Subcontractors, OSHA, and You
06/04/19 – The Occupational Safety and Health Administration (OSHA) has determined that everyone is responsible for safety under the current OSHA Field Operations Manual (FOM), “On multi-employer worksites, more than one employer may be cited for a hazardous condition that violates an OSHA standard.” (Multi-Employer Citation Policy). That is why it’s incredibly important to understand how OSHA determines responsibility of hazard control, because as a general contractor, the responsibility of the entire jobsite is yours. OSHA follows a two-step process to determine whether to cite more than one employer.
Determine whether the employer is a creating, exposing, correcting or controlling employer.
- A creating employer is an employer who caused the hazardous condition violating an OSHA regulation. Even if the employees exposed are those of another employer, the contractor who caused the problem can be cited.
- An exposing employer is an employer whose own employees are exposed to a particular hazard, or is an employer who knew of the hazardous condition and failed to take the steps to protect their employees.
- The correcting employer is an employer responsible for correcting a hazard on the same worksite as the exposing employer. This occurs when an employer is responsible for installing/maintaining a particular safety system or device.
- The controlling employer is an employer who has the power to correct or can require others to correct hazards. A controlling employer must exercise reasonable care to prevent/detect safety violations on the jobsite themselves.
If an employer falls into one of the above categories, they have obligations with respect to OSHA requirements and it must be determined if the employer’s actions were sufficient to meet those obligations.
General contractors tend to assume that a signed contract, which usually assigns all employee safety responsibilities to the subcontractor, covers all liabilities. However, there are several factors that OSHA considers when making a determination, and even if a contract spells out that a particular subcontractor is solely responsible, OSHA may not see it that way….even for hazards encountered only by the subcontractor’s employees.
Some contractors even unintentionally increase their OSHA liability exposure for subcontractor’s safety violations if they:
- Employ an incompetent subcontractor, maintain control of a subcontractor’s activities, or supervise work over the jobsite.
- Have substantial knowledge of applicable safety regulations and could reasonably detect violations.
- Know or have reason to believe that a subcontractor has prior OSHA citations or ineffective safety policies.
Any facility or contractor planning to use a subcontractor should develop a formal prequalification process with benchmarks that you establish as acceptable requirements to perform the work you are subbing out. The following criteria are good starting points for determination:
- The company’s experience modification rate (EMR)
- Think of this as a company’s safety report card
- Past work history
- Bonding issues/problems
- Previous OSHA citations
- OSHA 300 (no names) and 300A for past three years
- Applicable safety programs
- Fall protection, lock out tag out, confined space, etc.
- Substance abuse programs
Once the subcontractor has been chosen, employers should consider additional ways to address risks posed throughout the day was work unfolds. Provide leadership by setting positive examples and clearly communicate that safety will not be compromised for production.
When it comes to emphasizing jobsite safety:
- Conduct preconstruction meetings to discuss the safety issues/policies.
- Restate the importance of safety at each job meeting.
- Require subcontractors to conduct inspections, attend safety meetings, as well as comply with contractual safety standards.
- Advise subcontractors of noted safety violations and of the contractor’s intention to terminate the contract upon breaches of contract obligations.
Reactive steps should also be taken in order to prevent reoccurrences. Write up safety violations, back-charge for violations that the general contractor corrects, implement a progressive monetary penalty system for repeat violations, shut down work for noncompliance or dangerous work activities, and suspend or terminate the contract for repeated issues.
Managing subcontractors can seem like a liability nightmare, but protecting your company is as vital as protecting the employees. Select subcontractors who show that they value the importance of safety on and off the jobsite, and you won’t find yourself guessing who is responsible.