Shared responsibility

Proper selection, planning critical to contractor safety

By Ashley Johnson, associate editor

Last year, the Chemical Safety Board concluded inadequate contractor selection and oversight were partially to blame for the 2007 incident that killed five contract workers at an Xcel Energy hydroelectric plant 45 miles west of Denver.

Also in 2010, the Occupational Safety and Health Review Commission upheld OSHA’s multi-employer citation policy, which allows OSHA to cite the general contractor who controls a worksite for violations created by a subcontractor, even if the general contractor’s own employees are not exposed to the hazard.

Depending on the situation and jurisdiction, a property owner, general contractor or subcontractor each could face citations and lawsuits for an injury. Safety and legal experts recommend making safety a priority in every step of the process – from contractor selection to project completion.

“The jury will excuse many, many errors that a contractor makes if it can demonstrate that it was committed to safety,” said Ernie Alvino, a personal injury attorney with the law firm Hoffman DiMuzio in Woodbury, NJ. “But a jury is very unforgiving of even a minor error when a company puts money ahead of the lives of workers.”

Choose wisely

At the Xcel plant, workers were recoating the steel portion of a water tunnel when a flash fire broke out. In its final investigation report, CSB tied the incident to a lack of planning and training; Xcel’s selection of painting contractor RPI Coating Inc. of Santa Fe Springs, CA; and allowing flammable liquids in a permit-required confined space without special precautions.

The contractor selection process typically includes a pre-qualification process, during which contractors are excluded from bidding if they do not meet basic requirements. CSB said Xcel’s pre-qualification process focused on financial capacity and did not disqualify candidates with a poor safety record. Once pre-qualified, RPI should have been rejected for receiving a “zero” in the safety category, yet the contractor still was allowed to bid.

Xcel did promise to “closely observe” RPI’s safety performance in an addendum to the contract; however, Xcel managers conducted only two documented safety observations in the 29 days RPI was present, according to CSB.

“Even before the operation began, the stage was set for disaster,” CSB member Mark Griffon said in an Aug. 25 press release. “Xcel not only did not adequately plan for the operation, but it selected the painting contractor with the lowest possible safety rating among the bidders, and it did so mostly on the basis of cost – it was the lowest bid.” CSB recommended using a pre-qualification process that includes safety criteria.

Alvino also stressed the importance of considering safety up front. “Contractor selection is perhaps the most important pre-construction safety responsibility of a project owner or manager,” he said.
Alvino has worked on dozens of construction cases in the past 20 years, including the 2003 Tropicana Casino and Resort parking garage collapse in Atlantic City, NJ, which killed four and resulted in one of the largest construction case settlements in U.S. history. In more than one case, he said, a site safety representative did not have adequate knowledge of the OSHA regulations for his trade or did not know whether his company served as general contractor or project manager. In fact, in response to the question “What is OSHA?” a safety representative once told Alvino, “It has something to do with safety.”

“In almost every case I have handled, the site safety representative has never read the contract that governed their safety responsibilities,” Alvino said. “These errors are inexcusable not just from a legal standpoint, but for the safety of the worker.”

Statistics and beyond

Many employers use lagging indicators, such as the company’s experience modification rate and OSHA 300 log, to evaluate the safety of a potential contractor. Typically, an EMR at or below 1 is preferred. 

“While that doesn’t pick the winner, it excludes people who don’t meet that qualification criterion,” said Craig Shaffer, member of the environment, health and safety committee of Arlington, VA-based Associated Builders and Contractors. “It’s hard to have a mod below 1 if you’re not looking out for the safety of your folks.”

In an e-mail to Safety+Health magazine, Pete Chaney, director of safety and health for the Rockville, MD-based Mechanical Contractors Association of America, suggested using leading indicators to evaluate contractors. Such indicators include: 

• Implementation of a company safety and health program
• Frequency of investigations of near-miss incidents
• Frequency of repeat incidents
• Percentage of inspection issues that are promptly corrected

Chaney noted that these are action items. “It doesn’t mean much that a contractor has a written safety and health program. What matters is that the safety and health program is being implemented,” he said.

V. Paul Bucci, II, founding partner of the Philadelphia-based law firm Laffey, Bucci & Kent LLP, echoed that view. He has plenty of examples of incidents involving large construction management companies with wonderful safety programs – at least on paper.

