3 Things You Can Do to Manage Your Contractor’s Safety
You may not want to hear this, but in most situations, you have responsibilities to your contractors and subcontractors when it comes to safety. There are an awful lot of nuances to this, of course, between indemnifications, contractually designated responsibilities, and more, but if you exhibit any control over the work process, OSHA would more than likely try to hold you responsible under the Multi-Employer Worksite Policy. For this article, let’s assume that you’ve determined you are responsible for your contractors and subcontractors after doing your due diligence.
What is the Multi-Employer Worksite Policy?The Multi-Employer Worksite Policy is a policy that OSHA uses to assess responsibility in places like a construction site where there are likely many different companies at many different contract levels. The four categories are Creating Contractor, Exposing Contractor, Fixing Contractor, and Controlling Contractor.
- The Creating Contractor is a contractor on the site that created some hazard (i.e., dug an excavation and left the hole unprotected, resulting in an incident).
- The Exposing Contractor would be a contractor on-site that put their employees in harm’s way even if they didn’t create the hazard (i.e., an electrician that then sends their workers into that unprotected excavation to install conduit).
- The Fixing Contractor would be responsible for fixing a safety violation. In many cases, this would be the same as the Creating Contractor. An exception may come when a Creating Contractor has already demobilized from the site, and the correction of a hazard has been assigned to another entity (i.e., a steel erection company left the site with perimeter cables in poor condition and a concrete company has been contractually obligated to maintain the cables).
- And finally, the Controlling Contractor is the “one ring to rule them all.” Ok, JRR Tolkien references aside, they are the ones who hold contracts with and, therefore, authority over the contractors on site.
The Controlling Contractor is the one that needs attention here. If they are not exerting enough control over their contractors, OSHA can, and most likely will, cite them for their inaction. How much control is enough is certainly up for interpretation. Control is one of the most hotly contested points of clarification I’ve seen in Expert Witness cases.
- Did the General Contractor or Construction Manager perform enough inspections?
- Did they provide any training or, at the very least, ensure that proper training had been conducted?
- Did they clearly communicate expectations?
- Did they even do any prequalification of their contractors?
Questions like these will be considered when determining how responsible the Controlling Contractor is. You need to be asking yourself if you are responsible, what can you do to ensure your Contractors’ safety is up to par?
1. Contractor Prequalification
Managing contractors from a safety perspective are exponentially more straightforward if the ones you hire have a good track record. While there are numerous systems on the market for contractor prequalification, they are often costly to both you and the contractor. That shouldn’t stop you. There is plenty you can do on your own, starting with requiring a contractor’s health and safety plan, their OSHA logs, and checking their EMR (Experience Modification Rate - which should be publicly available). In addition, you can check OSHA’s website to see if the contractor has incurred any fines and citations from OSHA. This should be reviewed by somebody that knows what they’re looking at. Not all incidents and citations are created equally.
If the person reviewing this information doesn’t know the difference between a de minimus and a serious violation, or if they don’t know to check the frequency and severity of a company’s incidents to help spot trends and see how they relate to a company’s safety performance, the information is just noise. If your reviewer is checking a box to say that they turned in a Health and Safety program without checking if the program is up-to-date and applicable to the type of work they perform, then your review is useless.
In addition, if you know other companies who have used these contractors in the past, ask about them. Did they perform safely? How was management support for the safety program? Did the company seem to have a safety culture? Did they use well-kept equipment or old, beat-up stuff? Try to get a big-picture overview of the company rather than a one-off experience.
2. Set Expectations with Contractors
Contractors need to know what you expect of them. There are many opportunities before work begins to make sure this happens. Bid documents should have already made clear what you expect their safety responsibilities to be so that they could adequately price out the equipment and manpower they will need to perform work on your job.
Once you’ve decided to award the bid to a company, the contract should also include what you expect their safety responsibilities to be. This goes beyond just saying that they must meet OSHA requirements.
- Do you have spots on your job where going above and beyond OSHA will be necessary?
- Are there disciplinary policies such as zero-tolerance issues or three-strike rules that they need to know?
- What are the drug and alcohol screening requirements for the job?
None of this should come as a surprise to your contractor, but if it does and you had it in the documents, then that’s on them. Finally, require all certification and training documentation relevant to the project.
Will they be operating aerial lifts? Get training records. Forklifts? Get their licenses. Working on excavation sites? Do they have excavation training? Also, have your contractor name, in writing, who their Competent Person will be and justify that designation by submitting that person’s background to you. Also, to think that this information will then make it down to the boots on the ground is optimistic, at best. Before the workers step foot on-site, you should ensure that they go through an orientation that clearly lays out what you expect of them:
- Safety requirements
- Disciplinary policies
- Drug and alcohol policies
- Everything else you addressed at the contract level is relevant to the workforce.
Don’t hesitate to hang conspicuous signs that emphasize some more important points. If your orientation is a checklist or a speech delivered by a disinterested party, you’re squandering an opportunity to set the tone for the project.
3. Checking In with Contractors
Your responsibility doesn’t end there. If your approach is just to let the contractors loose and turn a blind eye, expect it to come back and bite you. Now, it’s not to say that you have to oversee them every minute of every day. That would be unreasonable. You do, however, need to have some level of oversight.
Periodic observation of the job site is key. Notify the contractor, in writing, of any violations and tell them when you expect them to be fixed. Have them reply, in writing, when they are taking care of the issues. Verify it. Spot check who is operating equipment and match that up to the records you have on file. Are the contractors diligent about their people being qualified to do what they are being asked to do? The process of observing your contractors runs the length of the project.
Not all contractors will do the right thing when left to their own devices. Budget, schedule, project team, and a whole host of other factors cause even some of the best contractors to cut corners. Your primary goal is to keep everyone from getting hurt on your project, but if somebody does, you want to be confident that you have done everything you could to prevent it.
Finally, don’t be an enabler. A company that performs poorly from a safety perspective is bound to get somebody hurt or killed eventually. If a contractor refuses to get on board, the worst thing you could do is reinforce their unsafe behavior by awarding them further work. Make it clear that putting their workers at risk is unacceptable, and you will have no part in it.