GWO Memo for US - DBR October 2018

GWO Memo for US - DBR October 2018

California Delaware Illinois New Jersey New York Pennsylvania Texas Washington D.C.

MEMORANDUM

Ralph Savage, Global Wind Organisation, Head of Communication

TO:

Mark G. Maser, Esq.

FROM:

DATE: October 3, 2018 SUBJECT: BACKGROUND INFORMATION ON GWO AND OSHA SAFETY TRAINING STANDARDS This memorandum † is comprised of five parts. • Part I describes the Global Wind Organisation (“GWO”) and its safety training standards. • Part II provides an explanation of the mandate for U.S. employers to comply with the United States Occupational Safety and Health Administration’s (“OSHA”) requirements for employee safety training. • Part III discusses why and how the GWO’s safety training standards are relevant instruments that employers can use to aid in their compliance with certain OSHA- mandated requirements for training employees who work in the wind power industry. • Part IV explains how industry consensus standards may be used to create legally enforceable job safety requirements in the United States. • Part V examines how liability for deficient safety training may be assessed against employers, third-party trainers, and providers of trainer certifications. I. WHAT IS GWO, AND WHAT TYPES OF SAFETY TRAINING STANDARDS DOES IT PROMULGATE? GWO is a non-profit body founded by leading wind turbine manufacturers and operators in 2012. Safety is the number one priority for companies in the wind power industry and the GWO functions to create a safer and more productive workplace. GWO members strive for an injury free work environment in the wind turbine industry, setting common standards for safety training and emergency procedures.

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In response to the demand for a recognizable basic safety training standard in the wind turbine industry, GWO published the first version of its “BST” (basic safety training) in 2012. The GWO BST describes the requirements for the basic safety training courses that are recommended by GWO members and ensures that the work of any GWO BST-Certified Training Provider (“CTP”) is competent and proficient. To obtain GWO certification, CTPs are subject to an in-depth audit process performed by certification bodies that have been accredited to ISO 9001 and OHSAS 18001 standards and that must follow the rules for accreditation in ISO 17021:2001 when offering certification services for CTPs. Any person that is granted a GWO BST certificate from a CTP is considered competent and knowledgeable within the field of basic safety in the wind power industry. GWO members accept any person that holds a GWO BST certificate as someone that possesses the required knowledge to stop an unsafe work situation. GWO works with its membership and the wind power industry supply chain, sharing industry statistics and risk evaluations, in order to identify training objectives. In some cases the training objectives are subsequently developed into new GWO standards. For example, the GWO Basic Technical Training Standard (“BTT”) and the GWO Basic Safety Training Refresher Standard (“BTSR”) are two of GWO’s training objectives that were developed into new standards. II. OSHA REQUIREMENTS FOR EMPLOYEE TRAINING The U.S. Occupational Safety and Health Act of 1970 (“OS&H Act”) mandates that employers must comply with safety and health standards and regulations promulgated by the Occupational Safety and Health Administration (“OSHA”), or by a state with an OSHA- approved state plan. i See 29 U.S.C. §651 et seq . In addition, the OS&H Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace that is free from recognized hazards likely to cause death or serious physical harm. See id . To this end, the OS&H Act and the regulations promulgated thereunder impose multiple duties upon employers ii and provide employees with many rights, including the right to receive clear training and information (in layman's terms and in a language that employees understand) about the hazards of their workplace, ways to avoid harm, and applicable OSHA standards and laws. See e.g ., W ORKPLACE S AFETY : OSHA AND OSH A CT O VERVIEW available at https://employment.findlaw.com/workplace-safety/workplace-safety-osha-and-osh-act- overview.html. There are more than 100 OSHA standards that contain “explicit safety and health training requirements to ensure that workers have the required skills and knowledge to safely do their work.” O CCUPATIONAL S AFETY AND H EALTH A DMINISTRATION , T RAINING R EQUIREMENTS IN OSHA S TANDARDS (OSHA 2254-09R 2015) (“T RAINING R EQUIREMENTS IN OSHA S TANDARDS ”) available at https://www.osha.gov/Publications/osha2254.pdf and O CCUPATIONAL S AFETY AND H EALTH A DMINISTRATION , R ESOURCE FOR D EVELOPMENT AND D ELIVERY OF T RAINING TO W ORKERS (OSHA 3824-08 2015) available at

