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Monthly Archives

July 2015

Workplace Deaths Created by Poor Safety Practices

By Your Employee Matters | No Comments
You would think that by 2015 employers would have realized that unsafe working conditions are dangerous, in violation of the law, can kill people and leave the family left behind in poverty. But that’s not the case. Plenty of workers still get killed on the job…and for no good reason. If you have any doubts here are just some of the workplace fatalities that occurred  in June of 2015
  • Open-flame heater likely cause of Coalgate oil rig fire; 3 deaths and serious injuries to 2 others
  • 62-year-old worker dies after manufacturer ignores safety hazards
  • 7,600-pound conveyor crushes worker after weld failure – a preventable death, says OSHA
  • 7-ton buoy hits, kills 2 workers and injures 2 others at Pearl Harbor naval facility
Not only are employers subject to OSHA fines and work comp claims, the employee and/or their family may sue directly if there is an exception to the work comp exclusivity rule. In most states  a worker may sue directly where there was concealment of a safety hazard, removal of a safety guard or other intentional malfeasance. Florida’s statute is an example. Pursuant to section 440.011(1)(b), Florida Statutes, in order for an employee to successfully prove an intentional tort as an exception to the exclusive remedy of workers’ compensation, the employee must prove, with clear and convincing evidence, the below-required elements of an intentional tort:
  1. The employer deliberately intended to injury the employee, or,
  2. The employer,
  • Engaged in conduct that it knew, based upon explicit warnings specifically identifying a known danger, was virtually certain to result in death or injury to the employee and,
  • The employee was not aware of the risk because the danger was not apparent and,
  • The employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising an informed judgment and
  • The conduct was a legal cause of the employees’ injury or death.
Other statutes are not as protective of employers. As a trend, where legislation reduces benefits, the courts have chipped away at the exclusivity rule, ruling there has been a change in the “bargain” that comes with exclusivity.

Bottom line: regardless of what the precise law is in your state, a safe workplace culture protects workers, the company brand and the bottom line. There is no substitute for taking the proper steps to create a safe workplace including the training of managers, supervisors, foreman, workers.


So you’ve reported an accident to OSHA: what happens next, and how do you respond?

By Your Employee Matters | No Comments

OSHA’s “Interim Enforcement Procedures” Prioritize Its Responses to Reported Accidents, Calling for Inspections in Some Cases and Submission of the Employer’s Own Accident Investigation Report in Others

To guide the Occupational Safety and Health Administration in responding to the new requirement to report all in-patient hospitalizations, amputations, and loss of an eye within 24 hours of these events, OSHA has issued its “Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39.” These Procedures were sent out to the OSHA Regional Administrators and State Designees in anticipation of a large increase in the number of reported accidents in 2015. The Procedures include criteria for “triaging” employers’ reports to determine which reports to respond to with an on-site inspection and which to address through the Agency’s new “Rapid Response Investigation” process. The RRI process requires the reporting employer to conduct and submit the results of its own accident investigation to OSHA. According to OSHA, the Procedures are only an “interim” enforcement plan that the Agency will evaluate and adjust based on its experience this year under the new accident reporting rule, 29 CFR §1904.39.

OSHA Triage of Accident Reports

To determine whether to conduct an on-site inspection or an RRI, the Interim Enforcement Procedures instruct the OSHA Area Offices to sort the employers’ accident reports into one of three categories. Category 1 is for reports that require an on-site OSHA inspection. For Category 2 reports, the Procedures authorize and encourage the OSHA Area Office to conduct an inspection, but the Area Director is allowed to exercise discretion and decide not to conduct an on-site inspection. An on-site inspection is not warranted for Category 3 reports, but the Area Director will require the employer to submit an accident investigation report explaining how the accident occurred and how such incidents can be prevented in the future.

The criteria for the three Categories are as follows:

Category 1

These reported accidents will result in an on-site inspection:

(a) All fatalities and reports of 2 or more in-patient hospitalizations
(b) Any injury involving a worker under 18
(c) Known history of multiple injuries (same or similar events in previous 12 months)
(d) Repeat offenders (history of egregious, willful, failure-to-abate, or repeated citations)
(e) The employer has been placed in OSHA’s Severe Violator Enforcement Program (SVEP), or an OSHA National or Local Emphasis Program (NEP/LEP) applies
(f) Any imminent danger.

Category 2

For these reported accidents, an inspection may be conducted if a number of the questions below can be answered “yes.” This list is not exhaustive, however, and there may be other criteria particular to the incident that could be considered by the OSHA Area Director.

