About 2 million construction workers exposed to respirable crystalline silica in over 600,000 workplaces. OSHA estimates that more than 840,000 of these workers are exposed to silica levels that exceed the new permissible exposure limit (PEL).
Exposure to respirable crystalline silica
can cause kidney disease, silicosis, lung cancer and other respiratory
diseases. Here is some common construction equipment that can expose workers to
dangerous levels of silica:
Masonry saws
Grinders
Drills
Jackhammers
Handheld powered
chipping tools
Vehicle-mounted
drilling rigs
Milling equipment
Crushing machines
Heavy demolition
equipment
The construction standard does not apply in
situations where exposures will remain low under any foreseeable conditions.
This includes tasks such as mixing mortar, pouring concrete foundation walls
and removing concrete formwork.
What Does the Silica Standard Require?
The standard requires that employers limit
worker exposure to respirable crystalline silica and take other steps to
protect workers.
The standard provides flexible alternatives, especially useful
for small employers. Employers can either use a control method laid out in
Table 1 of the construction standard, or they can measure worker exposure to silica
and independently decide which dust controls work best to limit exposures to
the PEL in their workplaces.
Regardless of which exposure control method is used, all
construction employers covered by the standard are required to do the
following:
Establish and implement a written exposure
control plan that identifies tasks that involve exposure and methods used to
protect workers, including procedures to restrict access to work areas where
high exposures may occur
Designate a competent person to implement the
written exposure control plan
Restrict housekeeping practices that expose
workers to silica where feasible alternatives are available
Offer medical exams—including chest X-rays and
lung function tests—every three years for workers who are required by the
standard to wear a respirator for 30 or more days per year
Train workers on work operations that result in
silica exposure as well as on ways to limit exposure
Keep records of workers’ silica exposure and
medical exams
What is Table 1?
Table 1 matches common construction tasks
with dust control methods, so employers know exactly what they need to do to
limit worker exposure to silica. The dust control measures listed in the table
include methods known to be effective, such as using water to keep dust from
getting into the air or using ventilation to capture dust. In some operations,
respirators may also be needed.
Employers who correctly follow Table 1 are
not required to measure worker exposure to silica and are not subject to the
PEL.
Table 1 Example: Handheld Power Saws
If workers are sawing silica-containing
materials, they can use a saw with a built-in system that applies water to the
saw blade. The water limits the amount of respirable crystalline silica that
gets into the air.
In this example, if a worker uses the saw outdoors for four hours or less per day, no respirator would be needed. If a worker uses the saw for more than four hours per day or for any amount of time indoors, he or she would need to use a respirator with an assigned protection factor (APF) of at least 10. In this case, a NIOSH-certified filtering facepiece respirator that covers the nose and mouth (sometimes referred to as a dust mask) could be used. If a worker needs to use a respirator for 30 or more days a year, he or she would need to be offered a medical exam.
Alternate Exposure Control Methods
Employers who do not use control methods on
Table 1 must do the following:
Measure the amount of
silica that workers are exposed to if it may be at or above an action level of
25 micrograms of silica per cubic meter (μg/m3) of air, averaged over an eight-hour day
Protect
workers from respirable crystalline silica exposures above the PEL of 50 μg/m3,
averaged over an eight-hour day
Use dust
control methods to protect workers from silica exposures above the PEL
Provide
respirators to workers when dust controls cannot limit exposures to the PEL
For additional information on OSHA’s silica rule, go to www.osha.gov/silica.
Silica Exposure Precautions
Found in commonly used materials
such as concrete, asphalt, coal dust and natural stone, silica particles can be
inhaled when dust is created during handling.
What’s a Little Dust?
Although silica looks like dust, it’s much more harmful to your lungs. Silica dust is a human lung carcinogen, and breathing it in causes the formation of scar tissue on the lungs, reducing the lungs’ ability to take in oxygen. Without proper protection, exposure poses a serious threat to workers. The most severe exposures to silica dust result from abrasive blasting, but those working on cement and brick construction sites are at a high risk as well.