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https://www.osha.gov/Publications/osha3824.pdf. Such requirements reflect OSHA’s conviction that training is an essential part of every employer’s safety and health program. See T RAINING R EQUIREMENTS IN OSHA S TANDARDS . Federal OSHA Standards are grouped into four major categories: General Industry (29 C.F.R. §1910); Maritime (29 C.F.R. §§1915-19); Construction Industry (29 C.F.R. §1926); and Agriculture (29 C.F.R. §1928). While some standards are specific to just one category, others apply across industries. Among the standards with similar training requirements for all sectors of industry are those that address personal protective equipment and hazard communication. See O CCUPATIONAL S AFETY AND H EALTH . All private employers in the U.S. wind power industry are subject to certain requirements of both OSHA’s General Industry and Construction iii Standards. Some private employers in the U.S. wind power industry (off-shore wind power generation) may also be required to comply with OSHA Maritime Standards. The following is a partial list of OSHA General Industry, Maritime, and Construction Standards that include some form of an employee training requirement: iv General Industry: • 29 C.F.R. §1910.95 Occupational Noise Exposure • 29 C.F.R. §1910.132 Personal Protective Equipment - General Requirements • 29 C.F.R. §1910.134 Respiratory Protection • 29 C.F.R. §1910.146 Permit Required Confined Space • 29 C.F.R. §1910.147 Control of Hazardous Energy (Lock-Out/Tag-Out)

• 29 C.F.R. §1910.178 Powered Industrial Trucks • 29 C.F.R. §1910.179 Overhead and Gantry Cranes

• 29 C.F.R. §1910.252 Welding, Cutting, and Brazing – General Requirements • 29 C.F.R. §1910.269 Electric Power Generation, Transmission, and Distribution • 29 C.F.R. §1910.1200 Hazard Communication

Maritime: • 29 C.F.R. §1918.97 • 29 C.F.R. §1918.98

First Aid and Lifesaving Facilities

Qualifications of Machinery Operators and Supervisory Training

Construction: • 29 C.F.R. §1926.35

Employee Emergency Action Plans

• 29 C.F.R. §1926.102 Eye and Face Protection • 29 C.F.R. §1926.303 Power-Operated Hand Tools • 29 C.F.R. §1926.416 Electrical – General Requirements

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• 29 C.F.R. §1926.451 Scaffolds – General Requirements • 29 C.F.R. §1926.503 Fall Protection

