Is a General Contractor Responsible For a Subcontractors’ Safety Mistake?

OSHA seems to be highly predictable when issuing citations on a large multi-employer jobsite. They tend to cite both the offending subcontractor and the general contractor based solely on the subcontractor’s safety mistakes. This is problematic for any general contractor, and it’s a problem that gets magnified exponentially on jobsites where hundreds of subcontractors are involved.

In citing the general contractor, OSHA believes it can prove that the general contractor (the “controlling employer”) failed to fulfill its reasonable care obligations — which are to “detect and correct the identified safety violation through its supervisory authority and control over the jobsite.”

But what is “reasonable care”? Does it matter if a general contractor can demonstrate that such care has, indeed, been taken?

A recent case, Secretary of Labor vs. Suncor Energy U.S.A., has helped to clarify the “reasonable care” obligations of a “controlling employer” – at least when it involves scaffolding in a confined space at a construction site.

What happened? A subcontractor erected scaffolding inside a confined space and made modifications. This was a multi-employer worksite, Suncor Energy U.S.A. was the general contractor, and more than one subcontractor utilized the same scaffolding. Two employees of another subcontractor were using the scaffolding when they fell and suffered severe injuries.

OSHA cited Suncor for violation of §1926.451(g)(1), for lack of fall protection while employees were working on the scaffold. After an administrative law judge upheld the citation, the Occupational Safety and Health Review Commission reversed it for the following reasons:

  • Less Responsibility: The defective scaffold was hidden, and no Suncor employee was designated to work in that area. The Commission said that “a controlling employer’s duty to exercise reasonable care is less than what is required of an employer [the subcontractor] with respect to protecting its own employees.”
  • Project Size and Time Frame: The Commission determined that Suncor’s “reasonable care” efforts were “more than commensurate with the size, complexity, and the short time frame associated with this project.”
  •  Track Record: In their decision, the Commission highlighted Suncor’s internal policies about hiring safety-conscious subcontractors — and providing commensurate training to all subcontractors concerning safety and jobsite rules.

What does this mean for a general contractor? If you are the “controlling employer” at a multi-employer jobsite, this decision emphasizes the importance of already having a comprehensive safety and training program in place — whenever you receive a citation in conjunction with one of your subcontractors.

But this decision also sets an important precedent. It means that the Commission recognizes that under certain circumstances, the “controlling employer” is not as responsible to inspect for hazards as frequently as the subcontractor who is more directly involved, and whose employees have been endangered and/or injured.

About the Author: James Laboe

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