Silica Safety Precautions
When working with silica, take the
following precautions to protect yourself and others.
Use all available work practices—water sprays, ventilation systems and blasting cabinets—to control dust exposures.
If you’re working with a new material, check the label for silica. If silica is listed, refer to the product’s Safety Data Sheet (SDS) for more information.
Always wear proper personal protective equipment. When respirator protection is required, wear only a N100 NIOSH-certified respirator, or a Type CE abrasive-blast supplied-air respirator for abrasive blasting.
Make sure you are properly trained in the use and maintenance of your respirator. Contact your supervisor or other designated person if you need assistance or have any questions.
Don’t alter the respirator in any way.
Always inspect your respirator before use. Alert your supervisor and replace your respirator if you find a crack, puncture, tear, leak or any other unusual condition.
Shave facial hair when you’re going to be working in environments that require a respirator. Even a tight-fitting respirator will not create a good seal between the respirator and your face if you have a beard or mustache.
Wear disposable or washable work clothes and shower if facilities are available. Vacuum the dust from your clothes or change into clean clothing before leaving the worksite.
Be aware of the operations and job tasks creating silica exposures in your workplace environment and know how to protect yourself. Ask your supervisor if you have any questions.
Be aware of the health hazards related to crystalline silica exposure. Habits like smoking can add to lung damage caused by silica.
Don’t eat, drink, smoke or apply cosmetics in areas where silica dust is present. Wash your hands and face outside of dusty areas before performing any of these activities.
Take
Extra Care
Remember, take extra care at all times when working with silica—a little dust now can cause big health problems later.
Helpful Tips for Staying Safe When Working with Silica
Although silica dust looks harmless and
can be so fine that it is invisible to the naked eye, it is very harmful to
your lungs. When small particles of silica dust enter the air that you breathe,
it becomes trapped in your lungs. As the dust in your lungs builds up, it
causes the formation of scar tissue on your lungs, reducing their ability to
take in oxygen. Without proper protection, exposure poses a serious and
potentially fatal health threat.
To minimize your risk of disease caused by silica inhalation, adhere to the following safety precautions while on the job.
Always
wear personal protective equipment (PPE) such as goggles, boots and a N95 NIOSH
certified respirator.
Wear
disposable or washable work clothes and shower immediately after working with
materials containing silica. Vacuum or wash the dust from clothing before
leaving work.
Participate
in any health screenings that offers.
Do
not eat, drink or smoke in areas where silica dust is present. Wash your hands
and face before eating, drinking or smoking outside of the work area.
Not
at Risk? Think Again!
Don’t think silica dust is harmful?
Here’s what can happen down the road if you don’t take precautions today.
There are three stages of silicosis,
the disease caused by silica inhalation.
Chronic/Classic
Silicosis
Occurs
after 15 to 20 years of moderate to low exposure. Initially, the symptoms may
not be obvious, so the Occupational Health and Safety Administration (OSHA)
recommends that those who work around silica dust have a chest X-ray to
determine if they have any lung damage. As the disease progresses, you may have
shortness of breath when exercising. As the silicosis progresses, you may
experience fatigue, extreme shortness of breath, chest pain and respiratory
failure.
Accelerated
Silicosis
Occurs
after 5 to 10 years of high exposure. Symptoms include severe shortness of
breath, weakness and weight loss.
Acute
Silicosis
Occurs
only a few months and up to two years following extremely high exposure.
Symptoms include severe disabling shortness of breath, weakness and weight
loss. This form of silicosis typically leads to death.
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Examining and managing risk exposures is one of the keys to the long-term success for businesses of all sizes. However, when you work with partners and other parties such as contractors, renters, component suppliers and service providers, you may be held accountable for their actions or negligence. And because your regular risk management procedures and insurance policies generally don’t cover others, you could be found liable for huge losses. This is where contractual risk transfer can protect your business.
