Those who make a living in construction don’t have to be convinced that a safe and clean work environment is important. Construction is one of the most hazardous occupations according to OSHA and unfortunately on-the-job injuries remind us of this regularly.
But from a legal standpoint, the real question is who is responsible for safety. The law is relatively clear: it’s the contractor. When a contractor takes control of a job, he or she owns it and is responsible for means, methods, techniques and—last but not least—safety.
General contractor liability
So if you are a general contractor, safety starts with you. However, you don’t have to shoulder all the responsibility. Your subcontract gives you the opportunity to shift some of the safety obligations to your subs. That allows you to contractually limit your potential exposure. A subcontractor can do this through a provision such as the following:
Subcontractor agrees that the prevention of accidents to workers engaged upon or in the vicinity of the work is its responsibility, even if contractor establishes a safety program for the entire project. Subcontractor has the sole responsibility for maintaining the safety and lost prevention programs covering all work performed by subcontractor and its subcontractors and suppliers of any and all tiers.
The contract should also indicate that the subcontractor needs to resolve safety violations in accordance with the law and the demands of the GC and owner. The following contract language will provide that:
Subcontractor shall establish and implement safety measure, policies, and standards conforming to those required or recommended by governmental or quasi-governmental authorities having jurisdiction and by contractor and owner, including, but not limited to, any requirements imposed by the contract documents. Subcontractor shall comply with the reasonable recommendations of insurance companies having an interest in the project.
Finally, there are those situations when a GC cannot ascertain safety violations, even if he or she visits a job site. The following provision is intended to minimize the GC’s liability if someone gets hurt.
Contractors failure to stop subcontractor’s unsafe practices shall not relieve subcontractor of its responsibility therefore. Subcontractor, as reasonably necessary, shall provide flagmen, erect proper barricades, employ fall protection, and other safeguards, and post danger signs and other warnings as warranted by hazardous or potentially hazardous conditions.
Preserving subcontractor rights
As a subcontractor having these safety obligations flow down to you creates a need for you to also protect yourself. Make sure your safety responsibilities don’t extend beyond your scope of work. Include a provision in the subcontract that says the subcontractor will require the general contractor
“to provide customary protective services for the work” and “to hold its workers harmless from the presence of hazardous waste or materials at the job site not created, generated, delivered, or stored by subcontractor.”
Keeping the site clean
Cleanup is also important to job safety and is another area that should be clearly defined in the subcontract. Don’t get stuck as did this subcontractor: He was back charged by a general contractor for thousands of dollars. The reason—failure of adequate cleanup.
To avoid this type of back charge, include a contract provision that outlines the subcontractor’s cleanup responsibility so everyone knows what is expected, and add this sort of provision:
“Contractor shall provide a trash dumpster within reasonable proximity to the project and provide customary protective services for the work and the project. Before contractor shall assess a backcharge against subcontractor, contractor shall provide subcontractor written notice detailing the issue and providing subcontractor reasonable opportunity to cure the deficiency creating the back charge.”
Safety plans and precautions can save lives. However, the actual or perceived delegation of safety obligations if done incorrectly can create liability. Make sure you clarify who is obligated to manage and monitor safety issues to protect your workers and your company.