re being protected and if you’re paying them under the table, you’re still paying them. So now they’re an employee. If they’re an employee and you have that relationship with them, it’s your responsibility to make sure they’re following the standards.” It can come as a shock to people to suddenly discover they’re a general contractor with employees.
Every employer in Nevada is required to cover their employees with workers’ comp insurance.
“In Nevada, there’s two ways to have workers’ comp. You can be a self-insured employer or you can buy workers’ compensation insurance,” said Chuck Verre, chief administrative officer with the Division of Industrial Relation’s Workers Compensation Section. “To be a self-insured employer, you make an application with the Division of Insurance. They review your financials and ensure you have enough wherewithal to deal with claims as they occur and then you get an approval to do that.”
In Nevada, it’s generally the largest employers who opt to be self-insured, like many of the big casinos which manage and pay their own claims with oversight by the Division of Insurance. The second option is to buy insurance coverage.
For employers, the benefits of being self-insured includes feeing they have more oversight over the ongoing program.
“They can implement what’s called modified duty programs to keep folks that are injured on the job,” said Verre. That facilitates a return to work, and keeps injured workers from becoming disenchanted with their situation based on how badly they’re injured or if they’re having pain issues. It also keeps the relationship going between the employer and the employee. It’s a way for employers to oversee their own program and ultimately I think benefits the employee.”
Workers’ comp is a no-fault system – even if the employee’s negligence caused the injury, they’re covered by the insurance. It works on the employer’s behalf, too. Workers’ comp benefits are a sole remedy – if the injured worker accepts the benefits, they can no longer sue the employer.
“The majority of workers who get hurt on the job just want to get back to work,” said Verre. “They’re not there to manipulate or to make money or stay home and do nothing. It’s a good system. It’s put there to help make people whole again.”
Though the best option is to avoid injury in the first place, which is the reason safety requirements are put in place.
“The ultimate goal we should always remember is to make sure safety is a priority,” said Toalepai. “Because that’s what it’s going to take to go home to our families.”
