An administrative law judge of the U.S. Occupational Safety and Health Review Commission affirmed citations issued against a construction employer whose employees were photographed working on a site without fall protection and assessed total penalties of $5,600.

Webster, New York-based LM Sanderson Construction Inc. was working on a residential construction project in Rochester, New York, on April 7, 2016, when a compliance safety and health officer of the U.S. Occupational Safety and Health Administration drove past the construction site while on his way to another worksite and observed what he suspected to be a violation of fall protection standards, according to court documents. The officer stopped his car, took some photographs from the roadside, and then sought his supervisor’s permission to open an investigation, which he received later that day and formally started the investigation that resulted in a two-item serious citation with a proposed penalty of $2,800 for each citation item, according to the documents. 

The two employees on the makeshift scaffold platform being used on the site were not protected by personal fall arrest systems or guardrail systems, which the employer was aware of because Dave Sanderson, the vice president of the company, “was standing within arm’s reach of the platform when each of the employees was atop the platform,” the judge determined in affirming the citation. 

The employer failed to meet its burden in contending that literal compliance with the standard’s requirement was infeasible under the circumstances or that there was no feasible alternative method of protection, according to the judge’s ruling. 

The employer also argued that the violation was the result of unpreventable employee misconduct because one of the employees was a supervisor who failed to use fall protection despite his knowledge of safety policies requiring such usage. But the judge rejected that contention because the only evidence of any employee being disciplined for failing to comply with company safety rules was the reprimand the supervisor received for his conduct in this situation — the other employee was not disciplined for the violation, according to court documents. 

“This evidence of a single instance of either pre- or post-inspection discipline does not suffice to establish that LMS had been effectively enforcing its work rules prior to the inspection,” the judge stated in his ruling. 

The administrative law judge’s decision became a final order of the commission on Friday. 

Mr. Sanderson could not be immediately reached for comment.