Using Contractors: A Not So Modern Dilemma

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Using Contractors A Not So Modern Dilemma

• Heritage Group Safety

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OUTLINE

• Where did all this contractor liability come
  from?
• The importance of pre-qualifying contractors.
• What does OSHA think.
• The BIG liability question .

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Where did it come from?

• Several incidents in the late 80s and early 90s
  led to the OSHA Process Safety Standard.
• Pasadena, TX- 89-23 dead, 132 injured-explosion.
• Cincinnati, OH-90- 2 dead-explosion.

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Where did it come from?

• Sterlington, LA-91-8 dead, 128 injuries-chemical
  release.
• The OSHA Process Safety Standard specifically
  targeted contractors because contractors were the
  cause of all these catastrophes.
• PSM applied to Contractors performing
  maintenance, repair, turnaround, major renovation
  and specialty work.

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Contractor Liability
OSHA, later, applied this contractor liability
into the construction industry through Program
Directives and Standard Interpretations on
Multi-Employer work sites. There is no standard
on contractor liability.
However, you can be cited and fined for
Contractor Violations if you are an Owner
(Controlling Employer), Creating Employer,
Exposing Employer or Correcting Employer. More
importantly, as an owner or controlling
contractor you can be held financially liable for
injuries to third parties.
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Pre-Qualifying Contractors

• Owners-Controlling Contractors can be held
  financially liable for injuries and deaths to
  third parties, third parties can damage your site
  or injure your employees and you can be fined by
  OSHA for their violations.
• Pre-Qualifying Contractors is a MUST!

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What does OSHA think?

• Under the OSHA Multi-Employer Citation Policy
  both construction and non-construction citations
  shall be issued to employers whose employees are
  exposed to hazards. (exposing employer)
• Additionally, the following employers shall be
  cited, whether or not their own employees are
  exposed

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The employer who actually creates the hazard (the
creating employer). The employer who is
responsible, by contract or actual practice, for
safety and health conditions on the worksite. The
employer who has the authority for ensuring that
the hazardous conditions are corrected (the
controlling employer). The employer who has the
responsibility for actually correcting the
hazard (the correcting employer)
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MULTI-EMPLOYER WORKSITES

• Who is responsible?
• Who created the hazard?
• Who is exposed to the hazard.
• Who is ultimately responsible?

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The EXPOSING Employer

• On Multi-Employer worksites, citations normally
  will be issued to employer whose employees are
  exposed to the hazard.
• Examples.

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Others Normally Cited(Whether or not employees
are exposed)

• The Creating Employer.
• The Controlling Employer.
• The Correcting Employer.

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Prior To Citation Issue-Does Employer Have A
Legitimate Defense?

• Employer did not create the hazard.
• Employer did not have responsibility or authority
  to correct the hazard.
• Can demonstrate that all employees are notified
  of the hazard.

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The Employer has instructed employees to
recognize hazard, and,

• Exposing Employer has taken means to protect
  employees from hazard.
• Has removed employees from job to avoid citation.
  (In extreme circumstances)

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If Exposing Employer Meets These Defenses

• Then That Employer Shall Not Be Cited.
• If All Employers With Exposed Employees Meets
  These Defenses, Then Only Creating And
  Controlling Employers Shall Be Cited.

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In Such Circumstances, The Controlling Employer
and the Hazard Creating Employer

• Shall be cited even though none of their
  employees are exposed to the Hazard.

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PENALTIES

• Penalties are appropriately calculated, using the
  exposed employees of all employers as the number
  of employees for probability assessment.

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WORKSHOP
Cawleys Tater Flake Company hired Hightone
Paints, to do repair and painting. During the
repair work, Hightone removed a railing near a
walkway, exposing Hightone employees, Cawleys
Tater Flake employees and customers to a 7 foot
drop. Cawleys Tater Flake put up a sign,
warning the customers of the hazard. Who should
be cited for the missing rail????
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Both Hightone Paints and Cawleys Tater Flake
Co. Receive Citations
Cawleys Tater Flakes is the exposing employer.
Hightone also has employees exposed. The
warning sign is not sufficient to meet a
legitimate Defense.
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Ma/Pa Inc., contracted with Bumstead Plumbing to
repair sewer pipes on their property. The
contract stated that Bumstead Plumbing was
responsible for all safety and health conditions
related to the sewer job. Bumstead Plumbing dug
a trench and did not provide protection against
cave-ins for three of their employees working in
the trench. Which Company(ies) receives the
citation?
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Bumstead receives the citation. Bumstead is the
exposing employer.
Since Ma/Pa had no employees exposed, did not
create the hazard, was not responsible for the
safety and health conditions related to the
trench and did not have responsibility for
correction, they would probably not receive a
citation.
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Host operates a factory. It contracts with
Waltons Service Co. to service. Host fails to
cover drums of a chemical after repeated
requests to do so. This results in airborne
concentrations of the chemical that exceed
the Permissible Exposure Level (PEL). Which
company receive the citation(s)?
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Host is the creating employer because it caused
Waltons employees to be exposed to the air
contaminant above the PEL. Host failed to
implement measures to prevent the accumulative
air contaminant.
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Cornhusker Inc. hired Dingy Tank Co. to clean two
of their storage tanks. In the contract,
Cornhusker Inc. maintains responsibility for the
safety and health conditions of the workplace.
During the cleaning operations, three Dingy
employees are in the tank. Cornhusker has no
confined space program. Which company(ies)
receive the citation(s)???
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Who is the exposing employer? Who is the
controlling employer? Who has the responsibility
for safety? Dingy Tank is the exposing
employer. Cornhusker is the controlling
employer. Both Dingy Tank and Cornhusker has
responsibility to maintain safety and correct
deficiencies. Therefore, both companies receive
citations.