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Controlling employers
cannot avoid OSHA responsibility by subcontracting work
 By Jim
Stanley
Many
employers rely on one or more contractors to perform any number of specialized
jobs on worksites across the country.
Almost
always, the employer contracting the work to another entity has been requiring
the subcontractor to retain exclusive responsibility for the safety and health
of their employees while performing the subcontracted work. But the recent
Summit contractors decision from the 8th U.S. Circuit Court of
Appeals unequivocally held that the controlling employer can no longer avoid
OSHA responsibility simply by subcontracting work to another employer.
To meet
these safety responsibilities I recommend that all controlling employers evaluate
the degree to which they control the means and methods of their subcontractors'
work and implement a program to insure that hazards/violations are identified
and corrected:
- Controlling employers need to review
all contractor and subcontractor safety-related documentation, including all
safety programs and policies to insure they are current and address specific
hazards, such falls, machine guarding, confined space entry, electrical hazards, etc., to which their
employees are exposed or are potentially exposed.
- Controlling employers cannot
eliminate their OSHA liability by contract, but contractual language can be
written to limit the controlling employers' responsibility to correct hazardous
conditions. Controlling employers must review contractual language to identify
the degree of control that it exercises over other employers.
-
Controlling employers on
multi-employer worksites must either inspect the worksite itself or require
that subcontractors conduct inspections frequently enough so that the subs have
the ability to identify and correct safety and/or health hazards/violations.
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If these inspection procedures are
implemented, it is my opinion that the controlling employer will have exercised
reasonable care to prevent and detect hazards/violations on the site.
Controlling employers are not normally required to inspect for hazards as
frequently or to have the same level of knowledge of the applicable OSHA
standards or of trade expertise as the contractor it has hired.
-
Controlling employers must develop a
system for subcontractors to monitor their employees, correct
hazards/violations and report back to
them.
-
The controlling employer must require
all subcontractors to immediately report injuries/illnesses to them. The
controlling employer must also require that all subcontractors maintain
documentation of any worksite injuries or illnesses to their employees, as well
any corrective actions that were taken to address any hazardous conditions that
led to the injury or illness.
As was expected, the "new" OSHA is
aggressively enforcing safety and health issues throughout the country. The
multi-employer worksite policy is being used by the agency as another tool to
aggressively enforce OSHA regulations. It's my recommendation that controlling
employers develop written documentation, policies and procedures to show OSHA
that they are exercising reasonable care to prevent and detect hazards on the
worksite.
Jim Stanley is a former Deputy Assistant Secretary of Labor for OSHA, the
No. 2 job at the agency. He has extensive experience with contractor safety
programs. He may be contacted at (513) 317-5644 or jstanley@fdrsafety.com.
To keep up with the latest developments in OSHA's campaign to
dramatically increase enforcement, subscribe to our blog. |
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on combustible dust problems, grain issues
Recent serious accidents at grain facilities illustrate that careful attention to safety is
required where combustible dust may be present or where grain is stored or
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For
more on this issue, watch this informative video on combustible dust. It depicts how accumulations of
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Latest from our blog:
The 'new' OSHA uses an old policy to make an
example of employers
OSHA has revived an old policy of alleging
a separate violation and proposing a separate penalty for each "egregious"
instance of non-compliance with OSHA recordkeeping regulations, safety and
health standards and with the general duty clause. The resulting large
aggregate penalties are part of a strategy which OSHA believes improves the
efficiency and effectiveness of the agency and conserves its limited resources
by making an example of the employers who are cited.
See our blog post for details.
And for a full summary of OSHA's
administrative actions to increase enforcement and the progress of legislation
to strengthen the OSHA act, see our last newsletter.
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ABOUT FDRsafetyAt the heart of FDRsafety is this simple idea: Extensive expertise and experience bring the best results. FDRsafety is led by two nationally recognized, long-time leaders in safety: Fred Rine and Jim Stanley. Each has decades of experience improving occupational safety and health performance at companies of all sizes, including complex multi-billion dollar, multinational organizations. FDRsafety can meet your needs for a wide range of safety and health services, including training, OSHA compliance, safety staffing and expert witnesses. Contact us to learn how we can help you reduce accidents, meet federal, state and local legal requirements, reduce costs, and most importantly, protect your greatest assets - your employees.
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