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Avoiding OSHA Liability for Subcontractor Violations

By December 19, 2013No Comments

With the change to the OSHA fall protection requirements in June 2010 and the reduction in commercial construction in general, OSHA inspectors seem to have taken a greater interest in residential jobsites. OSHA health and safety rules generally apply to the relationship between employer and employee. However, several of our clients have been cited as the general contractor on the site for the safety violations of a subcontractor. Understanding the rules and taking the right steps to protect yourself will keep you from being one of those unfortunate generals.

Under its Multi-Employer Citation policy, OSHA has the ability to cite and fine the Creating Employer (the employer that created the violation), the Exposing Employer (any7 employer whose employees were exposed to the violation), the Correcting Employer (any employer responsible for correcting the violation on the jobsite), and the Controlling Employer (any employer responsible for controlling the work on the jobsite. A 2009 Eighth Circuit Court of Appeals case made it clear that OSHA has the authority to cite general contractors for hazards created on their construction sites by subcontractors. (Solis v. Summit Contractors, Inc., No. 07-2191m 8th Cir. Feb. 26, 2009).

To determine liability for safety violations on a multi-employer jobsite, OSHA follows a two step analysis. The first step is to determine whether the employer meets the requirements to be one of the four employer types with potential accountability for the violation. It is possible that an employer could be determined to have liability as more than one employer type. If it is determined that employer liability exists, the second step is to determine if the employer’s actions were sufficient to meet the obligations of that type of employer.

This article is focused on avoiding liability as a general for the violations of a sub, therefore the information provided here will only consider the requirements and obligations of a Controlling Employer. The reader with questions concerning the other three employer types should contact their legal advisor or OSHA consultant.

Step one defines a Controlling Employer as one with general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.

The obligation required by OSHA of a Controlling Employer is to exercise reasonable care to prevent and detect violations on the site. Though lower than the standard to which an employer is held with respect to its own employees, nonetheless the Controlling Employer does have an obligation to provide a safe worksite. Because the obligation is to exercise reasonable care, it is important to understand the requirements of that standard.

There are five factors considered by OSHA when determining whether reasonable care was exercised. The first is the scale of the project. The second factor is the nature and pace of the work, including how frequently the hazardous conditions change. The third factor evaluated by OSHA is how much the Controlling Employer knows about the safety history and expertise of the employer. Fourth, the Controlling Employer has an obligation to inspect the jobsite more frequently if the employer has a history of non-compliance or at the beginning of the project if the employer’s history is unknown. Finally, the Controlling Inspector is expected to be familiar with the other employer’s safety and health policies and the effectiveness of its implementation of those policies and adjust its inspection frequency accordingly.

When evaluating reasonable care, OSHA will consider whether the Controlling Employer conducted periodic inspections with the frequency called for by its knowledge of the other employer, whether it implemented an effective system for promptly correcting hazards, and whether the Controlling Employer enforces the other employer’s compliance with safety and health requirements with an effective, graduated system of enforcement and follow-up inspections.

It was noted earlier that there are two types of Controlling Employer. The first type is established where control over safety and health on the jobsite is by contract. In this instance, the employer must be able to prevent or correct a violation or to require another employer to prevent or correct the violation. Therefore, if the documents addressing general/subcontractor responsibilities are silent as to the general’s authority as related to safety practices, then the general cannot be a Controlling Employer.

Before removing safety responsibility from your documents as a strategy to avoid designation as a Controlling Employer, the second type of Controlling Employer arises where the employer has broad responsibility at the site involving almost all aspects of the job, so much so that its authority necessarily includes safety. Examples of the responsibilities considered broad enough to create a Controlling Employer determination include the authority to resolve disputes between subcontractors, set schedules, and determine construction sequencing. This looks eerily similar to the typical responsibilities that a general contractor has for its jobsite.

The good news in the Multi-Employer Citation Policy of OSHA is that it is not certain that a general contractor will be cited for a safety violation perpetrated by a sub on its jobsite. First, the general must be determined to be a Controlling Employer. This does appear to be a fairly low bar for OSHA to meet. But, second, by exercising care in the selection of subcontractors and supervising the jobsite appropriately in consideration of the safety record of the subs, a Controlling Employer can be determined to have fulfilled its supervisory obligation even if a safety violation occurs.

It is common on commercial jobsites for the general contractor to keep a project manager on the site. Residential projects are commonly of short duration and commonly don’t provide sufficient funding to support such on-site supervision. In this situation, the residential general contractor is well advised to keep a log of the frequency and duration of site visits and the safety practices and conditions observed. Such records may be the difference between incurring a citation for the safety violation of a subcontractor and avoiding such liability.

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