By: WBG, LLP Published: January 2011

Defending Against An OSHA Citation: A General Contractor's Perspective

General Contractors have a dual concern when it comes to protecting their companies from OSHA citations: they must not only be on guard against OSHA violations committed by their own employees, but a prudent General Contractor should also be vigilant with respect to a subcontractor's employees whose violative acts will often be imputed by OSHA to the General Contractor because of the General Contractor's control over a site. It is particularly difficult for a general contractor to protect itself against violations caused by independent acts and omissions of employees and subcontractors of which the General Contractor has no knowledge. For these reasons, there are a series of steps which every General Contractor should consider taking in order to protect their companies from OSHA citations in such instances.

In general, applicable OSHA case law has held that an employer cannot be held responsible for the violation of an OSHA standard resulting from an act by an employee (and by analogy, a subcontractor), for which the employer ( or General Contractor) has no knowledge and which was contrary to the employer's instructions. In order to establish this defense, known as "unpreventable employee misconduct," the employer must demonstrate the following:

(1) the violation must have been caused by or resulted from exclusively employee action; (2) it must have been an isolated and unanticipated instance; (3) it must have been of short duration; (4) it must not have been participated in, observed by, or performed with the knowledge of supervisory personnel and must not have been foreseen by the employer in the exercise of reasonable diligence; and (5) the employee's action was in contravention of well established policy, program or rule which was used to instruct employees in safe work practices and which was enforced by disciplinary action when necessary.

Therefore, with respect to employees, a General Contractor should have in place a well established written company-wide safety plan covering all aspects of the contractor's operations, including both management and employees. Having the safety plan reviewed by an independent consultant, and then implementing any suggestions made by that consultant further strengthens the safety plan.

Next, elements of the company-wide safety plan need to be communicated to the employees by whatever means possible, including at "tool box meetings". For example, a General Contractor should consider covering a different topic of workplace safety each week at "tool box meetings", and at those meetings, handing out pamphlets and literature to the employees regarding various topical OSHA rules. Employee attendance at those meetings should be documented.

Finally, the safety plan needs to be actively enforced by the General Contractor, including reprimanding and dismissing employees that disregard explicit safety rules. Enforcement should similarly be documented with memos, letters and other employment records.

With respect to subcontractors, by analogy, the Contractor should have a written company-wide safety plan describing how the General Contractor communicates and enforces safety issues with subcontractors, including the use of comprehensive contract clauses concerning workplace safety. It should be made clear that a breach of OSHA rules is a breach of the subcontract and the failure to cure could, as with any material breach, be grounds for termination.

During the course of the project, those safety issues need to be effectively communicated to the subcontractors at project meetings and later confirmed in meeting minutes. Correspondence and field memos should also memorialize the communication of safety concerns. For example, the site superintendent should immediately notify a subcontractor in writing when he or she witnesses an unsafe situation and the superintendent should then follow-up on those notifications.

Finally, safety issues should be actively enforced with the subcontractors through various contractual mechanisms, including withholding funds, threatening termination, and even terminating recalcitrant subcontractors when the circumstances warrant it.

In the event a General Contractor is issued a citation by OSHA resulting from the independent act of an employee or a subcontractor, documentation of the aforementioned steps could prove in valuable in defending against the citation at an informal conference or a full hearing.

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