• 29 C.F.R. §1926.602 Material Handling Equipment • 29 C.F.R. §1926.760 Steel Erection – Fall Protection • 29 C.F.R. §1926.1060 Stairways and Ladders • 29 C.F.R. §1926.1211 Confined Space – Rescue and Emergency Services • 29 C.F.R. §1926.1424 Cranes and Derricks – Work Area Control OSHA offers Outreach Training Programs for General Industry, the Construction Industry, Maritime, and Disaster Site Work. See OSHA O UTREACH T RAINING P ROGRAM FAQ S available at https://www.osha.gov/dte/outreach/faqs.html. According to OSHA, participation in the OSHA Outreach Training Program is voluntary because OSHA Outreach Training Program training “ does not meet the [workplace-specific] training requirements contained in any OSHA standard.” OSHA D IRECTORATE OF T RAINING & E DUCATION , O UTREACH T RAINING P ROGRAM R EQUIREMENTS (Jan 2017) (“O UTREACH T RAINING P ROGRAM ”) available at https://www.osha.gov/dte/outreach/program_requirements.pdf. Nevertheless, because OSHA Outreach Training Program training provides students with additional useful knowledge about workplace safety and health hazards, some states (Connecticut, Massachusetts, Missouri, Nevada, New Hampshire, New York, Rhode Island, and West Virginia) v and local jurisdictions have adopted laws that mandate employee participation in 10 Hour and/or 30 Hour OSHA Construction Industry Outreach Training Program training. vi See O UTREACH T RAINING P ROGRAM and 365 OSHA T RAINING : S TATES R EQUIRING OSHA 10 AND / OR 30 T RAINING (“S TATES T HAT R EQUIRE OSHA O UTREACH T RAINING ”) available at http://oshahazwopersafetytraining.com/safety-articles/states-requiring-osha-10-hour-andor-30- hour-training/. Moreover, some employers and unions require workers to have OSHA Construction Industry Outreach Training Program training in order to be permitted to work on job sites or to fulfill their own safety program training goals. III. GWO’s SAFETY STANDARDS CAN AID COMPLIANCE WITH OSHA TRAINING REQUIREMENTS GWO’s BST and BTT standards can be used to aid employers in their compliance with certain OSHA-mandated requirements for training employees who work in the wind power industry. The BST and BTT standards includes instruction on First Aid, Manual Handling, Fire Awareness, Working at Heights, Sea Survival, Electrical, Mechanical, and Hydraulic; components of each would be expected to address certain aspects of OSHA’s safety training requirements for employees who work in the wind power sector of the General, Construction, and Maritime Industries. vii, viii There are no requirements that the employers themselves must provide training that is required for compliance with OSHA Standards and, therefore, required training may be provided by qualified third-parties such as GWO’s CTPs. With the exception of its Authorized Outreach Training Program Trainers, OSHA does not approve, certify, or endorse individual trainers, nor training programs. According to OSHA, it is the responsibility of the employer to determine if a trainer meets minimum requirements and

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possesses the necessary qualifications. See OSHA S TANDARDS I NTERPRETATION L ETTER (Feb. 16, 2010) R E : T RAINER Q UALIFICATIONS UNDER THE HAZWOPER S TANDARD (“T RAINER Q UALIFICATIONS ”) available at https://www.osha.gov/laws-regs/standardinterpretations/2010- 02-16-0. For some of its Standards, OSHA has prescribed minimum requirements and qualifications for trainers (whether the trainers are employees of the employer, or not). For example, in OSHA’s Hazardous Waste Operations and Emergency Response (“HAZWOPER”) Standard, OSHA mandates that:

Trainers shall be qualified to instruct employees about the subject matter that is being presented in training. Such trainers shall have satisfactorily completed a training program for teaching the subjects they are expected to teach, or they shall have the academic credentials and instructional experience necessary for teaching the subjects. Instructors shall demonstrate competent instructional skills and knowledge of the applicable subject matter.

29 C.F.R. §1910.120(e)(5). When asked to opine on how the agency would evaluate compliance with the above requirement, OSHA responded by stating that, as a general matter, “a trainer must be able to demonstrate proficiency and understanding of the material to be transmitted to the trainees and have some credentials or experience in training others.” See T RAINER Q UALIFICATIONS . Because GWO’s CTPs are subject to an in-depth audit process performed by accredited certification bodies, employers should be able to feel confident that GWO CTPs will meet or exceed OSHA’s test for trainer proficiency, credentials, and experience. IV. USE OF INDUSTRY CONSENSUS STANDARDS TO CREATE LEGALLY ENFORCEABLE JOB SAFETY REQUIREMENTS “OSHA has long relied on industry standards to prove its case in enforcement actions.” William J. Wayhoff, T HE G ENERAL D UTY C LAUSE : H OW D OES OSHA P ROVE ITS C ASE AND W HAT R OLE DO I NDUSTRY S TANDARDS P LAY (“I NDUSTRY S TANDARDS ”) available at https://www.americanbar.org/content/dam/aba/events/labor_law/2018/papers/general-duty- clause.authcheckdam.PDF. As discussed in the opening paragraph of Part II of this memorandum, the General Duty Clause of the OS&H Act requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. §654(a)(1). OSHA uses the “catch-all” General Duty Clause “where there is no OSHA standard that applies to the particular hazard involved.” I NDUSTRY S TANDARDS ( citing O CCUPATIONAL

