b'Garys CornerupdateGary Auman, MRCA Legal CounselO SHA is an ever changing landscape. a supervisor visits the site daily, the other Several issues have come to lightcontractor sets a ladder which your employees recently which I hope to discuss inbegin to use to access the roof and their work this article. The most significant issue is thearea. OSHA arrives on the site for no specific finalization of the new OSHA standard forreason but witness your employees using an respirable crystalline silica. There is a separateimproperly set ladder. silica standard for the construction industry andIn the preceding situation you will have it is found at 29 CFR 1926.1153. I will discuss heto be able to convince OSHA or a Review obligations under this standard at the end of thisCommission judge that you were not aware that article.your employees were using a non-permitted Before we get there permit me to update youmeans of accessing their work area. To do this on a few other issues. you will have to be able to show that neither of The reasonable responsible employer; this is athe employees on the site could be considered standard applied by OSHA in general duty clausea member of management and that neither violations, but we are also seeing it in the use ofemployee had told anyone in management that the unpreventable employee misconduct defensethey were using the ladder to access their work as well as with regards to specific citations. Inarea. But, the real key will be for you to be able other words when you are stating that as theto demonstrate that you were at all times acting employer you were not aware of the violationas a reasonably responsible employer. This of a specific standard or that an employee wasmeans you will need to be able to convincingly exposed to a hazard that was causing or likely todemonstrate that you did have a safety person or cause death or serious physical harm, OSHA willa supervisor visit the jobsite on a daily basis to evaluate your conduct against a standard of whatmonitor safety compliance and that at the time of actions a reasonably responsible employer wouldthese visits they did not observe the employees have taken in a similar situation.using the ladder to access the roof.In other An example of the application of the testwords, what would a reasonably responsible could occur in a situation involving an allegationemployer do to ensure that its employees, that you violated a specific standard and youworking without direct supervision, were are claiming that you were not aware of thebe able to demonstrate violation. Frequently this will occur because you had an employee working alone or with anotherthat you were at all times employee on a jobsite on which the employeeacting as a reasonably has been observed accessing a roof with an improperly set ladder. When you assigned theresponsible employeremployee(s) to the job you instructed them to access the roof by using a stairway that led toworking safely. the roof in a penthouse. While it was severalThe question you have to ask yourself every hundred feet to the working area, it was theday is whether you are doing everything possible only way you saw to access the roof. You wereto ensure that your employees are following your concerned about ladder safety so you instructedsafety rules AND any instructions you issue your employees to use the stairs to access theto them governing how they do their job on a roof. Unknown to you, another contractordaily basis. You can see from the above example, began working on the roof a few days afterthe employer gave specific instructions to the your employees began their work. Even though 8 www.mrca.orgMidwest Roofer'