Once again, I am asked to "Muse" here at ALPS411 with some thoughts on construction law from my perspective. This time, I'm discussing jobsite safety, or more specifically, the need for a construction company to document its safety training and supervision efforts.
As 2013 dawns, it is always a good time to reflect and refocus on some of the keys to keeping a well run construction business going. One of these keys is assuring that your company stays out of the cross hairs of the good folks at OSHA and VOSH. Keeping up with the various federal regulations (my checklists on OSHA and the construction industry standards can help) and Virginia's unique standards is a must. These standards are tweaked occasionally so be sure to regularly review them.
However, as I was reminded by a quick reading of the new, and already informative Virginia OSHA Law News, authored by some good friends (whom you can follow @VaConstrLawyers), even the best prepared Virginia construction companies can end up getting a citation because of the fact that Murphy was an optimist. No matter how well prepared, trained and rule compliant management and the company in general are with all of these regulations, human beings are on these job sites and human beings (even the most conscientious ones) make mistakes. For that reason alone you must prepare to make a so called "employee misconduct" claim now.
My pal Brett Marston gives a great overview of the defense itself so I won't go into the details here. Suffice it to say that the company, as the employer, needs to have effective written documentation of the policies and actions of the employer (read you) in order to effectively pursue this type of defense. The key is to have a good safety training program, including manuals and documented training of employees and their on site supervisors. Like with any other area of law, the better the paperwork, the easier the defense.
While Noone likes to throw an employee under the bus, an employer needs to have the option of pleading "employee misconduct" when faced with a potential safety violation.
Thanks to Brett, Josh and Spencer for the reminder and, as always, let me know if you have any questions or comments.
Please check out my Construction Law Musings blog for more information on this and other construction law topics.
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