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Risk Management

Remember Trenching and Excavation Safety!

June 13, 2024

Whether for replacing aging culverts or repairing or installing a water or sewer line, most workers in municipal road/highway/public works departments need to dig holes or trenches or perform some type of excavations. Once an area has been excavated, one or more employees often need to enter the hole to perform whatever work is required. While an employee’s focus is generally on the task at hand, the sides of an unsecured excavated area can be unstable and collapse unexpectedly, potentially resulting in entrapment, injury, or even suffocation. These hazards – and the OSHA regulations for preventing them – make it necessary for employers to provide appropriate safety equipment and training to all affected employees and for all employees working in or near an excavation worksite to closely adhere to established safety practices.  

Trenching and excavation operations create serious hazards that every employer should take seriously.

In addition to the moral and ethical reasons for adhering to excavation safety rules, municipalities need to know that VOSHA inspectors can stop and examine any suspicious looking excavation that they happen to pass. Thus, any employer that does excavation work can be subject to a VOSHA inspection and potential fines at a moment’s notice. VOSHA fines for unsafe excavations can run into the tens of thousands of dollars, creating a financial incentive that supplements the moral and ethical responsibility for each employer to provide a workplace that’s free from recognized safety and health hazards. 

Completing excavation work safely requires a number of skills, specialized equipment, and an understanding of what the regulations require. This article highlights some of the key requirements and also includes some PACIF guidance, based on our experience.  

We have listed some major requirements and best practices below to inform and/or remind our readers, in hopes that everyone will leverage this knowledge into safe excavation operations. For complete details on applicable regulatory requirements, refer to OSHA standards 1926.651 and 1926.652, which VOSHA has adopted verbatim. 

Trenching and excavation best practices and requirements include but are not limited to: 

  • Excavations must be overseen by a competent person. A competent person is one who has the knowledge and skills to evaluate and identify safety hazards and ensure the safe operation of the excavation process. That person must also have the authority to cease operations if uncontrolled hazards of any type are identified. 
  • Excavations that are four feet (4') or more in depth at any point must have means of egress that are within 25 feet (25') of employees. Ladders, stairs, or ramps may be used. Make sure ladders are rated for the weight of the employees using them.  
  • If the excavation has exposure to vehicular traffic, employees must wear appropriate Class II retroreflective garments and be protected by a properly designed and operated workzone, including traffic control if needed. Traffic and related vibrations also increase the risk for excavation collapse, which should be considered as part of evaluating excavation safety. 
  • Employees must be protected from excavated or other material (e.g., a spoils pile) and equipment that could pose a hazard by falling or rolling into the excavation. The best practice is to keep material at least two feet (2') away from the edge of the excavation. Heavy equipment, road traffic, etc. should be kept further away from the excavation to prevent accidental collapse. 
  • Unless the competent person is skilled in soil classification, all soil types should be considered as soil type C for the purpose of complying with excavation standards. Soil type C is the least stable soil type and therefore it requires the largest exposed opening when shielding or shoring systems are not used. It should be noted that soil that has been previously excavated is automatically classed as soil type C, as is any soil with evidence of water seepage or standing water. 
  • Any excavation that is five feet (5') deep or more at any point within the excavated area must be sloped and benched according to the soil type, or it must be properly shielded or shored. When using shielding systems, additional considerations include:  

- The system must be used in accordance with its engineered design. 

- It is permitted to excavate material as much as two feet (2') below the depth of the support system if the system is designed to resist the forces calculated for the full depth of the trench. The top of the trench box should be 18 inches (18") above grade. 

- Employees should not be in an excavation when shields or boxes are being installed, moved, or removed. When using gas-powered equipment or products that contain chemicals within the excavation, consider the potential for hazardous atmospheres to develop.  

- If shoring or shielding is not used, it is best to assume that soil type “C” exists and apply a slope or bench of 34 degrees (34°) or a run/rise ratio of 1.5:1. This will require significant enlargement of the excavation, e.g., a 34-foot (34') opening for a trench that is ten feet (10') deep and four feet (4') wide. 