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S AFETY AND H EALTH A DMINISTRATION , S AFETY AND H EALTH T OPICS : C OMBUSTIBLE D UST , available at https://www.osha.gov/dsg/combustibledust/consensus.html). To be successful in making out a prima facie case for a General Duty Clause citation, OSHA must prove that: (1) a condition or activity in the workplace presents a hazard; (2) the condition or activity is a “recognized” hazard; (3) the hazard is causing, or is likely to cause, death or serious physical harm to employees; and (4) a “feasible means” exists to materially reduce or eliminate the hazard. See I NDUSTRY S TANDARDS ( citing Fabi Constr. Co. v. Sec'y of Labor, 508 F.3d 1077, 1081 (D.C. Cir. 2007)). It is not necessary for the employer to have actual knowledge of the hazard for the hazard to be considered “recognized.” See I NDUSTRY S TANDARDS . “Knowledge may be imputed to the employer based on knowledge of the hazard in the employer’s industry.” I NDUSTRY S TANDARDS ( citing L.R. Willson & Sons, Inc. v. Occupational Safety & Health Review Comm'n, 698 F.2d 507, 513 (D.C. Cir. 1983)). There are two ways that OSHA can use industry consensus standards to create legally enforceable job safety requirements. The first way is to incorporate (by reference) an industry consensus standard into one of OSHA’s own Standards. The second way is to use an industry consensus standard as evidence, under the General Duty Clause, of “industry recognition” of a hazard and of a “feasible means of abatement” of the hazard. See I NDUSTRY S TANDARDS . If OSHA incorporates (by reference) an industry consensus standard into one of its own Standards, the mandatory provisions of such industry consensus standard ( i.e ., provisions that contain the words “shall,” “must,” or “will,” or other mandatory language) will “have the same force and effect as [other OSHA standards].” I NDUSTRY S TANDARDS ( quoting 29 C.F.R. §1910.6(a)(1)). Accordingly, if OSHA is able to show that an employer violated a mandatory industry consensus standard that was properly incorporated (by reference) into an OSHA Standard, OSHA can establish a per se violation and there is no need to make use of the General Duty Clause. See I NDUSTRY S TANDARDS . If an industry consensus standard has not been incorporated by reference into an OSHA Standard, OSHA may nevertheless use the industry consensus standard as evidence of a General Duty Clause citation. In such instances, OSHA relies upon industry consensus standards to prove both the “industry recognition” and “feasible means of abatement” elements of its prima facie case. See I NDUSTRY S TANDARDS . V. LEGAL LIABILITY FOR DEFICIENT SAFETY TRAINING OSHA Enforcement : If an employer fails to provide his/her employees with adequate safety training that is required by applicable OSHA Standards, OSHA can issue citations and monetary penalty assessments against the employer. Here, the issue is “black and white” for OSHA: Did the employer fulfill the requirements of adequate safety training or not? It matters not whether the employer made some sort of efforts to provide adequate training by vetting its own company trainers or by retaining the services of credentialed third-party instructors. Instead, only the outcome matters: Did the employer fully satisfy its obligation to provide adequate safety

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training? In cases where a failure to provide adequate safety training was willful (or in blatant disregard of the OSHA Standards) and such action/inaction causes there to be a work-related employee fatality, OSHA may bring criminal charges against both the employer’s management personnel and the organization. Such criminal violations of OSHA Standards may be punishable by up to six months in jail and a penalty of $250,000 for individuals, and by a penalty of $500,000 for businesses. See 29 U.S.C. §666. Under OSHA’s Multi-Employer Policy, “there are circumstances where more than one employer may be cited for a violation of an OSHA standard, and where an employer may be held responsible for a hazard even though none of its own employees were exposed to it.” See OSHA S TANDARDS I NTERPRETATION L ETTER (July 25, 2003) R E : R ELEVANCE OF NFPA 70E I NDUSTRY C ONSENSUS S TANDARD . . . W HETHER OSHA R EQUIREMENTS A PPLY TO O WNERS (“O WNER R EQUIREMENTS ”) available at https://www.osha.gov/laws-regs/standardinterpretations/2003-07- 25. Under the Multi-Employer Policy, OSHA compliance officers must use a two-step analysis to determine if an employer should be cited for a violation. “The first step is to determine if the employer has responsibilities with respect to OSHA requirements.” Id. Such an evaluation is based on an employer's role at a worksite. See id.

