Who does OSHA turn to first when several contractors are on the job on a safety-questionable job site? If your business has any control over the work process, the Multi-employer worksite policy clarifies that the responsibility probably lies with you. Did you do everything possible to avoid an accident?
OSHA uses the policy to assess liability on a construction site where there are likely many different companies on many different contract levels. The four categories of employers are the creative entrepreneur, the exhibiting entrepreneur, the repairing entrepreneur and the controlling entrepreneur.
As the name suggests, the creative entrepreneur creates a danger resulting in an incident or an accident. The exhibiting contractor puts his employees in danger, whether they created the danger or not. The remedial contractor, who may or may not be the creative contractor, is responsible for remedying the security breach. Finally, the controlling contractor has contracts with and has authority over the contractors on the site.
“An exception can arise when a creative contractor has already demobilized from the site and the remediation of a hazard has been assigned to another entity,” said John Braun, CEO of consulting firm EHS Signature Safety.
He gives as an example a steel assembly company that left the site with boundary cables in poor condition but a concrete company was contractually obliged to maintain the cables.
“The controlling entrepreneur is the one who needs attention here,” Braun said. “If they don’t exercise sufficient control over their contractors, OSHA can and most likely will cite them for their inaction.”
The sufficient degree of control is certainly to be interpreted, he said.
“Control is one of the most contested points of clarification that I have seen in expert witness cases.”
What is the multi-employer worksite policy? Has the general contractor or construction manager performed sufficient inspections? Did they provide training or at least ensure that appropriate training was provided? Did they clearly communicate their expectations? Have they even prequalified their contractors?
“Questions like these will be taken into account in determining the degree of responsibility of the controlling contractor. You need to ask yourself if you are responsible, what can you do to ensure that the safety of your contractors is up to par.” Braun continued.
While creating, exposing, and remedying employers may have clear responsibilities for preventing risk, employer oversight standards are more confusing, said Stan Liang, health and safety consultant at Tetra Tech.
“But controlling employers also bear a higher responsibility for compliance, so it’s important to understand what the obligations of a controlling employer are.”
To determine whether a controlling employer is subject to citations under OSHA’s MECP, one must determine whether the employer’s actions were sufficient to meet its obligations. OSHA expects controlling employers to use “reasonable care” to prevent hazards, including workplace inspections, Liang noted.
“The frequency with which the employer should inspect the workplace is determined by many factors: the nature of the work being performed, the scope of the project, what the employer knows of the potential hazards and what the employer knows of the other employers’ safety practices at the site, ”he said.
“For example, if a subcontractor is known to have a history of frequent safety breaches, the controlling employer is expected to perform more frequent job site inspections.”
Failure to exercise due diligence to prevent security breaches could cause the controlling employer to receive an OSHA violation, even if they did not directly cause the danger, he stressed.
Ask the right questions
When it comes to best practices, it doesn’t matter what category of responsibility you find yourself in on the job site. Whether you are the general contractor or a subcontractor, there are steps you can take to improve your safety program.
According to Braun, managing contractors is “exponentially easier” if you hire contractors with a strong track record in security. It starts at the prequalification stage.
Requiring a contractor’s health and safety plan, OSHA logs, and an experience change rate is a good approach for the prequalification process, Braun said.
“Additionally, you can check the OSHA website to see if the contractor has incurred any fines and citations from OSHA.”
Make sure this information is reviewed by someone who knows what to look for, he said, adding that “not all incidents and citations are created the same.” The examiner must know the difference between a de minimus violation and a serious violation, must check the frequency and severity of a company’s incident files against its safety performance, for example.
“Also, if you know of other companies that have used these contractors in the past, find out about them,” Braun said.
Did they run safely? How did management support the safety program? Did the company appear to have a culture of safety? Did they use well-maintained equipment or old and damaged stuff?
“Try to get a big picture of the business rather than a one-off experience.”
Next, make sure the contractors and subcontractors you work with know what to expect from them. Even before work begins, there are opportunities to make this clear, Braun said. The tender documents should clearly state what you want and how they expect to fulfill their security responsibilities.
This will give the subcontractor enough time to price the equipment and personnel needed to properly perform the job on your job, he added.
“Once you’ve decided to award the offer to a company, the contract should also include what you expect from their security responsibilities. It goes beyond simply stating that they must meet OSHA requirements, ”Braun said.
Are there areas on the job site where going beyond OSHA will be necessary? Are there any disciplinary policies they should be aware of? What are the drug and alcohol testing requirements for the job?
“None of this should surprise your entrepreneur,” Braun said. “But if it does and you had it in the documents, then it’s on them.”
Finally, you must explicitly require all certification and training documents relevant to the project. For example, will they operate aerial work platforms? Obtain training records. Forklifts ? Obtain their licenses. Do you work on excavation sites? Do they have excavation training?
“Also have the name of your contractor – in writing – who will be his competent person and justify this designation by providing you with the background of that person,” he said.
“To think that this information will then reach the boots on the ground is optimistic at best,” he said. “Before workers enter the site, you need to make sure they are following an orientation that clearly states what you expect of them. “
According to Braun, this guidance should include safety requirements, disciplinary policies, drug and alcohol policies, and anything else you’ve covered at the contract level regarding the workforce.
“Feel free to hang prominent signs that emphasize more important points. If your focus is a checklist or a speech by a disinterested party, you are wasting an opportunity to set the tone for the project. . “
Never assume anything
Maintain a certain level of oversight. That doesn’t mean you have to supervise contractors and sub-contractors every minute of every day, Braun said. Periodic observation of the site is essential, he believes.
Notify the contractor, in writing, of any breaches and let them know when you expect it to be fixed, he suggested. Ask them to respond, in writing, when they address the issues and to verify it.
Take a test look at who uses the equipment and compare it to the records you have on file. Are contractors diligent in having their employees qualified to do what they are asked to do?
“The process of observing your contractors spans the life of the project,” he said.
A final note from Braun: “Don’t be a facilitator.”
A business that performs poorly from a security perspective will end up hurting or killing someone, he said.
“If a contractor refuses to come on board, the worst thing you can do is reinforce their unsafe behavior by giving them extra work. Make it clear that putting your workers at risk is unacceptable and that you will not participate. “
And remember that your main goal is to prevent everyone from getting hurt in your project.
“But if someone does, you want to be sure you’ve done everything you can to prevent it,” he added.
If you’re an employer controlling a job site, you’ll want to be careful about the subcontractors you hire, be intentional about the safety practices you apply on your job site, and perform frequent inspections, Liang concluded.
“Making sure your safety program prevents workplace hazards to avoid OSHA quotes can include many different actions including safety training, safety discussions with other employers in the workplace. site in advance and a clear system for reporting hazards. “
If you are a subcontractor at a site, make sure you meet all safety requirements and make reasonable efforts to prevent your employees from being exposed to danger, Liang said.
“While these aren’t hazards you created, you’ll also want to make sure you don’t create hazards for employees of other employers on the site.” CEG