(a) Are employees still being exposed to the conditions underlying the hazards that resulted in the injury or illness?
(b) Was the incident the result of a safety program failure such as Permit-RequiredConfined Spaces (PRCS), Lockout/Tagout (LOTO), Process Safety Management (PSM), etc.?
(c) Was the employee exposed to a serious hazard (i.e., explosive materials, combustible dust, falls or heat)?
(d) Were temporary workers injured or made ill?
(e) Has another government agency (federal, state, or local) made a referral?
(f) Does the employer have prior OSHA inspection history?
(g) Is there a Whistleblower complaint/inspection pending?
(h) Is the employer a Cooperative Program Participant, e.g., VPP, OSHA Strategic partnerships, SHARP or an active Alliance member?
(i) Did the incident involve health issues such as chemical exposures, heat stress, etc.?

Category 3

An on-site inspection will not ordinarily occur if the answers to all of the above Category 2 questions are “no.” As will be discussed in more detail below, the OSHA Area Office will require submission of an accident investigation report in Category 3 cases.

To help make sure that OSHA obtains enough information to triage the incident into the appropriate Category, the Interim Enforcement Procedures include a detailed questionnaire of nearly 30 questions that the OSHA official taking the employer’s report is to go over with the employer during the initial telephone call. See attached Appendix 1 from the Procedures. These questions go into much greater depth about the injured employee, the workplace, and the incident (including whether there have been similar accidents or near misses) than the eight items of information that the OSHA regulation itself requires to be reported. See 29 C.F.R. §1904.39(b)(2).

On-Site OSHA Inspections

If OSHA determines that an on-site inspection of the reporting employer is warranted, the Interim Enforcement Procedures state that the inspection “will be initiated as soon as resources permit and will normally be initiated within five working days” of the employer’s report of the incident. Though not addressed in the Procedures, the scope of the inspection should be limited to the circumstances of the accident that was reported. But even if the inspection starts out being limited to the scope of the reported accident, it can be broadened if the OSHA Compliance Officer sees or hears about any other hazardous or non-compliant condition during the course of the inspection.

Rapid Response OSHA Investigations

If the OSHA Area Director decides not to conduct an on-site inspection, OSHA may initiate a Rapid Response Investigation based on the Area Director’s belief that there is a “reasonable basis that a violation or hazard exists.” The Interim Enforcement Procedures explain that for incidents that have been designated for an RRI, a representative from the OSHA Area Office will call the employer contact identified by the employer when the accident was called in to OSHA. According to a “script” that the Interim Enforcement Procedures provide for the Area Office call, the employer is to be told to “find out what led to the incident and what safety modifications can you make now to prevent future injuries to other workers.” Employers are also to be directed to investigate the “root causes” of the incident.

The OSHA Area Office call is then to be followed up with a faxed letter that asks the employer to “immediately conduct your own investigation into the reported incident and make any necessary changes to avoid further incidents.” The OSHA letter directs the employer to document both its investigation findings and the corrective actions taken in response, and to submit that information to OSHA, either on the employer’s own incident investigation form or on the “Non-Mandatory Incident Investigation” form that OSHA attaches to its letter. Significantly, and as discussed further below, both OSHA’s letter and its attached incident investigation form ask for the employer to investigate and identify the root cause(s) of the accident, which OSHA describes as “both the immediate and the underlying causes of the incident.” OSHA’s form even includes space for witnesses to be identified and for their description of the incident to be documented. In addition, employers must send OSHA documentation showing that the condition that led to the injury has been abated.

According to the Interim Enforcement Procedures, OSHA’s telephone call to the employer should take place within one day of OSHA’s receipt of the employer’s initial accident report, and OSHA’s letter should then require the employer to submit the written results of its investigation of the reported incident within the next five days. OSHA recognizes, however, that the employer may ask for an extension of that time period for “complicated events.” Once the employer has submitted its incident investigation report to OSHA, the Agency will evaluate the report to determine whether to conduct an inspection in order to perform its own investigation and root cause analysis of the incident, to verify that the employer has abated the root cause(s) identified in its report by taking the actions indicated, or simply to investigate further.