- The open ends of trench boxes are often inappropriately left unprotected, thus subjecting employees who are in the excavation to soil collapse. Bulkheads should be used in these areas as needed to protect against this hazard. 

  • Trenching and excavation operations create serious hazards that every employer should take seriously. Employees should never enter an excavation that is unstable or deeper than five feet (5’) without adequately opening up the excavation or using appropriate shielding or shoring. Doing otherwise exposes employees to serious hazards and exposes the employer to serious fines.  

We encourage all VLCT members to get educated on how to perform excavations safely and exert safety discipline while performing these tasks. Our loss control staff is ready and willing to assist PACIF members with their education efforts and can meet with individual municipalities to answer questions about excavation practices. Additionally, Vermont Local Roads occasionally offers workshops on this topic. If you have questions, please reach out to your loss control consultant directly or contact us at losscontrol@vlct.org 

New Federal Rule Requires Municipal Website and Mobile App Accessibility (Updated)

The U.S. Department of Justice published its final rule updating regulations for Title II of the Americans with Disabilities Act (ADA). Title II requires state and local governments to make sure that their services, programs, and activities are accessible to people with disabilities. It applies to all services, programs, or activities that state and local governments offer online and through mobile apps, such as payment and parking apps to zoning regulations and maps. When websites and mobile apps are not accessible, they can create access barriers for people with disabilities. A Fact Sheet summarizing the rule is available on ADA.gov.
 

Who Must Follow This Rule?

Like the rest of Title II, the rule applies to all state and local governments as well as special purpose districts, Amtrak, and other commuter authorities. State and local governments that contract with other entities to provide public services for them (like non-profit organizations that run drug treatment programs on behalf of a state agency) also must make sure that their contractors follow Title II.
 

Highlights of the Rule's Requirements

The rule’s requirements for making web content and mobile apps accessible are highlighted below. The full rule explains these requirements in more detail. The Department of Justice also published a Fact Sheet on the Final Rule and A Small Entity Compliance Guide.

The technical standard for state and local governments’ web content and mobile apps is Web Content Accessibility Guidelines (WCAG) 2.1, Level AA.

WCAG does not outline specific actions that every website must take, rather it states what accessible websites should do. Level AA conformance means the Web page satisfies all the Level A and Level AA Success Criteria for the guideline, or a Level AA conforming alternate version is provided.

Web content and mobile apps usually need to meet the technical standard.

The rule applies to web content that a state or local government provides or makes available. This includes when the government has an arrangement with someone else who provides or makes available web content for them.

There are exceptions for meeting the standard.

A summary of the exceptions is below. The first four exceptions have criteria that must be met to qualify for the exception.

  • Archived web content.
  • Preexisting conventional electronic documents.
  • Content posted by a third party. (Think public comments, not hiring someone for posting.)
  • Individualized, password-protected electronic documents.
  • Preexisting social media posts.

There are several other exceptions. State and local governments have a burden of proof to use them. It’s unlikely Vermont municipalities would pursue them.
 

Compliance Dates

Public entities with populations under 50,000               April 24, 2027

Special district governments                                              April 24, 2027

Public entities with populations of 50,000 or more       April 24, 2026

If the governmental entity serves multiple communities, it must total the population of all the communities. This means a police department that has contracts to serve other municipalities might have an earlier compliance date than its municipality.
 

To Learn More, Contact ...

If you have questions about this rule or the ADA, you can call the Department of Justice’s ADA Information Line.

Another source of information is the New England ADA Center. It provides ADA technical assistance to businesses, state and local governments, and individuals with disabilities. Phone: 1-800-949-4232 (voice and TTY), 1-617-482-8099 (fax), or ADAinfo@IHCDesign.org.
 

What Should Municipalities Do Now?

Create policies on how you will make sure that your web content and mobile apps are accessible.

Policies could identify actions your municipality will take to start complying with the rule and to stay compliant with it in the future. Topics in the policy might include:

  • Explain what appointed and elected officials and staff should do to make sure the content they post is accessible.
  • Identify a person to coordinate the municipality's effort to comply with the rule and to answer questions from officials and staff.
  • Describe how officials and staff will regularly test the municipality's web content and mobile apps for accessibility compliance.
  • Explain the steps officials and staff will take if a person with a disability reports that web content or mobile apps are not accessible.
  • Explain the steps officials and staff will take if a person with a disability asks them to make accessible content that falls under an exception to the rule.