The best protection in these situations is to shift risk and
liability away from your business and onto other parties. Thankfully, you can
do this when you draft a formal business contract by including provisions,
clauses and other text that determines exactly who is liable for specific
scenarios and losses. This is generally referred to as contractual risk transfer and can include a wide range of provisions
on liability. For example, a business could agree to be responsible for losses
only when employees or customers are on the premises.
Protection and Risks
Because properly worded contracts are legally binding in court, they can help protect your business in the event of a loss or dispute. Additionally, contracts can contain insurance requirements, waivers and other types of risk transfer that give your business legal counsel or direct financial compensation. Although contractual risk transfer is an effective way to protect your bottom line when working with partners and other parties, the practice itself may expose your business to significant risks.
Many states have laws that require specific legal language
in order to make contractual risk transfer enforceable, and some states have
outlawed specific types of contractual risk transfer altogether.
This guide is meant to give a general overview of
contractual risk transfer, including summaries of how and when specific types
of risk transfer may be used. This guide should not be considered legal advice,
and you should contact legal counsel for advice before you agree to a contract
with other parties.
For more information on risk transfer and contracts, call GDI Insurance Agency, Inc. today 209-634-2929.
Legal Language Overview
Because contracts and all other legal documents may be read
by many different people, it’s essential for them to be written in a way that
ensures that they will be interpreted and enforced in a clear and consistent
way. For this reason, words and phrases inc1luded in contracts are often interpreted
literally, and their meaning can greatly differ from more informal, conversational
language.
For example, think about the definition of the word “should.” When a manager tells an employee that they “should” be in the office before a certain time every day, the employee has a general understanding that this is a job expectation. However, because the literal definition of “should” states that the action is only probable and not guaranteed, including “should” in a legal document could cause readers to interpret its meaning in a number of different ways. Instead, most legal documents use clearer language to outline expectations, such as “must”, “will” and “shall.”
Key Terms
Here’s an overview of key terms that are essential to
understanding contractual risk transfer.
Liability
The legal responsibility for a party’s acts or omissions. Legal proceedings involving liability focus on finding the party that was ultimately responsible for a loss, injury or other damage. Then, any relevant contracts are examined to see if any liability was transferred to another party, and if those risk transfer provisions are relevant to the situation.
It’s also important to note that courts often consider vicarious liability when investigating a case. Under this form of liability, a party can be responsible for a loss that they did not cause if they have a special legal relationship to the party who was ultimately at fault. For example, a person could sue an entire business if a single employee’s negligence leads to their injury.
Negligence
A failure to exercise the care toward an individual or situation that a normal, responsible person would take. Although negligence is accidental in nature, a negligent party can still be held responsible for a loss or damage. Most states have laws that prohibit or limit the transfer of liability that results from one party’s own negligence.
Because negligence can involve the relationships between
multiple parties’ actions and inactions, there are a few different types of
negligence with important distinctions:
Gross
negligence: An extreme form of negligence that is still accidental in
nature, but also shows a reckless disregard for the safety or lives of others.
Many contractual risk transfer provisions contain exclusions for gross
negligence.
Sole
negligence: Negligence that can be attributed entirely to a single person or party. Sole negligence is extremely
difficult to prove, because any involvement whatsoever by another party would
qualify as a separate type of negligence. Many states have outlawed contractual
provisions that contain sole negligence exclusions in order to protect parties
that don’t understand sole negligence and accept additional risk without their
knowledge.
Joint or contributory
negligence: A situation where multiple people or parties are simultaneously
negligent for a loss, injury or other damage. During a lawsuit, a court may
find that multiple parties were negligent and assign different amounts of
liability to each party. However, state laws concerning this form of negligence
vary greatly.
Diligence
The amount of reasonable care or attention that a normal, responsible person would take in any given situation. A party may attempt to avoid liability for a loss by proving that they were diligent and took reasonable steps to avoid damage or transfer responsibility for the situation to another reasonable person.