“There are four employer role categories: (1) "exposing" - an employer whose own employees are exposed to the hazard; (2) "creating" - an employer that creates a hazard to which a different employer's employees are exposed; (3) "correcting" - an employer that has been brought in specifically to correct hazards; and (4) "controlling" - an employer with general supervisory authority over the worksite with the power to have safety and health violations corrected.”

Id. (Emphasis added). If an employer fits within one or more of the above categories, a compliance officer must next determine if the employer took sufficient steps to meet its obligations. See id . “Only if insufficient measures were taken may a citation be issued.” Id . The Multi-Employer Policy is not one of strict liability. It states that a lesser degree of care is required of a controlling employer than that of the other categories. See id. In assessing the degree of care required, compliance officers are instructed to “consider factors such as the scale of the project, nature and pace of the work, and the subcontractors' safety history.” Id. Personal Injury Claims : Generally, U.S. employees are barred from suing their employers for workplace injuries. The U.S. workers’ compensation benefits system was designed as a “trade-off” where, in exchange for employees giving up their rights to sue their employers for personal injuries, such employees gained the right to receive compensation benefits, regardless of fault. Exceptions to

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this rule apply for: (i) intentional torts (the most common of which being battery ix and assault x ); and (ii) injuries caused by third-parties. Injuries that are caused by third-parties are commonly the result of “negligence” – the failure to exercise the degree of care that a reasonably prudent person would exercise in like circumstances. In order to prevail on a claim of negligence, the injured person must prove the following elements to show that the offending person failed to act with the degree of care that a reasonably prudent person would exercise in like circumstances: 1) Duty - The offending person owed a legal duty of care to the injured person under the circumstances; 2) Breach – The offending person breached the duty by acting or failing to act in a certain manner; 3) Causation – It was the offending person’s actions (or inaction) that actually caused harm to the injured person; and 4) Damages - A court must be able to compensate the injured person for the harm that was suffered (usually through monetary compensation for expenses such as medical care and property damage). See e.g ., Palsgraf v. Long Island R.R., 249 N.Y. 511 (1928). When using the above constructs to analyze potential liability for deficient safety training, the most-likely theoretical conclusions are as follows: • An employer that fails to comply with OSHA requirements to provide adequate safety training to employees can be subject to OSHA citations and monetary penalty assessments. If the employer’s failure to provide the required safety training was willful and such failure to provide training results in an employee fatality, the employer and its managers can be subject to criminal prosecution. At Multi-Employer sites, parties with “Correcting” and “Controlling” authority/obligations might also (depending upon the complexity/scope of the work and the attendant degree of care that is required) be subject to OSHA citations, penalties, and/or criminal enforcement for the “Exposing”/”Creating” employer’s failure to provide required training to its employees. • An employer that fails to comply with OSHA requirements to provide adequate safety training to employees is -- because of the U.S. workers’ compensation benefits system -- not likely to be subject to personal injury suits brought by an injured employee unless it can be shown that the employer’s failure to provide the required training was intentional/willful. An employer’s negligent selection of a

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training provider should not ordinarily give rise to a situation that permits an injured employee to circumvent the U.S. workers’ compensation benefits system. • If a non-employer third-party trainer (“NE3PT”) fails to provide adequate safety training as required by OSHA standards, and such failure to provide the adequate training causes injury to an employee, the NE3PT may be subject to liability for negligence claims that are brought against it by either the injured employee or the employer who retained the NE3PT’s services. • IF: (i) a provider of trainer certifications (“PTC”) issues a trainer certification to a NE3PT without having fully ensured that the NE3PT satisfies certification requirements; (ii) the improperly certified NE3PT fails to provide adequate safety training to employees as required by OSHA standards; and (iii) the NE3PT’s failure to provide adequate training results in injury to an employee, THEN: (a) the PCT may be subject to liability for negligence claims that are brought against it by either the injured employee or the employer who retained the NE3PT’s services (and perhaps even by the NE3PT); and (b) the NE3PT may be subject to liability for negligence claims that are brought against it by either the injured employee or the employer who retained the NE3PT’s services. It is because of the theoretical conclusions presented above that both NE3PT and PCT organizations can be expected to take thoughtful precautions to defend themselves against potential liability. Chief among these precautions is most likely to be the creation of mandatory contracting provisions that are similar in intent to what OSHA itself has said about its own Construction Industry Outreach Training Programs ( i.e ., they do not meet training requirements for any OSHA Standard). -- END --

