Spartanburg attorney, Kristin Gray, authored the Expert Analysis, "Slippery Super Bowl Should Raise OSHA Red Flags For Cos.," to Law360.
You can read the article below, or click here to view on the Law360 website. (subscription required)
____________________________________________________________
The Kansas City Chiefs and the Philadelphia Eagles faced off at the Super Bowl last month, but it looked more like they were playing the big game on an ice rink, rather than a football field.
Both teams appeared to slip and slide across the nearly $800,000 turf, drawing significant media attention and criticism from fans about the field conditions. Indeed, multiple players changed their cleats in a futile effort to gain more traction.
While Eagles coach Nick Sirianni was careful not to blame the game's outcome on the field conditions, the situation got my employment lawyer brain thinking about workplace safety in sports and elsewhere.
What would happen if such slick conditions permeated the average American workplace? I imagine the Occupational Safety and Health Administration would have a lot to say. And, employers would want to listen up since, per the U.S. Department of Labor's recent enforcement memorandum, penalties for OSHA violations will be increasing annually with inflation.
Per the agency's stated mission, "Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance."
OSHA, which is part of the DOL maintains general industry regulations on walking and working surfaces to guard against hazards and prevent injuries from slips, trips, falls and other workplace accidents.
While OSHA has no formal training requirements specific to slips, trips and falls, employers are expected to train employees to recognize and avoid unsafe working conditions.
Per Title 29 of the Code of Federal Regulations, Subpart D, employers must generally ensure that walking-working surfaces are kept in a clean, orderly and sanitary condition, as well as free from hazards — including, for example, spills.
The floors of workrooms must be maintained in a clean and dry — to the extent feasible — condition. There are special requirements if wet processes are used in the workplace.
In those circumstances, drainage must be maintained with dry standing spaces provided — e.g., false floors, platforms and mats — to the extent feasible.
Employees are also entitled to a safe means of access and egress to or from walking-working surfaces. Employers are further required, in part, to:
- Ensure that walking-working surfaces are inspected regularly and maintained in a safe condition;
- Ensure that hazardous conditions on walking-working surfaces are corrected or repaired before an employee uses the surface again;
- Ensure that, if the correction or repair cannot be made immediately, the hazard is guarded to prevent employees from using that surface until it is corrected or repaired; and
- Ensure that, when any correction or repair involves the structural integrity of the walking-working surface, a qualified person performs or supervises the correction or repair.
The successful implementation of these standards requires employers to be vigilant and proactive, rather than simply reactive. It is also important that employers not allow themselves to be lulled into a false sense of security by a strong prior safety record. It is often the small things that can have big consequences when we are caught off guard.
For example, how often have you walked into a business establishment, noticed a yellow caution sign on the floor and found no signs of any actual hazard? While there may have been a wet spot there hours, days, weeks or months earlier, no one bothered to remove the sign once the situation was resolved.
The new danger is that, over time, we may become desensitized to the caution signs and disregard them when walking through an area that may very well be wet and slippery. Instead of the boy who cried wolf, it is the yellow sign who cried, "slippery when wet!"
According to OSHA and the Bureau of Labor Statistics, slips, trips and falls cause nearly 700 fatalities per year, not to mention the far more numerous and common types of nonfatal workplace injuries like sprains, strains, scrapes, cuts, bruises and even concussions.
Slips, trips and falls are said to cause 15% of all accidental deaths, and falls are said to cause 17% of all disabling occupational injuries. In 2020 alone, 18% of the roughly 1.2 million nonfatal work injuries resulting in days away from work were related to slips, trips and falls, per the bureau.
The fact that many of these incidents are preventable is quite troubling, and should give employers and their legal counsel cause for concern. There are the obvious financial costs associated with medical care, time away from work, workers' compensation benefits, legal fees and repair costs.
Indeed, serious OSHA violations are subject to a maximum penalty of $15,625 per violation. Maximum penalties for failure to abate — i.e., failure to timely comply with a cited standard or regulation, or to eliminate a recognized hazard identified during an OSHA inspection — are $15,625 per day and generally limited to a 30-day maximum.
Willful or repeated violations are subject to an even greater maximum penalty of $156,259 per violation, with a minimum penalty of $11,162 per violation with some exceptions.
Per the DOL's Dec. 20, 2022, enforcement memorandum, these penalties are now subject to annual adjustments for inflation to "improve the effectiveness of civil monetary penalties and to maintain their deterrent effect."
There are also the less obvious — but no less important — costs that come in the form of decreased employee morale and productivity, as well as increased employee turnover during a time when employers are already dealing with a shortage of workers.
The good news is that employers can take simple steps today to prevent injuries tomorrow, and there are plenty of resources available.
To help prevent accidents and injuries, OSHA maintains free recommended training materials and training tips for employers. Small businesses can also take advantage of OSHA's on-site consultation program for more individualized assistance from a consultant at no cost.
These resources are informative, but it is also important for employers to:
- Regularly emphasize that employees wear proper footwear in the workplace for appropriate traction;
- Keep areas clear of potential tripping hazards, such as electrical cords and wires;
- Ensure rugs, mats and other floor coverings lie completely flat;
- Use proper signage when a hazard or spill is present;
- Ensure spills and hazards are promptly addressed using appropriate materials, such as cleaners that will not leave a slippery residue behind;
- Promptly remove caution signage once such issues are resolved;
- Encourage use of handrails on stairs;
- Ensure employees using any special equipment, such as ladders, are properly trained; and
- Take care to arrange for proper lighting and housekeeping overall.
Legal counsel can develop safety training and policies tailored to the particular workplace at issue, as well as conducting specialized training for the employer's designated safety officers on the enforcement of safety policies and standards.
Such training should also educate the safety officers on how to prepare for an OSHA inspection and how to implement any emergency response action plan. In the event of an OSHA citation, legal counsel may negotiate a reduced violation classification and lower monetary penalty. Depending on the circumstances, legal counsel could attempt to have a citation vacated.
While a yellow caution sign on the football field would have been quite a sight, even a change in top-quality footwear did not seem to do the players much good in the big game. Regardless, the field conditions certainly did not stop the fans from enjoying the game in person and on the small screen.
To sum things up: The cost of a ticket to the Super Bowl is roughly $6,000 to $27,500, and the cost of premium turf carefully cultivated for nearly two years is roughly $800,000, but the warm fuzzy feelings from watching Donna Kelce hug her sons — Chiefs tight end Travis Kelce and Eagles center Jason Kelce — on the field after the game were priceless.
Knowing your workplace is safe? Also priceless.
____________________
If you have any questions regarding this article, please contact the author, Kristin Gray, partner in our Spartanburg office at kgray@fordharrison.com.