ConstructionPro Week, Volume: Construction Advisor Today - Issue: 125 - 09/16/2011

Who Should Be Responsible for Job Site Safety?

Construction contracts frequently contain boilerplate language where the contractor assures the project owner that all applicable federal, state and local regulations, including safety regulations, will be followed at the job site. Does this mean the contractor assumes responsibility for the on-site safety practices of its subcontractors? That was the contention in a recent case.

 

An injured employee of a subcontractor, precluded by worker’s compensation law from suing his own employer, sued the prime contractor for failing to impose or enforce safety precautions at the site. The injured worker relied – unsuccessfully, as it turned out – on broad language in the prime contract. The argument ignored the traditional division of responsibility on construction sites where each trade establishes and enforces safety procedures for its own employees.

 

What is your opinion on this issue? Should general contractors or construction managers, given their comprehensive authority at the job site, be responsible for imposing and enforcing uniform minimum safety practices? Or should that responsibility rest solely with the trade contractors who are most familiar with their tasks, their equipment and the safety issues that follow. I welcome your comments.

 

Featured in Next Week’s Construction Claims Advisor:

  • Liquidated Damages Include Agency’s Salaried Personnel Costs
  • Contractor Failed to Reverse Negative Performance Evaluation
  • Public Works Contract Bound Contractor to Union Labor Agreement

 

 

Comments

That is an intersting question. As an architect, I am responsible ultimately for the conduct and expertise of my consultants. I think the GC would have at least a supervisoral role as he is the only entity that has comprehensiv control of site. If there is a site safety issue, we as architects must report it to the GC as he has been defined as the authority in site safety.

Most Federal projects already require that the prime is required to have and enforce a safety program on the jobsite. Often in the specifications the prime is required to have a stand alone with no other duties, a site safety officer to enforce safety guidelines.

As an Engineer, we too share responsibility, however if the GC has not enforced, protected or prevented to ensure a safe site for all those that enter, we may have a different need. Much less to argue over the idea that individuals should be versed in the specific GC's safety policy before site access.

Let's face it, contracts are written to avoid responsibility, not to encourage it. The GC should share responsibility in all accidents since they are ultimately in charge of everything that occurs on their job site. Leadership starts for the top.

As a sub-contractor we instruct our employees that it is their responsibility to be aware of there surroundings on each job site and to assess whether or not it is a safe place to work. If they see any situation they feel is unsafe or they see something they know is a safety hazard or OSHA infraction they are to contact there supervisor and report it. In addition we empower them to refuse to work in unsafe conditions as well. This has led to us leaving jobsites because of missing guardrails on multiple story projects as well as miss handling of asbestos removal. In beginning it has caused tension with the contractor, but in all cases once the problems are resolved we are thanked for helping to create a safer work place and our employees know they are valued by the people they work with. No job we do is worth the risk of someone not going home tonight in the same condition they left it in the morning

Dave Flemming
Construction RME

 

But what about when all the main trades are each Prime Contractors, which is becoming more common. We are currently the on a project where the general trades, concrete, steel, masonry, plumbing, HVAC, fire protection, electrical and structural steel are ALL prime contractors on the project. Does this mean the construction manager takes ultimate over all responsibility? All trades are responsible for assuring their work is performed in a safe manner, of course, but who is the over all driving entity to enforce a comprehensive site safety program? I would say whoever the contractors are submitting their "Tool Box Talks" or weekly safety meeting minutes to. In this particular case, it is the Construction Manager, who has a safety representative on site at least once a week and who distributes that individual's safety review of the jobsite at the weekly meetings.

Because the GC often takes the lead with site safety by way of hosting safety meetings and tracking injuries, they could ultimately be held responsible. Because the GC's superintendent is often tasked with policing the site (i.e looking for non-conforming ladders, extension cords, etc.), the culture on jobsites tends to be geared towards this scenario. However, without knowing all of the facts, I think that any situation needs to be looked at on a case by case basis because the specifics of this case may have ultimately pointed to the individual's employer.

In my opinion, I would think it should be a master meeting and then broken down into each specialty trade since they know more about their individual tools, materials and safety precautions. It might take a little bit more time, but weil are talkimg about life and death situations on our hands.

