Electrical contractor held responsible for employee exposure to asbestos

Abstract

An electrical contractor in Rochester, New York was one of three contractors hired to renovate buildings on a college campus. Its job was to install lighting poles, interior lighting, and new fire alarm, security, telephone, and data systems in the buildings.

Although all of the contractors were informed that the buildings contained asbestos, one contractor in particular was responsible for removing the friable asbestos insulation before work could begin.

Question 1: Did the electrical contractor know about the potential for asbestos exposure?

The electrical contractor admitted that it was aware of the potential for asbestos exposure, but argued that it relied on the assurances of the asbestos experts that its employees were not being exposed to asbestos hazards. Therefore, the company concluded that it lacked knowledge of the cited conditions.

Conclusion

The Occupational Safety and Health Review Commission (OSHRC) disagreed. The record showed that one day after sampling established that the marking and special abatement procedure was unsuccessful in removing asbestos on the third floor, the electrical contractor began work on the second floor, which had undergone the same removal procedures.

In addition, the foreman testified that he became immediately concerned when he observed dusty conditions similar to what he observed two days earlier on the third floor.

Under these circumstances, OSHRC failed to see how the electrical contractor exercised the attention and care legally expected or required to protect its employees from asbestos exposure.

Question 2: Did the electrical contractor make an effort to prevent exposure to asbestos?

The electrical contractor argued that it did not create the conditions and that it took steps to protect employees from asbestos exposure by stopping work, informing the asbestos experts on the job, and following the "marking and special abatement procedure."

Conclusion

OSHRC disagreed. The multi-employer worksite standard requires "all employers of employees exposed to asbestos hazards to comply with applicable protective provisions to protect their employees," regardless of whether they create and control the source of contamination.

Although the electrical contractor made an effort to deal with the difficult asbestos removal, OSHRC was not convinced that these efforts released the company from its responsibility to comply with the standard.

Question 3: Could the foreman's actions be considered unpreventable employee misconduct?

The electrical contractor claimed that its foreman's actions were the result of unpreventable employee misconduct when he and another employee violated a company safety rule and entered the asbestos regulated area on the third floor of the building to remove exhaust fans.

Conclusion

OSHRC concluded that the electrical contractor's employees lacked sufficient training to understand the hazards associated with entering asbestos regulated areas during environmental testing. This evidence harmed the company's claim that its employees' actions were the result of unpreventable employee misconduct.

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