Create processes for people to make accessibility request and to report accessibility issues.

You can set up processes to make it easy for people to get in touch with your municipality about accessibility issues. Some examples of processes include:

  • Providing an email address, accessible link, accessible web page, or other accessible way for people to let your municipality know if there are any accessibility issues with its web content or mobile apps.
  • Letting members of the public know, in prominent places on your website, how they can ask your municipality to make content accessible when the content falls within an exception to this rule.

Train your staff and elected and appointed officials to produce documents that are compliant with the standard.

Most municipal websites are developed by professional designers. Even if the product they deliver complies with the new standard, changes your municipality makes, such as adding new pages and posting documents and pictures, also need to comply for the website to stay compliant with the standard. Learn about free online training resources in VLCT’s Improve Accessibility Toolkit.

VLCT will host an ADA Basics webinar on web accessibility in October 2024. The webinar will discuss the rule and how it applies to municipalities, help you consider how the standard might relate to your website and mobile apps, and strategize with you about actions you can and should take to help ensure you meet the compliance deadline.

Ask your website or app vendor whether your current product met a WACG standard/guideline when it was new, and if so, what standard/guideline.

Most websites and mobile apps aren’t designed to meet any WACG guideline unless the customer requests it. The municipality, not the product designer, is held accountable for ADA compliance.

Add the technical standard to your Request for Proposal requirements for new websites and mobile apps.

Ask vendors whether they will provide an Accessibility Conformance Report (ACR), such as a VPAT® (Voluntary Product Accessibility Template) and ask them to demonstrate or talk about accessibility features. An ACR is a document that explains how information and communication technology (ICT) products such as software, hardware, electronic content, and support documentation meet a requested standard. The vendor must have tested their product against the required standard to complete an ACR. 

Ask residents who have disabilities about challenges they have with your website or mobile apps.

Their experiences can help you prioritize fixes. A major challenge for most websites is the inability to use a screen reader with the site.

Assess your current website’s compliance with the new DOJ standard.

Use No-Cost Tools: Use free tools to get you started or hire a professional to conduct a WCAG audit. The World Wide Web Consortium (W3C) maintains an extensive list of web accessibility evaluation tools. Recruit volunteers to use the tool on your website. This might be a great way to engage tech-savvy individuals who want to increase their skills. Automated tools detect approximately 30 percent (~30%) of WCAG issues.

Use For-Fee Services: If you hire a professional to conduct a WCAG audit, ask for the auditor’s accessibility credentials and sample reporting. You want an in-depth WCAG audit report that identifies what and where WCAG violations are and how to fix them. Use professional quotes to determine what is more cost effective: auditing and fixing your website or building a new website. Web research suggests the price of a manual audit varies depending on the complexity of the website. You might start by auditing and fixing key pages first, such as the home page and frequently accessed pages. 

Nearly one in four Vermonters have a documented disability (Vermont Dept. of Health, 2019). This could mean that one quarter of your residents need extra help in successfully participating in civic life. There are many things you can do to make municipal services easier for people with disabilities to access. Committing to web accessibility isn’t just the law: it affirms your commitment to diversity, equity, and inclusion.


Note: This article was adapted from a Fact Sheet on the Final Rule and A Small Entity Compliance Guide published by the Department of Justice on ADA.gov. ADA.gov includes a wealth of information and resources to help people with disabilities, state and local governments, and businesses find answers to common questions and common legal documents so they can understand their rights and responsibilities under the ADA.

