Since its establishment in 1970, the federal Occupational Safety and Health Administration ("OSHA") has implemented an enforcement approach that creates tension between employers, general contractors and subcontractors. Too often companies give little thought to such critical issues as which employer has primary responsibility for compliance with mandatory standards, and which controls hazards at a worksite and directs the activities of the workforce, until after an inspection has occurred and citations have been issued.
OSHA may issue parallel citations to general contractors and their subcontractors for the subcontractor's alleged violations. In addition to costing companies significant money in civil penalties - currently, OSHA civil penalties can reach $70,000 per violation -- OSHA's dual citation policy often pits the general contractor and its subcontractors against each other in litigation.
Significantly, OSHA citations can be introduced in some state tort actions to prove "negligence per se." This legal theory simplifies a plaintiff's burden of proof on the "breach" element of a prima facie negligence case. Negligence per se allows the plaintiff to prove the defendant's "breach" of a duty of care by showing simply that the defendant violated a statute or regulation that (a) covers the class of activities giving rise to plaintiff's injuries, and (b) was designed to protect the class of persons to which plaintiff belongs.1 Therefore, it is imperative that general contractors take appropriate action to manage subcontractor risks from the outset and ensure that the companies who will provide services pursuant to a contractual agreement are aware of OSHA compliance obligations, have employees who are trained and supervisors who are competent, and that demonstrate a commitment to safety and health through appropriate safety and health management programs.
Failure to forge a safety partnership prior to initiation of work, and a lack of clear role delineation and legal responsibilities and status can mean disaster for the general contractor, complicate worker's compensation and insurance claims, and even result in criminal prosecution.
As a general rule, any OSHA standards that require development of written programs, certifications, or specific employee training or competency should be carefully reviewed as they may contain requirements that place additional importance on the prequalification of contractors and subcontractors, or have multi-employer worksite ramifications with respect to coordination of the various employers' programs and procedures.
For example, to comply with 29 C.F.R. § 1926.20(a)(1), all employers who perform any part of a construction project must ensure that no employees must work in surroundings or under conditions which are: unsanitary, hazardous, or dangerous to health or safety. This is not a duty that can be delegated to another party or contracted away. In addition, specific safety and health standards contain mandates to share information with contractors and/or non-employees who may be present at the worksite.