Employer Response

In responding to an OSHA RRI, it is important for employers to understand that the accident report submitted to OSHA can be used against them if OSHA subsequently decides to inspect and issue a citation related to the incident. Specifically, the root cause(s) identified in an employer’s report can amount to an admission of a violation, such as failure to conduct required training or repair a faulty safety device, and in some cases could even support characterization of the violation as “willful.” This seems to be exactly the kind of information that OSHA is asking for in the root cause section of the “Non-Mandatory Incident Investigation” form attached to the letter it sends to employers. That form asks the employer to state not only what the root causes were, but to include “why” those causal conditions were present. The root cause section of OSHA’s form gives the following examples and guidance on what should be written:

If safety procedures were not being followed, why were they not being followed? If a machine was faulty or a safety device failed, why did it fail? It is common to find factors that contributed to the incident in several of these areas: equipment/machinery, tools, procedures and policies, training or lack of training, work environment. If you identify these factors, try to determine why these factors were not addressed before the incident.

Root-cause analysis is by definition designed to uncover management’s shortcomings or deficiencies and, if shared with OSHA, provides a blueprint for citations. Obviously, if an employer provides OSHA with an admission that it was not compliant with an OSHA requirement, or worse, knew before the accident that it was not in compliance, the employer has walked itself into a Serious or even Willful citation. And, maybe of even greater concern is that these responses to OSHA are discoverable by plaintiffs’ attorneys seeking to circumvent the workers’ compensation exclusive remedy bar and sue the employer for an employee’s injury. Once the report is provided, it would be extremely difficult for the employer later to contradict its own statement and successfully contest an OSHA citation for the alleged violation.

For this reason, we advise that employers simply respond to OSHA in a letter that addresses the company’s investigation, conclusions, and the corrective action(s) taken. These letters should be very carefully crafted to avoid admissions to the extent possible. We recommend that, in all but the simplest cases, employers carefully review their response letters with upper management and legal counsel prior to submitting them to OSHA, even if an extension of the due date has to be obtained to allow time for such review. In cases of a particularly severe injury, consideration should also be given to retaining an attorney to conduct the accident investigation under the attorney-client privilege or work product doctrine. And finally, in all cases, it would be wise to prepare for the possibility that OSHA will conduct an on-site inspection in response to the employer’s letter.

By David Smith and William K. Principe Atlanta Office of Constangy, Brooks, Smith & Prophete, LLP

Requiring Paid Leave Use Before FMLA Leave

By Your Employee Matters | No Comments
Question: When an employee takes FMLA leave, may we require that the employee exhaust all available sick and vacation leave? The intent is to avoid additional vacation requests following a leave or a resignation and therefore cash out of any vacation accrual.

Answer: Federal Family and Medical Leave Act (FMLA) regulations pertaining to the substitution of paid leave are found at 29 C.F.R. § 825.207. The relevant portions are set forth below.
  • a. Generally, FMLA leave is unpaid leave. However, under the circumstances described in this section, FMLA permits an eligible employee to choose to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. The term substitute means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer’s applicable paid leave policy during the period of otherwise unpaid FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. See §825.300(c). If an employee does not comply with the additional requirements in an employer’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave. Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies.
  • b. If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer’s plan.
  • c. If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave will not count against the employee’s FMLA leave entitlement. For example, paid sick leave used for a medical condition which is not a serious health condition or serious injury or illness does not count against the employee’s FMLA leave entitlement.
  • d. Leave taken pursuant to a disability leave plan would be considered FMLA leave for a serious health condition and counted in the leave entitlement permitted under FMLA if it meets the criteria set forth in §825.112 through 825.115. In such cases, the employer may designate the leave as FMLA leave and count the leave against the employee’s FMLA leave entitlement. Because leave pursuant to a disability benefit plan is not unpaid, the provision for substitution of the employee’s accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan only provides replacement income for two-thirds of an employee’s salary.
When examining an employee’s need for leave under the FMLA, employers should also do a simultaneous assessment of the employer’s obligations, if any, under the Americans with Disabilities Act (ADA).

For additional information, see the Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.


Editors Column – U.S. Supreme Court Decides Abercrombie Religious Discrimination Case

By Your Employee Matters | No Comments
On June 1, 2015 the U.S. Supreme Court ruled in the EEOC v. Abercrombie that case that the Equal Employment Opportunity Commission was not required to prove that a Muslim applicant for employment had requested that Abercrombie & Fitch accommodate her wearing of a headscarf in order to prove that she was denied employment based on religion in violation of Title VII.  Evidence that the Company failed to hire her because it assumed (correctly) she would request such an accommodation was sufficient to prove that her religion was a motive for the decision.