Both from a legal and practical standpoint the tradesperson's direct employer must be responsible for the safety of their employees for what are obvious reasons. The general contractor's role is to promote and encourage jobsite safety via safety meetings, postings, record keeping,vigilance, removal of subcontractors for unsafe practices, etc. however in this role the general contractor should not be held accountable if a subcontractor's worker is injured despite these efforts.

The contract between the Owner and Contractor calls for the GC to provide safety on the job site. Granted, everyone should do their part, but ultimately the GC is in charge and should bear some responsibility. That's where the buck stops. What if three different subs got injured because the scaffolding, installed by another sub's sub, (that the superintendent used everyday)gave way because a ground was disturbed during excavations weeks ago?

These new delivery systems are really causing problems of relying on history of responsibilities. The CD documents (not construction documents) but Concenses Documents have the Owner, Architect, and Owner signing the same contract. That must be really messing up case law. The CD set of documents have come out of the large contractors tying to destroy case law. I worked a trobuble shooting consulting problem in which the architect and the contractor were on the same insurance. The architect stayed away because he did not know if his joint insurance would cover him.
H. Maynard Blumer FAIA, FCSI, Consulting Architect retired

This is the law in nearly every state. If the GC is in position to control (and even if they aren't in some instances), they will be held to "control" the jobsite and so responsible for the acts of their subcontractors and suppliers (and their employees). Recent OSHA case law has determined that, even if the GC expressly disclaims such responsibility or authority, per OSHA they may still be held repsonsible for fines and violations under the so-called "general duty" clause. Basically, in most states,the GC is going to be stuck with this issue, so they may as well work proactively to promote safety and control the subs' workers.

Personally, I think the comments that "GC should be responsible because they are in charge" are neither fair nor realistic given the complexities of modern-day construction sites. What happens if you tell a roofer, wear your harness, he puts the harness on in front of you and then goes up on the roof and does not tie the harness clip off to the safety line--how is that the GC's responsibiity? However, it is generally the law that they are held responsible, so they may as well try to control the safety as best they can.

I believe that everyone is missing the point here. It is a matter of workers compensations laws that are at question. If an injured employee of a subcontractor is able to file suit against the GC of a project, then the whole concept of how workers compensation laws are supposed to work is undermined. The laws are meant to protect the employee by paying for his or her injury. They are also meant to protect the employer from lawsuits.

The goal here should be to keep workers safe. I would like to make a comment about public construction jobs. Down here in Florida, the Department of Transportation constructs most roadway projects under full time inspection. Their inspectors are in a perfect position to monitor work site safety, including OSHA violations, yet they do not because of the potential legal consequences of "taking responsibility" for worker safety. (Somewhat paradoxically, they do monitor work zone traffic control device set-up such as cones, signs and barricades). In my mind it is morally wrong to have these inspectors "turn a blind eye".

In my neck of the woods, the consultants (of which I am only one) typically write and/or approve contracts that have 2 main points:
1. That no worker can be forced to work in unsafe conditions, and cannot be terminated for refusing to work unsafe - this is also the law in T & T;
2. That the prime contractor must submit a site specific safety plan, employ full time safety officer(s), and must monitor the safety programs of their subs to ensure that they have a safety program, that it is being implemented, and that it meets all local regulations.
Additionally, we as consultants retain the right to immediately stop all work in a work or trade area if it is an IDLH (immediate danger to life and health).
What I am getting at is safety is a shared responsibility, but the prime contractor is required to take the lead (it is HIS project, after all). Only when deficiencies are observed should the consultant flex his muscles.
I will admit that it does not always work like this (in fact, more often than not it does not work like this and is a struggle) but this is the general idea behind the approach that my team usually takes.

The foreman of the crew. It's his or her job!!!

I Know A constructon Manager that oversees Job sites as part of engineering firms who has a method on job safety. He causually mentions at a job meeting to the contractor that he has invited OSHA to send a n inspector to the site to look it over and make suggestions. He says this generally results in a very quick clean up of problem areas. remember any citizen can make a complaint to OSHA.

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