† This memorandum is for informational purposes only and not for the purpose of providing legal advice. The opinions expressed in this memorandum are the opinions of the author and may not reflect the opinions of the firm or any individual attorney. i The OSH Act covers most private sector employers and their employees in the 50 states, the District of Columbia, Puerto Rico, and other U.S. territories. Coverage is provided either directly by the Federal OSHA or by an OSHA-approved state job safety and health plan. The OSH Act does not cover self-employed persons; farms that employee only immediate members of the farmer’s family; working conditions for which other Federal agencies (operating under authority of other Federal laws) regulate worker safety (e.g., mining, nuclear energy); or, employees of state and local governments, unless they are in one of the states operating an OSHA-approved state plan. See U NITED S TATES D EPARTMENT OF L ABOR , S AFETY AND H EALTH S TANDARDS : O CCUPATIONAL S AFETY AND H EALTH (“O CCUPATIONAL S AFETY AND H EALTH ”) available at https://webapps.dol.gov/elaws/elg/osha.htm.

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ii As defined within the OSH Act, an “ employer ” is “any person engaged in business affecting commerce who has employees, but does not include the United States . . . or any State or political subdivision of a State.” 29 U.S.C. §652(5). Therefore the OSH Act applies to employers in, inter alia , construction, manufacturing, longshoring, agriculture, unions, disaster relief, and medicine. See e.g ., Max Muller, The Legal Side of HR Practice , American Management Association (2012). OSH Act applicability is not based on volume of business or number of employees. A person or business with a right of control and supervision will be deemed an employer in almost all cases. iii OSHA's regulations define "construction work" as "construction , alteration, and/or repair, including painting and decorating." 29 C.F.R. §1910.12(b) and 29 C.F.R. §1926.32(g). iv For a complete listing of OSHA Standards that contain employee training requirements, see O CCUPATIONAL S AFETY AND H EALTH A DMINISTRATION , T RAINING R EQUIREMENTS IN OSHA S TANDARDS (OSHA 2254-09R 2015) available at https://www.osha.gov/Publications/osha2254.pdf. v In Connecticut: “[a]ny person performing the duties of a mechanic, laborer or worker on a public works project shall be required, as a condition of performing such work, to demonstrate compliance with Section 31-53b of the Connecticut General Statutes by having completed a construction safety and health course, program or training . . . [in construction safety or health of at least ten hours duration approved by the federal Occupational Safety and Health Administration].” C ONN . G EN . S TAT . §§31-53b-1 and 31-53b-2(a). In Massachusetts: “. . . all employees to be employed at [a public work or public building] worksite will have successfully completed a course in construction safety and health approved by the United States Occupational Safety and Health Administration that is at least 10 hours in duration at the time the employee begins work . . .” M ASS . G EN . L AWS ch.30, §39S. In Missouri: “Any contractor for any public body for purposes of construction of public works and any subcontractor to such contractor shall provide a ten-hour Occupational Safety and Health Administration (OSHA) construction safety program for their on-site employees which includes a course in construction safety and health approved by OSHA or a similar program . . . which is at least as stringent as an approved OSHA program, unless such employees have previously completed the required program.” Missouri Construction Safety Training Act, M O . R EV . S TAT . §292.675. In Nevada: “(1) If a construction worker other than a supervisory employee fails to present his or her employer with a current and valid completion card for an OSHA-10 course not later than 15 days after being hired, the employer shall suspend or terminate his or her employment. (2) If a supervisory employee on a construction site fails to present his or her employer with a current and valid completion card for an OSHA-30 course not later than 15 days after being hired, the employer shall suspend or terminate his or her employment.” N EV . R EV . S TAT . §618.983. In New Hampshire: “Any person signing a contract to work on a construction, reconstruction, alteration, remodeling, installation, demolition, maintenance, or repair of any public work or building by a state agency, municipality, or instrumentality thereof, and with a total project cost of $100,000 or more, shall have an Occupational Safety and Health Administration (OSHA) 10-hour construction safety program for their on-site employees. All employees are required to complete the program prior to beginning work. The training program shall utilize an OSHA- approved curriculum.” N.H. R EV . S TAT . Title XXIII, Ch. 227, §277:5-a. In New York: “The advertised specifications for every contract for the construction, reconstruction, maintenance and/or repair of public work to which the state or a municipality is a party, where the total cost of all work to be performed under the contract is at least two hundred fifty thousand dollars, shall contain a provision requiring that all laborers, workers, and mechanics employed in the performance of the contract on the public work site, either by the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract, shall be certified prior to performing any work on the project as having successfully completed a course in construction safety and health approved by the United States department of labor's occupational safety and health administration that is at least ten hours in duration.” NY L AB L §220-h.