Fact of the Case:  An applicant for employment, a practicing Muslim, interviewed for a sales position with Abercrombie & Fitch wearing a headscarf.  Abercrombie & Fitch at the time had a “Look” policy that dictated that sales employees wear clothing that projected the Company’s image.  Among the prohibited items of clothing were “caps.”  There was no discussion between the interviewer and the applicant about whether she required an accommodation for her religion in the form of being permitted to wear her headscarf.

The interviewer rated the applicant as “qualified to be hired” but after the interview, consulted with her District Manager to determine whether the headscarf would violate the Look policy.  The interviewer believed the headscarf was worn as an expression of the applicant’s religion. The District Manager said it would, and the applicant was not offered a job.  The EEOC brought suit on the applicant’s behalf, claiming that the denial of employment was intentional religious discrimination, and a jury found in her favor.  A federal appellate court, however, overturned the verdict, ruling that unless there was proof that the employer had actual knowledge of a need for a religious accommodation, a Title VII violation could not be proven.  Given that there was no discussion of the applicant’s religion or an accommodation, she could not prove actual knowledge.

The Court’s Ruling:  The Supreme Court reversed. The Court majority held that if an employer refuses to hire an individual based on its belief that she will require a religious accommodation, and she actually would need one if hired, Title VII is violated.  Proof of actual knowledge is not required.  The Court reasoned that, unlike some anti-discrimination statutes, Title VII’s “intentional discrimination provision prohibits certain motives regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts.”  The Court continued, “Thus, the rule for disparate treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”  The Court also rejected the Company’s argument that a “neutral policy” that treats all applicants the same cannot constitute “intentional discrimination.”  Noting that this might be true for other forms of discrimination, the Court observed that Title VII imposes affirmative obligations on employers to provide special accommodations to policies for religious reasons.

Writing separately, Justice Alito took up the question that the Court majority said would not be decided because it had not been briefed: whether it is a condition of liability that the employer know or suspect that the practice it refuses to accommodate is a religious practice.  The Court majority had acknowledged it to be “arguable” that motive could not be established unless the employer at least suspected that the practice in question was religious.  Justice Alito, however, would hold this to be the case: “an employer cannot be liable for taking an adverse action because of an employee’s religious practices unless the employer knows that the employee engages in the practice for religious reasons.”

Lessons Learned:  The Court rejected the principle a generally applicable, neutral policy can never form the basis of a claim of intentional religious discrimination.  Thus, employers that make employment decisions motivated by the belief that an individual’s religion will conflict with a company policy may be liable for intentional discrimination under Title VII, although the employer should still be able to avoid liability if it can establish that accommodating the individual’s religious practice would be an undue hardship.  Yet, by leaving unanswered the question of whether an employer must know or at least suspect that a practice is religious to establish motive, the majority has created the potential for “mischief.”  As Justice Alito pointed out, if knowledge is irrelevant then Abercrombie & Fitch would be liable to the applicant by refusing to hire her due to her headscarf even if it had absolutely no suspicion that she wore it for a religious purpose.  

Does this mean that if a company does not hire an individual who says he cannot work Saturdays as required by company policy, the company is liable if the unstated reason for this refusal is the employee’s religious imperative to keep the Sabbath (the motive being a criteria that is based on religion)?  We do not think this outcome is supported by the Court’s decision, but we expect this to become an issue of dispute, and one the Supreme Court may be called upon to decide in the future.

By Don Phin, Esq


Three Basic Steps in Disaster Planning

By Business Protection Bulletin | No Comments
Think about disaster planning as a nomadic tribe might. How do you pack only the essentials and relocate with little or no notice? How do you reestablish your business with next day efficiency?

The modern business world consists of three essential elements: virtual assets, current hard assets, and supply chain/delivery assets.

The virtual world of documents, financial accounts, and data drive the profit and loss, the income statement.

Everyone has been told to back up these data and keep a copy off premises. Try this approach:
1. Decide which data are truly mission critical: supply chain status, current orders, financial statements, bank accounts, payables, receivables, employee data, and customer data.
2. Copy these data updated monthly. One copy goes into the safety deposit box at the bank. One to a trusted officer.
3. Copy daily transactions for the month to the officer’s memory stick. Update two sets at month’s end.
These data will allow you to reroute supplies to temporary quarters, warn expected deliveries of delays, and keep up with daily transactions.

Assess current hard assets. Do you need brick and mortar location(s)? Keep a list of alternative available locations in that bank box.

Do you need large machinery difficult or expensive to move and set up? If so, temporary changes in locations may be out of the question. But, an agreement to share capacity with a friendly competitor might solve the problem either one of you might face.

