THERE MAY BE SOME place on this planet where every man and woman is still expected to look out for him or herself, with no one else to blame if something goes wrong, but it sure isn’t within the borders of these United States.
Whether you are an enemy of big government or an advocate of social responsibility for the less fortunate, you know that governmental intervention into the way you do business is here to stay.
EPA, Wage and Hour, state and local human resource and natural resource officials, to name a few of your overseers, have been mandated to keep you in line. But no aspect of construction life will get your work shut down more quickly than an accusation that your jobsite isn’t safe.
The number of court cases that I see in which contractors are punished big time for safety violations is too numerous to recount here. And it is not just for the activities of your own workers, but for those of any subcontractors you might employ.
Recently a contractor and his jobsite superintendent, along with the subcontractor and its owner, were all held criminally liable (in addition, or course, to their liability to pay money damages) for the illness of total strangers because they had discovered some canisters containing poisonous gas in a building they were renovating, and they left the canisters in a nearby field for several weeks. (Apparently someone unfamiliar with the word “POISON” or the skull-and-crossbones symbol on the canisters took them to his cousin, who hooked them up to her stove as fuel.) The contractors were all considered, under the law, to have “stored” hazardous materials, but not done so in proper fashion.
Similarly, contractors have been found liable for improper disposal of asbestos that their subcontractors had encountered but not told the contractor about. This is all on top of the increase in workers’ compensation insurance rates as a result of jobsite accidents.
There are very few situations in which the law does not impute to a general contractor (or any upper tier subcontractor) liability for the safety violations of those whom he has hired to work on a site. Liability for identification of hazardous materials is just one. Jobsite safety requirements such as fall protection netting and tie-offs, hard hats, steel-toed boots, safety glasses, capped rebar and maintenance of MSDS sheets are just a few, but if they are not observed by a sub, both the sub and the contractor who hired him will be fined.
Because OSHA fines go up steeply for repeat offenses, a contractor can find itself liable for a much larger sum of money than the guilty sub owes, where the violation is the sub’s first offense but the contractor has had other subs who got in trouble in the past – all where the contractor itself did nothing wrong and may not have even known of the violations.
These exposures to regulatory fines, lawsuits from injured persons, criminal prosecutions and skyrocketing insurance premiums make it all the wiser for contractors to get serious about having formal safety programs that must be followed by their employees and subs. By this I mean:
l Inserting specific clauses in subcontracts that clearly and explicitly require all subs to follow their safety requirements as well as all laws and regulations. These clauses make violations an act of default, require indemnification against liability and require the sub to appoint a qualified safety officer who is proficient in the language of any worker the sub has on site.
l Reading carefully all safety requirements of their customers (which might exceed local laws) to make sure that they all can be complied with and incorporated into their subcontracts as well.
l Paying for programs developed by firms who are specialists in understanding and complying with all applicable laws.
l Having regular safety meetings on site at which attendance of all workers and subs is mandatory and at which sign-up sheets are required and minutes kept.
l Educating one or more employees to know safety requirements, walk the jobsite regularly and giving him or her the authority to shut work down or order a worker off the job immediately if safety precautions are not met.
Contract clauses alone will not cause people to act safely, but they give you some tools with which to let people know you are serious. A sub that sees funds withheld for delay damages due to a safety-related job shutdown ought to learn pretty quickly that it is in its interest to enforce safety regulations on site.
Susan McGreevy is a partner at Husch & Eppenberger, Kansas City, Mo., tel. 816/421-4800, e-mail to [email protected].