A10.33 Multiemployer Projects

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Why A10.33 Safety and Health Program Requirements for Multiemployer Projects is important

Although consensus safety standards developed by ANSI and other standards development organizations (e.g., ASTM, NFPA) are not binding as a matter of law unless they are specifically incorporated into a mandatory OSHA or MSHA standard, they are legally significant in other ways. For example, the A10.33 standard can be incorporated into a contract for a complex construction project, which makes it legally enforceable as part of the contract, and it defines the duties and rights of various parties to such a project. Courts also can take judicial notice of national consensus standards, so this standard could be used in tort actions to show specific duties that a plaintiff (the injured party or his/her estate) could claim were breached and resulted in the personal injuries, property damage or death at issue in litigation.

For OSHA purposes, if this were included in such a way, it could bolster enforcement actions under the existing OSHA multiemployer workplace policy (where OSHA can issue citations to the controlling, creating, exposing and/or correcting employer) because it would help clearly define the roles and obligations in terms of safety for each participant. I am sure that OSHA (or a state plan OSHA program) could also find a way to creatively use this to support enforcement under Section 5(a)(1) of the OSH Act, the General Duty Clause, as OSHA’s Field Operations Manual already lists consensus standards as a mechanism for imputing the necessary knowledge of potential hazards to an employer for Section 5(a)(1) actions.

Multiemployer construction challenges

a10_33The biggest challenge is the ability to harmonize the safety programs and safety cultures of the various participants. A general contractor may have great programs, well-trained workers and astute supervisors, but once subcontractors enter the scene, all bets are off. The low bidder often has sacrificed safety to achieve that magic low number.

It is critical for general contractors on construction projects (as well as for host employers, where contractors and subcontractors may be present to perform certain tasks in a general industry work- place) to prequalify subcontractors to ensure that they will not be the weak link in the safety chain. This includes examining their programs, training, history of enforcement actions, injury/illness rates and ensuring that they have all the proper and mandatory certifications and licenses to carry out their responsibilities (e.g., electrical work) or to operate equipment, such as cranes or powered industrial trucks.

In addition, it is essential that safety responsibilities are clearly delineated in terms of who will do daily walk-around inspections of the work site, who has authority to stop work and who will direct employers who are not being safe to leave the worksite. Contractual documents also should carry clear requirements for use and furnishing of PPE, specifications on who must correct any hazardous conditions created or discovered during the course of the project and for coordination of efforts where multiple companies may have personnel involved (e.g., lockout/tagout or confined space entry activities).

Finally, construction projects should have clear communication of emergency procedures in place so everyone understands their respective roles and what to do if a crisis arises. This includes training on what different signals mean (especially where blasting or demolition is involved), determining who notifies OSHA (if required), training on who should fight incipient fires and explaining where people should gather so the designated person can make sure everyone is accounted for. In my experience, if no one is designated to be in charge in the event of emergency, serious mistakes occur at critical times, people can be harmed and legal positions can be compromised.

Ensuring compliance across all groups working on a project

Monitor, monitor, monitor and document, document, document. The general contractor (GC) will be at the top of the food chain, for OSHA enforcement purposes, and is often held responsible for the errors and omissions of the subs below it under the multiemployer doctrine, as the “controlling employer.” So, even if contractual documents require everyone to be law-abiding, trust but verify.

Even if the GC were to be indemnified for the legal expenses and costs of citations it receives as a result of unsafe acts/conditions of a subcontractor, those citations remain on the GC’s his- tory of violations and can trigger repeat or willful violations in the future, so indemnification is not much comfort. Moreover, with the potential for criminal prosecution present in the event of a willful violation linked to a fatality, contractual indemnification cannot require a subcontractor to serve prison time for the GC.

To ensure compliance across all four groups, pre-project meetings are important to plan the work, then work the plan safely. Daily or weekly toolbox talks across all tiers can be held and should be documented as to what is covered and who attends. Job safety analysis can delineate safe work procedures to be followed, especially where multiple employers may work together on a single task. As already noted, if you prequalify contractors/subs, you will start from a better position.

Suppliers can be a problem because they have an intermittent presence on a worksite and often no supervisor of their own to direct workers. GCs and other employers must be careful not to direct the work of another’s employees where that can be avoided because of the growing tort law area of negligent supervision.

Therefore, it may be that the best option for suppliers and other delivery personnel is to prepare written site- specific training information with the rules of the worksite clearly explained (in multiple languages, where appropriate). Get them to sign receipt of this information and make sure that you enforce the rules.

