Are Union Workers Safer?

A colleague recently shared an article with me about the differences in accident and incident re- porting in unionized roofing construction compared with non-union firms. The study, “Protecting Construction Worker Health and Safety in Ontario, Canada”, which was conducted by the Institute for Work & Health (IWH), a non-profit research organization headquartered in Toronto, suggests unionized construction firms experience fewer serious and costly injuries than non-union firms. The IWH study states construction firms that employ union workers have fewer work injuries that require workers’ compensation payments for time away from work.

Although the IWH study was conducted in Canada, it has direct implications for the roofing industry in the U.S. According to Injury Facts, a publication of the Itasca, Ill.-based U.S. National Safety Council, 74,500 construction workers suffered “lost-time” injuries in 2014. Lost-time injuries are on-the-job injuries serious enough that they keep workers from doing their jobs and require costly workers’ compensation reimbursements.

The IWH study’s findings indicate unions, as well as unionized construction firms, may encourage occupational injury reporting and reduce risks through training, hazard identification and control.

To unionize or not to unionize? That is the question that has gone on since unions first began to organize. I myself am a union journeyman, but I see the positive and negative aspects to both sides. In the construction trades, unions are hiring halls for skilled workers. Workers will either shape up or wait to be called for work on a daily basis. These workers will be at one site for a while, get laid off, then simply move on to another site. Union tradesmen have no vested interest in a company, whereas company employees’ livelihoods depend on the company doing well.

Whether union or non-union, I believe the discrepancy lies in company culture. Employees of non-union roofing firms may not report minor injuries or work-related illnesses because they may be afraid of being fired or that reporting would have a negative impact on the company. In addition, the owner and management of a company may not be aware of the implications of not reporting—or underreporting. And there’s always the possibility that this male-dominated culture may frown on reporting as being weak.

Unfortunately, there are roofers who believe they cannot compete if they follow OSHA and other governmental standards. More often, some roofers hire day-laborers and give them no training and no workers’ compensation benefits. I have heard stories of some of these workers being injured and dumped out of the back of a pickup truck at a local emergency room like garbage.

On the other hand, I have worked with non-union firms that place a high value on safety. The owners of these companies demand even the smallest incidents be reported. Perhaps this is so they can track trends in the workplace: If there are many employees being injured in the same way, the company can take steps to fix the issue.

Also, minor injuries, if not treated immediately, can become major hospitalizations. Imagine a worker steps on a nail, then keeps working. The wound becomes infected and septicemia develops. The worker ends up in the hospital. In keeping with the new OSHA reporting standard, OSHA must be called within 24 hours of the injury. This may spark an OSHA inspection of the company’s site.

Another example: An employee twists his lower back on the job, then proceeds to “work through it.” He goes to bed that night and in the morning the pain is so severe he can’t get out of bed. Now we’re dealing with a lost-time incident that must be documented on the 300 Log. Beyond that, how does the employer know it truly happened on the job and not outside?

Union roofing firms tend to be larger in scope. They tend to do mostly higher-dollar-value jobs. For this reason, union roofing firms tend to keep better records, which is important in the case of OSHA inspections or legal disputes over a workplace injury. Documentation—or lack thereof—will show whether an employee took all reasonable precautions to carry out his or her work safely, as well as prove whether all safe operating procedures were followed. Importantly, documentation can lower the liability that arises for failure to take reasonable care on the job site.

Documentation is also required in several OSHA standards. Under the OSHA Recordkeeping regulation (29 CFR 1904), covered employees are required to prepare and maintain records of serious occupational injuries and illnesses, using the OSHA 300 Log. This information is important for employers; insurance providers; workers; and OSHA in evaluating the safety of a workplace, understanding industry hazards, and implementing worker protections to reduce and eliminate hazards.

Employers who cannot or will not see the value of providing a safe and healthful workplace and who believe they should not have to follow governmental regulations end up being a burden on society—because when their workers get killed or seriously injured, it is a burden on everyone. Unions can’t completely stop these problems, but they can help to alleviate them through member training.

Contractual Risk Shifting, Workers’ Compensation and You

During the process of negotiating construction contracts, contractors often use certain clauses to shift the risk of loss onto subcontractors who may have less bargaining power. How do they do this? Most commonly through the use of indemnity and waiver of subrogation clauses. While these clauses apply in a variety of situations, they are particularly concerning with regard to workers’ compensation insurance.

