Fatal Fall Protection Violation Not Willful, Georgia Contractor Says

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By Lars-Eric Hedberg

A Georgia HVAC contractor whose employee died after falling through a skylight has asked a federal appeals court to review a ruling that it willfully violated a fall protection standard.

Petitioner Martin Mechanical Contractors, Inc., plans to contest the willful classification of the violation of 29 C.F.R. 1926.501(b)(4)(i), for failing to to protect employees from falls through holes, attorney Andrew N. Gross, counsel for the company, told Bloomberg BNA June 19.

Martin Mechanical filed the petition for review in the the U.S. Court of Appeals for the Eleventh Circuit. The appeals court hasn’t set a briefing schedule ( Martin Mech. Contractors, Inc. v. Sec’y of Labor , 11th Cir., No. 17-12643, 6/12/17 ).

A construction company hired Martin Mechanical to remove a heating, ventilation and air conditioning system and install a new one on the roof of a warehouse at a car dealership in Athens, Ga. Eight skylights covered in dirty plastic coating were on the low-sloped metal roof, which was 15 feet above the ground. The company sent a three-person team to complete the project, which brought the workers within two to five feet of the skylights, according to testimony.

On Nov. 30, 2015, an employee using an electric-powered saw on the roof lost his balance after the saw caught on the metal roofing material, according to a coworker. The employee fell through the skylight and later died at a hospital.

None of the three employees had been wearing fall protection.

Challenged Ruling

Administrative Law Judge Heather A. Joys of the Occupational Safety and Health Review Commission rejected the company’s arguments that the violation resulted from unpreventable employee misconduct and wasn’t willful. She assessed a $49,00 penalty.

She ruled that although the company had written fall protection rules that required guardrails, safety nets or personal fall arrest systems when working around holes, and distributed these rules to employees, it “did little to ensure employees understood those rules.”

The foreman at the worksite had received OSHA fall protection training 12 years prior to the accident and could not remember whether the training addressed skylights, according to his testimony.

He “was aware the installation work would place the crew on the roof of the building at a height of approximately 15 feet. He was aware the work placed the crew near the skylights and he knew of the hazard the skylights posed,” Joys wrote. “Yet he took no meaningful steps to ensure the crew was protected from falling either off the edge of the roof or through the skylights.”

Not Willful, Attorney Says

The ALJ incorrectly found that the violation was willful rather than serious, according to Gross.

“The foreman was confused and didn’t realize fall protection was necessary at the jobsite,” Gross said. “So can you really have a willful violation, which, above a serious violation, requires heightened awareness the violative conduct is illegal, and conscious disregard of OSHA regulations or plain indifference to safety?”

Joys had imputed the foreman’s knowledge of the hazard to the company and affirmed the willful classification.

If the foreman “honestly believed fall protection wasn’t needed, then as a matter of law this isn’t a willful citation,” Gross said.

The Department of Labor, Office of the Solicitor, Washington, represents the secretary.

Andrew N. Gross, LLC, Atlanta, represents Martin Mechanical.

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The petition for review filed in the U.S. Court of Appeals for the Eleventh Circuit in Martin Mechanical Contractors, Inc. v. Secretary of Labor is available at http://src.bna.com/pYD.

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