Publication Date
05/23/2024

PACIF Rate Update and a Look Forward

December 05, 2023

Those of you who are PACIF members should have received your municipality’s 2024 PACIF renewal invoice during the week of November 27. Please keep in mind that PACIF invoices are now sent quarterly, so the amounts listed on the current invoice are one-quarter of the annual contribution and one-quarter of the applicable contribution credit. If your organization has a volunteer fire department, rescue squad, or other entity that has the workers’ compensation in assigned risk, one-quarter of that amount is also included on the invoice. Along with the invoice are Property Casualty (PC) and Workers’ Compensation (WC) Breakdown reports. Note that payroll and contribution amounts for the assigned risk program do not appear on the 2024 WC Breakdown of Coverage Costs sheet because assigned risk is separate from PACIF workers’ compensation payroll. Please direct any questions about the invoices to VLCT’s Finance staff. 

As was mentioned in an October 31 email from Joe Damiata, VLCT’s Director of Risk Management Services, most members did see price increases this year. In some cases, the increases were substantive. While each member’s own loss experience plays a significant role in their overall annual contribution, PACIF did increase property rates by 8.7 percent. Additionally, member property values increased to ensure that the scheduled values continue to reflect the reconstruction value of structures – rather than an actual cash value  which may appear on a lister card. The combination of these factors led to a significant increase in the cost of most members’ property coverage. We also noticed that many members increased their estimated renewal payrolls more than in past years. Such increases in payrolls generally translate into higher workers’ compensation contributions because rating is based on estimated payroll. The 1.6 percent rate decrease in overall rates for workers’ compensation did help to temper price increases for that line of coverage. 

The primary drivers of the increased rates were higher reinsurance costs that PACIF has to pay to manage its own risk. Both property and general liability reinsurance pricing was adversely affected by external market trends, such as climate change for property and nuclear verdicts for general liability. The July flood event also had a significant effect on the cost of property reinsurance. 

However, all PACIF members need to keep in mind that they themselves play an important role in controlling coverage costs. To the extent that each member manages their own risk and controls claims, they also control their own loss experience rating. Beyond that, because PACIF is a risk-sharing pool, the more members that take steps to manage their municipality’s risk, the better the results are for the entire risk-sharing pool. Everyone’s efforts can help control the future cost of coverage. 

Key ways to manage your municipality’s risk include (but are not limited to): 

  • Take full advantage of member programs such as PACIF grants and scholarships, EPL referrals, law enforcement consultation, contract review service, etc. 
  • Use sound contracts and agreements that limit risk to the municipality when engaging with other entities. Make sure contractual language requires the municipality be added as an additional insured on external vendor’s general liability policies. 
  • Work closely with your loss control consultant to keep your employees safe, keep your facilities in good operating condition, and limit liability risk within municipal operations. For members with a higher number of claims, these consultants can analyze the loss data and develop specific risk management recommendations that, if implemented, can improve long-term loss performance. Contact your consultant directly or via email at losscontrol@vlct.org for assistance.  
  • Keep your employees trained and current on relevant safety and risk management topics with PACIF Learn (our learning management system) and PACIF loss control consultants. 
  • Evaluate risk to flood exposed buildings and develop risk mitigation or hardening strategies. Such capital improvements may even be eligible for a PACIF Grant. 
  • Always feel free to ask us questions when risk is a concern. If you don’t know who to speak with, our receptionist will make sure your request finds its target! 

Members that had flood losses this year should note that those claim values were not included in the loss experience and pricing for 2024. Instead, they will affect the 2025 renewal. Members can discuss how those claims might affect next year’s renewal by contacting a member of the underwriting team at underwriting@vlct.org.  

While 2023 has been a challenging year on many fronts, the PACIF team looks forward to working with you all to improve your risk management and safety practices, answer your questions, and assist you in any way that we can. Above all, we are here to serve you. 

Improve Accessibility Toolkit

According to the Centers for Disease Control and Prevention, up to 1 in 4 adults (24%) in Vermont have some type of disability.  The most common disability types are related to mobility and cognition.

About the Americans with Disabilities Act and the Rehabilitation Act

The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against people with disabilities in everyday activities. The ADA prohibits discrimination based on disability just as other civil rights laws prohibit discrimination based on race, color, sex, national origin, age, and religion. It guarantees that people with disabilities have the same opportunities as everyone else to enjoy employment opportunities, purchase goods and services, and participate in state and local government programs. 