Perhaps you’re in a position that replacing hard assets would not be prudent. Re-engineering your process and modernizing makes sense. In this case, insure accordingly for business interruption; but be prepared to fund some of the downtime through corporate savings.

Hard asset loss needs to be prevented, contingency planned, or insured to protect company assets and reputation. Look at your key production assets and have a game plan in place.

Supply chain and deliveries data is critical in disaster planning to keep the process moving. You do not want your customers moving on to their plan B while you’re recovering.

Can you store inventory in a second location? Perhaps you have customers in other states. Is permanent storage available to make a remote supply economical?

Delay supply acceptance if needed, but try not to miss deliveries. That disaster agreement with the friendly competitor might come in handy here.

Consider the mission critical aspects of your business. Think of the financial data, the hard assets, and the flow of goods when contingency planning.


Fine Arts: protect everything from prototypes to Picassos

By Business Protection Bulletin | No Comments
Sandy brought destruction to the northeast in uncountable and, before the storm, unimaginable ways.

Especially hard hit in value were collectors of fine arts and antiques. Even businesses lost precious antiquities and paintings. Many of these businesses thought fine art floaters were for attaching to homeowners only. Not so. The estimate of uncovered loss in Sandy equaled the covered losses, about half of a billion dollars.

Whether you display Civil War memorabilia, Louis XIII chairs or a stamp collection as points of interest and conversation starters, these dear assets need special consideration for their greater than intrinsic value.

Honus Wagner’s hat is not just a baseball cap. Straight property policies view it that way. The fine arts form is required.

Inventory your fine arts: paintings, collections, memorabilia, statues, silver, gold, crystal, sculpture, anything with an art value. Either find receipts for purchase or obtain current appraisals.

Even the historical pieces or company museum should be valued. Do you have an original prototype of a famous invention? How about the original of your companies first stock certificate? Any well known awards or trophies?

Think one-of-a kind, think unique value, think collectible. Now think how you replace this value.

Fine arts coverage is about uniqueness. Some policies agree to an amount of loss up front. Although you will never find that second Mona Lisa, the value can be estimated and paid to you on loss.

If you use the lobby as a museum, certainly you will want to purchase substitute pieces in the event of a loss. Main Street property policies view intrinsic value in either replacement or actual cash value.

That Louis XIII chair is fully depreciated under actual cash value and its replacement cost might be a few hundred dollars.

Other property categories limit loss to a few hundred or thousand dollars.

Learn from the crowd in New York City who never believed that loss could occur. Take time to inventory and value your treasures.


Additional Insured Endorsement: read carefully

By Business Protection Bulletin | No Comments
Additional Insured (AI) endorsements either grant liability coverage to a contract partner for a specific project or they cover vicarious liability claims arising out of the AI’s workmanship or products. Neither. Or both, depends how it’s written.

AI might be the most widely misunderstood endorsement in general liability. First, the court interpretations are recent by insurance standards. Second, the courts in different states interpret the wording differently. Third, since the comprehensive policy changed into the commercial policy form, the change in wording is being interpreted as meaningful. Fourth, by the time a liability claim gets to court, the policy wording may have been interpreted several times.

ISO current wording:

Who Is an Insured (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of your ongoing operations performed for that insured.

Some of the controversy comes from word choice in the endorsement:

1. Arising out of operations for that insured (holder of the AI)
2. Ongoing operations’ yours on behalf of the AI
3. work yours on behalf of the AI (old form)
4. Various manuscript endorsements

Liability arising out of does not limit claims to negligence based acts or omissions. A very broad interpretation by the courts implies any connection between your operations and a loss gains coverage for the AI.

Work implies completed operations coverage while ongoing operations imply process only. The courts no longer make this distinction and interpret work as working, not completed work. The terms are synonymous on ISO forms, manuscript forms may be different.

The ISO form is being interpreted broadly as any process connection between your operations and damages may allow coverage under the AI.

Since the process usually involves your expertise combined with the general contractor, both parties may be held liable for the same act, even though clear negligence is only attached to one party.

Keep this broad interpretation in mind when considering AI status. Read your endorsement carefully, you may be accepting more risk than intended.


The Pollution Exclusion and Misapplied Chemicals

By Business Protection Bulletin | No Comments
An interesting claim case occurred at a day care center. An employee misapplied ammonia when cleaning a toilet seat causing rashes on several children.

The company reserved their rights on the claim based on the environmental exclusion in the general liability policy.

