Contracting for Preventative Risk Management
Contractual requirements for increased risk management can communicate the expectation of safety and minimize exposure for losses. Unfortunately, the standard construction contract contains very little in regards to incident prevention.
The article that addresses protection of persons and property (A201) generally places the responsibility for jobsite safety upon the general contractor, outlining that safety precautions, reasonable safeguards and compliance with OSHA must be maintained. Responsibilities for subcontractors (A401) are even less descriptive, stating that “reasonable safety precautions” must be taken. These vague statements can be bolstered in any contract to identify specific expectations.
OSHA’s regulations for construction outline that a general contractor and a subcontractor are jointly responsible for subcontracted work “…With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.”
Where most contractors miss the mark is by not including proactive safety and risk mitigation stipulations into the general conditions of their contracts. By incorporating the expectation that a contractor will need to exceed minimum federal safety laws, a project can reap benefits that are often overlooked. Reducing the risk of injuries during the construction phase can minimize the risk of stop work orders, mandatory OSHA post-accident inspections, delays in completion, negative press, property damage and other liabilities occurring from losses incurred during construction.
Incorporation of risk-reducing stipulations in the contract provides for an initial notification of safety performance expectations. It can also assist in enforcement, should the need arise.
ADDITIONAL PROVISION EXAMPLES
- Upon initial arrival and prior to commencement of work every employee will complete the site safety orientation and will be required to show completion card at all times while onsite.
- Prior to commencement of work, every employee must have a valid OSHA 10-hour construction safety course completion card that has been issued within the previous 5 years. Each contractor must have at least one onsite supervisor/foreman with a valid OSHA 30-hour course completion card that has been issued within the previous 5 years.
ENVIRONMENTAL – SILICA
- Engineering controls shall be in place so that silica containing dust is not generated by concrete work, stone cutting, block coring or similar operations. Respirators alone will not be allowed for worker protection.
- The subcontractor is required to elevate all power cords from walking surfaces in order to minimize tripping hazards.
FALL PREVENTION ACCESS
- Ladders are not to be used to access working surfaces. Prefabricated stairs or stair towers are to be used in lieu of ladders. At least two means of temporary access must be provided to every level and floor.
FALL PREVENTION SYSTEMS
- Where fall protection is required, it will be the contractor’s responsibility to utilize retractable or other fall arrest systems limiting fall distance to two feet whenever feasible.
- All debris generated during a day’s work shall be loaded into containers the same day it was created. No debris shall accumulate on any surface and shall instead be placed into a suitable, contractor-supplied container immediately.
- The contractor shall hold daily Job Hazard Analysis/pre-task meetings to discuss the work to be performed and the safety requirements of the task. Meeting subjects shall be documented and signed by all in attendance.
- A management official (not site staff) shall conduct a minimum of one safety inspection per month, submitting written results to the general contractor within 24 hours.
- The use of man baskets, or other powered industrial truck (rough terrain forklift) attachments to elevate personnel is strictly prohibited. ANSI approved boom and scissor type aerial work platforms must be utilized for mobile, elevated work.
All contractors should keep in mind that theses clauses are just a few examples of including preventative risk management processes in contracts. There are many opportunities for increasing onsite risk management and individual projects may lend themselves to additional, specialized requirements.
Although general contractors may find themselves with increased legal liability in the event of a loss, safety is everyone’s job. A contractual requirement for increased risk management can assist in communicating the expectation as well as minimize exposure for losses.
Because state laws regarding the enforceability of clauses differ, counsel for contractors should confirm the enforceability of applicable clauses in the relevant jurisdictions.