The Rehabilitation Act prohibits discrimination based on disability in programs conducted by federal agencies, in programs receiving federal financial assistance (i.e., grants and contracts), in federal employment, and in the employment practices of federal contractors.

Visit the ADA.gov website for an overview of federal civil rights laws and answers to common questions.

For questions about the ADA, call the U.S. Department of Justice ADA Information Line at 800-514-0301 (voice) or 1-833-610-1264 (TTY). Accessibility specialists are available to answer questions from individuals, businesses, and state or local governments. All calls are confidential.

About the Architectural Barriers Act (ABA)

The Architectural Barriers Act (ABA) applies to facilities designed, built, altered, or leased with federal funds. Passed in 1968, the ABA is one of the first laws to address access to the built environment. The law applies to federal buildings. It also covers non-federal facilities built or altered with federal grants or loans. Coverage is limited to those funding programs that give the federal agency awarding grants or loans the authority to establish facility standards.

While the ADA and ABA are very similar, there are also some differences between what the ABA standard requires for accessibility and what the ADA standard requires. According to the U.S. Access Board, the ABA and ADA Standards are different in these areas,: modifications and waivers (§F103), work areas, additions (§F202.2), leased facilities (§F202.6), exceptions for vertical access/elevators (§F206.2.3), emergency transportable housing (§F233, §809), and outdoor developed areas (§F244 - §F248, §1011 – §1019). The ABA is more restrictive than the ADA for some requirements. 

When reviewing federal funded grant agreements, it is advisable to pay attention to the grant conditions as to whether the ABA or other accessibility requirements apply. USDA Rural Development uses ABA for its Community Facilities program, whereas the Department of Transportation and the Department of Justice have provisions in their specific ADA Standards that are not found in ABA Standards.

Visit the U.S. Access Board’s Architectural Barriers Act website for information about ABA accessibility standards. The Guide to the ABA Accessibility Standards explains requirements, recommends best practices, and provides animations to explain some concepts.

For questions about the ABA Standards, contact the U.S. Access Board at 202-272-0080 or ta@access-baord.gov. Accessibility specialists are available to answer questions.

About the Vermont Access Rules

Vermont law has required that new construction, additions, and alterations in public buildings be accessible to people with disabilities since 1977. In some cases, Vermont law exceeds the requirements of the ADA. Vermont law is codified at 20 V.S.A. Chapter 174: Accessibility Standards for Public Buildings and Parking

The Vermont Access Board adopts rules on technical requirements for accessibility to public buildings. The Board also has Legislative authority to hear and grant variances from provisions of Vermont Rules. The Vermont Access Rules are available from the Division of Fire Safety, which enforces the Rules.

Disclaimer: Information contained in this toolkit is intended only to provide an overview, not legal advice.

  • Information about the Americans with Disabilities Act and the Rehabilitation Act is from the Guide to Disability Rights Law. Readers can learn more about the full requirements of these laws on the ADA website.
  • Information about the Architectural Barriers Act is from the U.S. Access Board. Readers can learn more about the full requirements of these laws on the Access Board’s ABA website.
  • Information about Vermont’s accessibility law is from the Division of Fire Safety. Readers can learn more about the full requirements of Vermont laws on the Division’s ADA and Accessibility website.
Publication Date
11/13/2023

Reasonable Suspicion Testing Training

This session will help fulfill the DOT 49 CFR §382.603 minimum training requirement that all persons designated to supervise commercial motor vehicle operators must receive training that consists of 60 minutes on alcohol misuse and 60 minutes on controlled substance use. Attendees will learn 

• how alcohol and controlled substances affect the human body 
• practical ways to approach drivers who are suspected to be under the influence 
• the importance of documentation in complying with these federal regulations

This training is a federal requirement for anyone who supervises or manages commercial motor vehicle operators. This includes Selectboards, Town Managers, and Road Foremen. PACIF recommends that more than one person at each municipality receive this training. First time attendees and anyone seeking a “refresher” are welcome. 


Recorded sessions reflect current applications of the law at the time of the recording and may expire at any time if the information becomes out of date.   Check out our other upcoming events here: Training & Events.

Board/Committee Meeting Date
Publication Date
12/30/2022