Idemnify
The act of one party agreeing to provide some form of
compensation for the loss, damage or liability of another party under one or
more specific circumstances. This is one of the most common and broadest forms
of contractual risk transfer, as the party that compensates for a loss takes on
some of the other party’s financial risk. Three additional terms are often used
when discussing this process:
Indemnity:
The actual compensation that’s exchanged when one party indemnifies
another. The form of compensation may vary depending on the specific wording
used in different indemnity clauses.
Indemnitor:
The party that promises compensation through an indemnity provision. This party
takes on additional risk by offering the reimbursement in a contract.
Indemnitee: The party that
will receive compensation through an indemnity provision. This party has
transferred part of their risk elsewhere by getting a promise of reimbursement
through the indemnity provision.
Hold Harmless
When used in a contract, the term hold harmless refers to
the act of one party protecting another party from losses and liability. Although
some experts believe that the terms indemnify and hold harmless can be used
interchangeably, not everyone agrees. Courts generally find that hold harmless
is a broader term that refers to protection against both liability and losses,
while indemnify only protects against losses by promising compensation after
damage has already occurred. However, both terms are often included in
indemnity provisions in order to offer more protection and avoid confusion.
Duty to Defend
The promise to provide for a legal defense or transfer funds to hire counsel. Many contracts include a duty to defend provision in which one party promises to accept responsibility for any costs or work related to lawsuits.
Insured Contract
A term that’s used to provide partial or full exceptions to the contractual liability exclusion in most commercial general liability (CGL) insurance policies. Most CGL policies don’t provide coverage for damage that comes from one party’s agreement to take on extra liability, since this extra risk wasn’t considered during the insurance underwriting process. However, if the extra liability was a part of a contract, an insurer may label the extra liability as part of an insured contract and provide coverage.
Subrogation
Subrogation is the legal ability of a person or group to use
the rights of another when resolving debt or an insurance claim. When talking
about contracts, subrogation usually refers to an insurance company that’s
trying to recover their losses from a loss that it paid out. For example, if an
insurance company pays for one of its policyholder’s losses, it can legally use
that person’s right to sue the at-fault party to try to recover the damages.
Waivers of subrogation are a common form of contractual risk transfer where the parties forming a contract deny this right to insurers. As a result, insurance premiums may go up.
The Common Types of Contractual Risk Transfer
Contracts are binding legal documents that outline the relationship between your business and another party, and the different sections included in a contract will detail how you operate together. In order to transfer liability from one party to another, contracts include dedicated sections—often called clauses or provisions— that describe the subject of risk and liability. Because contracts are a negotiated agreement, there are a number of ways to transfer liability during the drafting process. However, there are three main types of contractual risk transfer:
Indemnity provisions
Additional insured provisions
Waivers of subrogation
Each type of contractual risk transfer has unique advantages
and disadvantages, and you should examine each one to see what’s right for your
business. For example, many states have laws that limit some of the types of
contractual risk transfer, and some may be outlawed entirely.
When determining the type of risk transfer that’s best for
you, you should consider the following questions:
How can I establish the best working relationships
with others?
What types of risk transfer are most common in
my area and industry?
What type of risk transfer offers me the most
financial protection in this scenario?
Who will review my contract to ensure it’s both
legal and in my best interest?
In order to help you answer these questions, the following pages will detail the three main types of risk transfer and provide you with an overview of their advantages, disadvantages and more.
California’s Leader in Insurance and Risk Management
As one of the fastest growing agencies in California, GDI Insurance Agency, Inc. is able to provide its clients with the latest and greatest of what the insurance industry has to offer and much, much more.
We are headquartered in Turlock, CA, with locations across the heart of California’s Central Valley, Northern California and beyond to provide a local feel to the solutions and services we provide our clients. We pride ourselves on exceeding our client’s expectations in every interaction to make sure that our client’s know how much we value and appreciate their business. Contact us today 1-209-634-2929 for your comprehensive business insurance quote!
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