All states have mandatory workers’ compensation statutes. These statutes make employers strictly liable for employee injuries on the job. Strict liability means liability without fault. Therefore, an injured employee of a subcontractor can recover damages from the subcontractor’s workers’ compensation carrier even if a third party is 100 percent at fault for the injury.

What Is Subrogation?

Subrogation arises when an innocent party incurs damages attributable to the fault of another. This most commonly applies when an insurance carrier pays an insured loss and subrogates to the rights—or “stands in the shoes”—of the injured party in recovering against the responsible party. This doctrine is based on equitable principles, primarily to prevent the at-fault party from escaping liability. Makes sense, right? Then how does a subcontractor waive subrogation?

Here’s a sample waiver of subrogation provision:
Subcontractor hereby waives all right of recovery against the Contractor, the Owner and their respective officers, directors, employees, agents and representatives with respect to claims covered by insurance obtained pursuant to insurance requirements under this Subcontract. The Subcontractor agrees to cause its Workers’ Compensation, General Liability and Automobile Insurance carrier to waive their rights of subrogation against the Contractor, Owner and their respective officers, directors, employees, agents and representatives.

Here’s an example:
A subcontractor’s employee is injured by the sole negligence of the contractor. The subcontractor’s workers’ compensation carrier pays out statutory damages to the injured employee. Pursuant to the waiver of subrogation clause, the subcontractor and its carrier have no right to recover the losses from the contractor.

What is the practical effect? The subcontractor suffers the consequences of the contractor’s sole negligence. How? The subcontractor’s experience modification rate (EMR) goes up. What else goes up with the EMR? Premiums!

What Is Indemnification?

Indemnification requires one party to pay damages to another, sometimes without regard to who was actually at fault. These types of clauses often include language requiring the subcontractor to “defend and hold harmless” the contractor, which puts the additional burden on the subcontractor of incurring fees and expenses for the contractor’s legal defense. There are generally three types of indemnity clauses: broad, intermediate and limited.

A broad indemnity clause requires the subcontractor to pay loss or damage regardless of who is at fault, even if the damage is caused by the sole negligence of the contractor. This is the most onerous type of indemnity clause because it shifts the entire risk to the subcontractor.

Here’s a sample broad indemnity provision:
Subcontractor shall indemnify, defend and hold harmless the Contractor, Architect and Owner against all liability claims, judgment or demands for damages and expenses, including, but not limited to, reasonable attorneys’ fees, arising from accidents to persons or property arising out of or resulting from the performance of the work.

An intermediate indemnity clause requires the subcontractor to pay loss or damage for its own sole or partial negligence. Some intermediate indemnity provisions require the subcontractor to pay the entire loss or damage while others only require the subcontractor to pay its pro rata share of the loss or damage.

Finally, a limited indemnity clause only requires the subcontractor to pay loss or damage that is the sole responsibility of the subcontractor.

How do indemnity and subrogation interplay? When the subcontract has abroad indemnity clause and a waiver of subrogation clause.

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Ladder Clamp Allows for Safer Access

The SLATOR tool fastens to a steep slate or asphalt shingle roof and firmly clamps a ladder into position.

The SLATOR tool fastens to a steep slate or asphalt shingle roof and firmly clamps a ladder into position.

Falls are the leading cause of injuries and death at the workplace. In fact, according to OSHA, falling accounted for nearly 37 percent of all deaths in 2013 and is listed among constructions “fatal four.” Roofing professionals have always been particularly vulnerable to this danger. The inventors of SLATOR hope to change this. “We look forward to the day when falling off roofs was something that used to happen,” says Ronny Roseveare, co-owner of SLATOR.

A team of three remodelers/roofers from Lynchburg, Va. made a commitment to safety when they began their business in 2013. “In order to do the job right, we have to figure out a way to be safe,” says Roseveare. Between busy days working on houses, they began perfecting their approach to safety. Soon the Secure Ladder And Tie Off Responsibly, or SLATOR, was born.

OSHA compliant and ANSI certified, the thoroughly tested SLATOR tool fastens to a steep slate or asphalt shingle roof and firmly clamps a ladder into position, allowing any tradesman working on a roof easier and safer access to perform their work.

Seal Wounds Instantly

Woundseal

Woundseal

When accidents happen, injured workers can stop bleeding cuts instantly with WoundSeal, a topical powder doctors have used in the hospital for years. Now available through occupational first-aid distributors and over the counter at national pharmacies, WoundSeal creates an instant, protective and waterproof scab. Ideal for the job site, the easy-to-use powder enables injured workers to effectively treat their own wound and avoid exposure to contaminants, like dirt, grease and dust.

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