Lawmakers from both the Massachusetts Senate and House formed the Subcommittee on Scaffolding Safety after a 3-ton scaffold in downtown Boston collapsed on April 3, killing two construction workers and one motorist.
OSHA recently issued eight citations - including one willful - and $119,000 in fines against Bostonian Masonry for alleged safety violations that led to the fatalities. Bostonian Masonry has the right to appeal the citations and fines.
However, the subcommittee has determined that, in general, OSHA fines may not send a strong-enough message to employers that are found guilty of egregious safety violations.
"The prospect of criminal convictions and jail time send a powerful - and necessary - message to companies that might not be deterred by a fine," the subcommittee wrote in its report.
Although the subcommittee notes that the Constitutional principle of preemption limits the power of states under federal OSHA jurisdiction to enforce their own safety standards, the report also points out that "criminal prosecutions are expressly allowed." The subcommittee notes that criminal prosecutions for willful and reckless workplace safety violations in Massachusetts date back to 1942, when the owner of Boston's Cocoanut Grove nightclub was convicted of manslaughter for the deaths of 492 people in a fire at the nightclub.
In addition to using existing criminal statutes - such as assault and battery - to prosecute safety scofflaws, the subcommittee recommends using the state's current reckless driving statutes as a "model" to craft new legislation.
"This new type of statute will create a new criminal negligence homicide statute for deaths on or near a worksite," the subcommittee wrote, adding that employers under the new statute would be "prosecuted for reckless behavior much like a reckless driver."
Subcommittee: Massachusetts Should Become a State-Plan State
Among its other recommendations, the subcommittee "strongly recommends" that Massachusetts apply to become a state OSHA-plan state for its 300,000 public employees, who currently are not covered by federal OSHA or state safety standards.
Massachusetts then should apply to become a full state-plan state, according to the subcommittee, which asserted that OSHA lacks the resources to "successfully implement the needed oversight for all of the state's construction sites."
"Currently, there are 28 inspectors in the New England OSHA office and 60 total inspectors for the three Massachusetts offices in Braintree, Methuen and Springfield," the report says. "With over 100,000 worksites a year in the commonwealth, this reduced number of inspectors means that it would take federal OSHA inspectors 124 years to visit all sites awaiting inspection."
The subcommittee recommended applying to become a state-plan state for public employees first because it "would allow the state to build up the necessary resources and institutional knowledge to then go forward toward the goal of creating a full-scale OSHA plan for both public and private employees in the commonwealth."
New Building Code Regulations Needed
Noting that OSHA has said that states can inspect and license scaffolding equipment, the subcommittee also recommends that the Massachusetts Board of Building Regulations and Standards create "scaffolding safety-specific" building code regulations to protect workers and the public at scaffolding construction sites.
Such regulations should require inspection and licensing of scaffolding on or near public ways and sidewalks and, for construction projects, the onsite presence of a state-licensed safety inspector, the subcommittee says. The subcommittee also recommends studying existing scaffolding regulations in places such as New York City - where projects must include a designated site safety manager - as well as regulations promulgated by the American National Standards Institute.
"The commonwealth of Massachusetts can learn from other regions of the country where public safety regulations have successfully allowed state and municipal officials to protect workers and the general public from negligence and poor training resulting in avoidable accidents," the subcommittee wrote.