A reservation of rights essentially lets the insured know that the company will investigate the claim, but feels the company may not be responsible for payments due to an exclusion or coverage issue.

Although the reservation of rights is a stretch in this case, the action indicates the insurance industry desire to limit environmental coverage by exclusion and activism.

The ammonia was not released by accident, it was simply misapplied to the surface being cleaned. Other chemicals would have been a much better choice.

Suppose the ammonia application was followed by a second employee applying bleach to the same area. The chemical reaction can be very toxic. Would this action create an excluded event?

Under the coverage, the exclusion defines an event as sudden and accidental. The combination of the chemicals certainly is sudden and accidental even when both people purposely applied the chemical. The insurance carrier might apply the exclusion to this event successfully.

Certainly if both bottles spilled in a store room, the exclusion would apply.

The important consideration for business owners is that the insurance industry is frightened of environmental claims and is doing what it can to exclude them from liability policies. As astute risk managers, business managers must rethink strategies to eliminate environmental risk and transfer what’s left.

Train employees on chemical and cleaning supply usage. Restrict usage to knowledgeable employees. Store chemicals appropriately to avoid leaks and spills. Do not store incompatible chemicals in the same area. Check the MSDS for pertinent information.

Look into environmental liability coverage as a separate line of coverage. Even the most benign chemicals can become problematic in the long-run. Why is the insurance industry afraid of environmental claims? Think asbestos. Think about underground storage tanks.


Build Passive Redundant Systems: site design loss prevention devices

By Construction Insurance Bulletin | No Comments
Redundant systems involve anticipating future issues with your building. Do you have mission critical electricity needs, for instance, a hospital? Design a generator into the site.

What issues are raised with generators? Now you must consider a fuel source. An underground storage tank creates compliance issues. More importantly, it creates real problems when they leak. Secondary containment is one answer and should be implemented. (A second physical barrier around the tank which can hold the tanks’ volume should it leak.)

Consider installing a radon-type venting system below the slab too. Vapor intrusion is the next step in environmental compliance evolution. The back-up system can be installed for dollars during construction instead of thousands later. And suppose you do spill some fuel after the slab is poured? Wouldn’t that be a convenient time for a passive redundant system ready for use?

Rethink each system to anticipate realistic future problems. What part of the solution is practical, yet very cost effective, to install now?

Now, use this skill on the site itself. Silt fencing can be installed with the safety fencing, same posts and trench. Safety fencing around trees can be used for traffic control and defining lay-down space. Traffic control and storage logistics should be managed before the site opens for construction. Use fencing to define flow as well as its primary protection job.

Stormwater detention systems store a valuable commodity, water. Non-potable water has many uses on a job site. Use this source to water freshly installed plants, trees protected on site, dust control, or power washing mud off tires. There are ten thousand other uses, and ultimately, you need to drain those structures. Install a pump with a filter and leave it in the pond.

Rethink the many uses your temporary structures and features can help perform. Don’t waste any of them. The design phase tends to be task oriented. Look big picture and synergize your assets.


Utility Marking: who’s responsible for errors?

By Construction Insurance Bulletin | No Comments
You’ve marked the area in white paint where the new guardrail is to be installed. You’ve called your state utility marking service and wait the required time before sending a crew out to begin work. The supervisor mentions a fiber optic cable marker on site and wonders why the tickets have come back clear. Obviously, you can’t proceed until you’ve double checked these data.

Who would be responsible for cutting a fiber optic cable in this scenario? Even if you didn’t know, the test is often “should you have known?”

This test requires your site supervisors to check site plats for any utility easements, any visible marking signs within several hundred feet of your site, and interview the marking crew to request specific concerns.

Double check any laterals for water and sewer, is electrical service buried or overhead? How about private utilities – any lighting or signage on site still work?

The site supervisor needs to stake out any areas where extra caution is needed. Great due diligence saves time and money in the long run.

Fencing contractors run into the problem of unmarked or improperly marked utilities constantly. They bore holes to utility depth exactly where utilities turn into the site. They must bore holes every eight feet. The most professional fence installers hit phone and power lines. The key is to document your due diligence.

Take pictures of all utility markings before you dig. If you have any question whether the site has been mismarked or a specific utility has not been marked, take pictures of the markings currently on site, then call for the remark to document the difference.

The key is to have a high level of certainty that you know where the utilities are and they are properly marked. Next, document the efforts made to assure these conditions. Then dig, bore or plunge with confidence, and the knowledge you have done your best to avoid utility interruptions.