Failure to properly document

Failure to document could create legal issues because if A10.33 is incorporated into the project contracts, failure to abide by the terms could be construed as a breach of contract with specified damages awarded. Moreover, when OSHA initiates a significant case, it will obtain the contract documents either through voluntary production by the GC or through use of a subpoena duces tecum. OSHA then uses the terms of the contract for its own enforcement purposes to show responsibility for certain project areas to determine roles for various players.

It certainly helps if uniform workplace examination or reporting forms are created at the start of a project so that all information is compiled and recorded in a uniform manner that is legally compliant with all applicable regulations and standards.

In addition, if OSHA asks for the injury/illness logs and they are not available, the agency can look to the contract to determine which entity to cite. Remember that OSHA allows 300 logs for short-term projects to be kept at a central location, but they must be easily retrievable for production to the compliance officer.

As for hazard reports, audits and daily examination records, OSHA increasingly wants to know what the employer knew and when s/he knew it to support issuance of willful violations. These records should be carefully prepared as they may be obtained by the agency (e.g., the term hazard should be used rather than violation when recording an observed condition), and any conditions that can adversely affect safety or health must be promptly remediated and barricaded off until this can be done.

If the A10.33-based contract calls for inspection of work areas and documentation of those workplace examinations or reporting of hazards by subs to the GC, OSHA will know what records are supposed to exist and can subpoena those as well. If they do not exist, OSHA can reasonably conclude (and a judge could agree) that this means the safety inspections never took place.

OSHA also can write citations based on documented hazards that were never corrected and can use the contractual documents to trace the path that those hazard alerts were supposed to take through the various players. Finally, remember that in OSHA’s view, undocumented training never occurred. All training sessions, no matter how informal, must be documented if you want to get recognition of this as a mitigating factor in OSHA litigation or to support the affirmative defense of unforeseeable employee misconduct.

In my experience, the worst situation is when multiple companies have representatives who have observed a hazard but no one acted because they thought it was the other guy’s responsibility. If you have exposed workers or are the GC, you will still be held legally responsible even if you did not create the condition. So, the contract better provide enough latitude that anyone can danger-off an area if circumstances warrant.

Project survey and hazard analysis documentation

All pre-work project survey and hazard analysis should be documented to show that it was done, especially if these activities are contractually required. Otherwise, a breach action could follow. If OSHA adopts its I2P2 standard (safety and health management program requirements), this type of information would need to be documented anyway, as all workplace hazards would need to be identified and mitigated. More than a dozen states already have some form of an I2P2 program in place, so depending on where the work is performed, this may already be a legal requirement.

But until you know what hazards are present, how can you possibly create a sound work plan or conduct effective site-specific hazard training? I know that people do not go into construction because they like to spend time dealing with paperwork and computers, but this is a necessary part of any safe and healthful construction activity in the 21st century.

Multiemployer construction project recommendations

Safety and health are everyone’s responsibility. No one can put blinders on when involved in a multi- employer construction project. You cannot watch out only for your own employees or be ignorant of the impact that your activities have on other companies and their workers. While you should not direct the work of others’ employees, if you can avoid it, in imminent danger situations, that may be necessary as the moral thing to do.

Also, do not be afraid to kick the unsafe actor off the worksite. As the GC, do not tolerate risks that subs are exposing workers to that you would not allow in your own company. If your company is the sub and the GC is not maintaining a safe workplace, do not be afraid to pack up and leave. No job or contract is worth someone’s life.

Adherence to A10.33 can help a company anticipate issues that can and should be addressed and provide a suitable framework for developing contractual language and delineating roles and responsibilities, even disciplinary procedures. However, I would suggest that to be truly on top of things from a safety perspective, the other A10 standards, relevant to a specific project, also should be examined and used as the basis for the project planning and implementation. Otherwise, you only address some of the issues.

I especially like the appendices in A10.33 because they provide model forms that can be used for some of the activities and training documentation discussed here. Using the forms included in A10.33 regularly will solve many of the documentation issues that OSHA often uses to show lack of appropriate project management and oversight with respect to safety. Because OSHA actions can be used in tort litigation as proof of negligence per se, satisfying OSHA that due diligence was exercised by all parties to a contract in meeting their obligations under A10.33 can go a long way in preventing citations from being issued or upheld, which in turn benefits companies in the event of tort litigation over injuries or property damage.

Adele Abrams, Esq., CMSP, is president and attorney at the Law Office of Adele L. Abrams PC in Beltsville, MD. She is a nationally recognized author and speaker on occupational and mine safety and health issues. Adele also provides safety training (OSHA/MSHA) and consultation services, including safety and health audits. She is a member of the adjunct faculty of the Catholic University of America, teaching legal courses in its Master’s in Management program. She has coauthored several books on mining and safety, and writes for Aggregates Manager and Pallet Central.

 
 

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