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Practical Subcontractor Safety Management

The industry has become even more sophisticated in managing contractors, but as long as humans are involved, errors will occur. Many construction cases involve OSHA citations based on another contractor’s alleged violations.

These errors aren’t limited to small second and third-tier subcontractors. Errors regularly occur by mega-contractors on a multi-employer site. So the key to effective contractor management is to never assume the problem is whipped.

OSHA’s multi-employer site citation policy says:

  1. Regardless of a contractor’s role on site, it has a non-transferable duty to protect its own employees, even if it didn’t create the hazard.
  1. The general contractor, construction manager or an owners’ representative on the project may be termed by OSHA as a controlling contractor, which has a less extensive duty, but at least some duty, to monitor and take steps to ensure other contractors onsite adhere to OSHA standards.
  1. OSHA may cite an employer if the contractor created the hazard, such as not providing guard rails or scaffolding, or if it had a responsibility to correct a hazard.
  1. OSHA rarely cites only one employer on a multi-employer site.

Where Problems Arise

Problem one occurs because site management forgets rules one through four. The job’s safety planning and ongoing management doesn’t consider the effects of other contractors. Problem two arises because construction contracts often mishandle or even harm site coordination. Boilerplate language and provisions are used so often that they provide no practical guidance. The provisions do not represent the realities of the job or provide actual guidance for managing subcontractors.

Contract language may impose more safety oversight responsibilities on a general contractor than they realize until OSHA asks why the employer wasn’t doing certain inspections or providing safety assistance to another contractor “as set out in the contract.” As to OSHA, if a contract provision supports its case, the agency will argue that the contract is a sacred bible and faithfully followed. If OSHA dislikes a provision, it will switch arguments and cheerfully claim that the language is boilerplate and “no one follows these things.”

While contractors may understand that their company has responsibilities toward other contractors onsite, do superintendents and rank-and-file workers know this? Are superintendents trained to understand both the extent of and the limitations on their oversight role with regard to specialized subcontractors, such as electrical, mechanical, demolition and erection? Owners’ representatives or general contractors with no personnel self-performing work must be certain their inspectors, project managers and assistant superintendents know not to place themselves at risk and know what to do if they observe unsafe behavior by another contractor onsite.

Site Management May Need a Change in How It Looks at Subcontractors and Safety

A fatality, serious injury or disruptive accident will subject a company to legal exposure, delays, costs and harm to reputation even if another contractor made the error. A company is not supposed to interfere with the means and methods followed by other contractors. Nevertheless, it does have to take steps to determine what its role is in insuring that its subcontractors do not harm employees or violate OSHA standards. A contractor cannot write a contract saying it has nothing to do with other contractors’ safety efforts.

Recommendations for Rational SubContractor Management

  1. Consider OSHA’s multi-employer citation policy, but do not let that policy dictate the approach to site safety. Do what is necessary to prevent problems.
  2. Focus first on prequalification efforts. Look beyond injury and illness rates and past OSHA violations. Look for the policies and procedures that allow the company to safely perform jobs.
  3. Contractually require subcontractors to prepare “site-specific” safety programs (no boilerplate plans) and to guarantee in writing that they will provide site-specific training to even experienced journeymen.
  4. Company responsibility rises as it gets more involved in preparing a subcontractor’s safety programs or in providing training. It’s best that the subcontractor do so itself.
  5. However, subcontractors may be small and unsophisticated. State in writing that the company is not taking on the responsibility to guarantee the legality of their policies or training, even with shared programs and materials. Put in writing that “these materials are followed by our company. The subcontractor is responsible for determining what policies and training are needed, but these materials are an example of what we have found to be the minimum we’ll accept.”
  6. It’s not unusual to provide mandatory safety rules or to require a subcontractor’s employees to attend a safety orientation.
  7. If all subcontractors can afford the costs, select a solid third-party safety provider to work with subcontractors onsite.
  8. Do not write anything that suggests the company is taking on the responsibility to inspect and oversee a subcontractor’s safety efforts.
  9. Develop an inspection routine for the site.
  10. Unless it’s an immediate threat, raise concerns with the subcontractor’s supervision, not its employees, and document the contact and follow-up. It’s better to have to explain numerous instances of catching problems and requiring fixes than to appear lackadaisical.
  11. Before the job, ensure that the company has the power to stop work or demand an employee be sent home. This can be a problem when the owner is contracting directly with contractors.
  12. Mandate adequate supervisory staffing.
  13. Require all second and third-tier subcontractors to be reported to the company, along with documentation that the hiring subcontractor ensured that these subcontractors’ employees were adequately trained and supervised.
  14. Maintain records of the safety, quality and supervision of subcontractors and if the same subcontractors are regularly used, maintain records on individual superintendents and even foreman.
  15. When doing stick-built apartments and multi-use projects, be especially vigilant in monitoring fall protection and electrical compliance for subcontractors more accustomed to residential work.

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