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In Rhode Island: “All contractors performing work on municipal and state construction projects with a total project cost of one hundred thousand dollars ($100,000) or more, shall have an OSHA "ten (10) hour construction safety program" for their on-site employees. The training program shall utilize instructors trained by the occupational safety and health administration, using an OSHA approved curriculum. Graduates shall receive a card from the U.S. department of labor occupational safety and health administration certifying the successful completion of the training course.” R.I. G EN . L AWS §37-23-1. In West Virginia: “No person or business entity providing services as a contractor or subcontractor under a contract, entered on or after July 1, 2014, for the construction, reconstruction, alteration, remodeling or repairs of any public improvement, by or on behalf of a public authority, where the total contract cost of all work to be performed by all contractors and subcontractors is in excess of $50,000, may use, employ or assign any person to a public improvement work site who has not successfully completed a ten-hour construction safety program designed by OSHA, no later than twenty-one calendar days after being employed at or assigned to the public improvement work site.” W. V A . C ODE §21-3-22. vi The mandatory curriculum for the 10 Hour Construction Industry Outreach Training Program includes introductions to OSHA, personal protective equipment, lifesaving equipment, health hazards in construction, and the “focus four hazards,” which are falls, electrocutions, struck-by hazards, and caught-in or between hazards. Elective topics include, among other things, cranes, materials handling, scaffolds, ladders and one hour of optional material covering industry specific hazards. See S TATES T HAT R EQUIRE OSHA O UTREACH T RAINING . The mandatory curriculum for the 30 Hour Construction Industry Outreach Training Program mirrors that of the required curriculum of the 10 Hour version of the course, but the training time that is devoted to each topic is increased. 30 Hour course electives may include, among other things, safety information about concrete construction, excavations, confined space entry, steel erection, powered industrial trucks, welding and cutting, as well as 3 hours of optional material covering industry hazards and/or an expansion of discussion on required topics. See id. vii It is expected that, in order to satisfy safety training requirements for all of the OSHA General Industry, Construction, and Maritime Standards that are applicable to the working conditions of the wind power industry, employers would need to supplement the GWO BST and BTT standards instruction with additional work-place specific training. viii Although similar in concept to OSHA’s 10 Hour and 30 Hour Construction Industry Outreach Training Programs, GWO’s BST and BTT standards were developed to address the unique safety needs of the wind power industry. Accordingly, as the wind power industry continues to grow within the United States, there might be opportunities for GWO members to petition OSHA to: (a) expand its Construction Industry Outreach Training Program to include training offerings which, rather than being generally applicable to all types of construction work, are specifically tailored to meet the unique needs of the wind power industry; and (b) provide accreditation to GWO members (and others) to deliver a Construction Industry Outreach Training Program training that is specific to the wind power industry.

A physical act that results in harmful or offensive contact.

ix

An attempted battery, or threat to commit a battery.

x

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