Aaron Wissen, CHST

October 2015

OSHA has determined that everyone is responsible for safety.  That is why it’s incredibly important to understand how OSHA determines responsibility of hazard control.   As a general contractor, the responsibility of the entire jobsite is yours.  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).  A two-step process is then followed to determine whether more than one employer is to be cited.

Step One:  Determine whether the employer is a creating, exposing, correcting or controlling employer.  

  • A creating employer is the employer who has 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 whose own employees are exposed to a particular hazard, knew of the hazardous condition and failed to take the steps to protect its employees.  
  • The correcting employer is who is 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 the employer who has the power to correct or can require others to correct them.  A controlling employer must exercise reasonable care to prevent/detect safety violations on the jobsite.

Step Two:  If the 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 its subcontractor 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.

In the incident mentioned above, did the general contractor assess whether the electrical company had the knowledge, training or policies/procedures in place to enter a confined space?  Did the general contractor know a confined space had been entered?  Or did the facility simply select the electrical contractor with the lowest bid, disregarding any safety records?  Any facility or contractor planning to use a subcontractor should develop a formal prequalification process.  Have benchmarks that you establish as acceptable 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 have to find yourself guessing who is responsible.