“That’s really the rub here,” said Bucci, who also worked on the Tropicana case. “If the general contractor and the construction manager actually followed the letter of their own safety programs, then many if not all of those accidents would have been avoided.”

The contractor’s level of experience also is an important consideration. “Statistics [are] always going to be asked,” said Jerome Spear, a safety consultant based in Magnolia, TX. “To me, it doesn’t tell the whole story and you should really focus on the processes that contractors have in place, their safety program, their personnel qualification and experience in similar projects.”

For larger projects, an employer might visit the site of a comparable project the contractor has performed and interview customers, he added.

Richard Hislop, an expert in construction site safety and member of the National Safety Council’s Construction Division, agreed. He investigated an incident in South Dakota in which the contractor hired to install a watering pump in a deep mine was not asked the right questions beforehand. It turned out the workers only had experience putting in pumps for oil exploration in open prairies.

“If they’ve not done the job in a similar environment, unless one wants to stand there and basically provide them with 100 percent oversight, it’s better to retain contractors who have work experience in the identical environment that you want to have them do the work in and are able to demonstrate that they’ve done the work successfully,” Hislop said.

Follow the plan

As a consultant, Hislop helps organizations set up their safety programs on construction projects. “Bottom line,” he said, “I find that, irrespective of where you are in the country, projects all have the same fundamental problems. The principal problem in the construction industry is the lack of a process that teaches people how to effectively plan work.”

At the pre-mobilization phase of a project, Hislop sits down with the contractor’s safety person, superintendent and foreman. He has the contractor’s foreman explain the job hazard analysis and work plan. More often than not, the contractor’s superintendent will interrupt with corrections, which signals to Hislop that more communication is needed until there is a common vision and understanding of the work. Confusion can lead to injuries.

The pre-work planning stage is a prime opportunity for the owner to inquire about the competency of the individuals who will be performing high-risk activities and operating heavy equipment, Hislop said.
Chaney, also an advocate of pre-work planning, cited a study of construction companies that had achieved and sustained a high degree of safety excellence. Researchers from the Austin, TX-based Construction Industry Institute identified five common denominators, one of which was the implementation of pre-project and pre-task safety and health planning as a regular part of the construction planning process.

Chaney chaired an American National Standards Institute workgroup to develop an industry consensus standard around pre-project and pre-task planning. Based on the current version of the standard, which has not yet been published, Chaney said planning should cover several areas, including safety in the design process, hazard identification and reporting, project-specific safety plans, training, and task hazard analysis.

In addition to the obvious benefit of injury reduction, pre-planning can lead to accurate accounting of safety equipment, better communication between the general contractor and subcontractors, and increased productivity and efficiency, Chaney said.

Communication 

Contract workers essentially are visitors to the site. They typically require more training than permanent workers, who should already have received extensive hazard training. In Spear’s view, both the contractor and owner have training responsibilities. The contractor should ensure all its employees are adequately trained, and the owner should provide site-specific information.

Chaney noted the importance of communication between permanent employees and contract workers, especially in industrial process facilities where lockout/tagout and confined space entry may involve both sets of workers.

To ensure contract workers comply with safety protocols, Spear suggested owners conduct periodic inspections and audits. His recommendation comes with two caveats: “One thing that the facility owner needs to be cautious of is not to directly supervise the contractor employees because that could impact their liability,” Spear said. Owner audits also do not eliminate the need for contractors to perform self-audits, he added.

Put it in writing

Alvino has noticed that contractors tend to informally designate someone to be responsible for safety but fail to delineate rules in the contract. That can lead to confusion about responsibilities – onsite and in the eyes of a jury. As Alvino put it, how many people in business have significant responsibility but no written job description?

“No one is going to believe that you were following a bunch of rules and regulations if they’re not written down,” Alvino said. “That’s why companies should have a thoroughly written safety program with defined rules and defined roles and follow them to a T.”

Hislop advised breaking away from “boilerplate” contract language and specifying safety expectations, such as the requirement to conduct daily work coordination meetings to address hazards and controls. He acknowledged that an element of “risk transfer” exists in contractor operations. An organization usually hires contractors because its own employees lack the necessary expertise or it does not want to expose them to the hazards inherent in the contract work. However, that approach does not relieve an owner from ensuring a safe and effective process is in place.

“One also has a moral duty,” Hislop said, “to make sure that the contractor understands that in addition to productivity, you also want them to work safely.”