Construction projects involve a myriad of specialty contractors working concurrently on a project site. On any given day, contractors are performing such varied tasks as excavation, laying foundation, scaffolding, welding/cutting, pipefitting, crane operations and more. All of these activities involve life-critical hazards that must be anticipated, recognized, assessed and controlled in order to prevent personal injuries and/or process events.

When safety due diligence is performed consistently and with management backing, the desired safety performance results can be attained. However, most project managers agree that not all contractors share the same values and that safety knowledge, skill sets and abilities can vary widely among contractors. A poor organizational safety culture translates to less than satisfactory safety leadership and implementation at the field level. This in turn creates management challenges for other contractors as risks and liabilities could be introduced by an errant contractor via omission or commission but that must be dealt with in addition to the responsible contractor’s safety programs.

It is important to be apprised of the construction industry’s safety and compliance record in order to better understand the complexities and challenges associated with multi-employer worksites. Part I of this two-part article examines the safety statistics and what the compliance data reveals with respect to hazards exposure and problem areas. Part II provides a brief explanation of the U.S. Occupational Safety and Health Administration (OSHA) Multi-employer Citation Policy and how an employer could be liable for a workplace event even if it did not directly affect its own employees or work activities. Finally, recommendations are provided on reasonable measures that can be taken to avoid citations and penalties. This article is not a comprehensive discussion of the topic but rather is intended to lead the construction project manager to explore further and devise company-specific measures to ensure that the work is conducted safely and to protect against liability at multi-employer sites.

NAICS 23 Safety Performance and Compliance Data: 2012-2016

The North America Industrial Classification System (NAICS) is the standard used by the Bureau of Labor Statistics (BLS) in classifying business establishments for the purpose of collecting, analyzing and publishing statistical data related to the U.S. business economy. The occupational injury and illness statistics published by BLS for the three construction subsectors under NAICS, namely, Construction of Buildings (NAICS 236), Heavy and Civil Engineering Construction (NAICS 237) and Specialty Trade Contractors (NAICS 238) for the past five years (2012-2016) point to an increasing trend in workplace fatalities but a decreasing rate of injury and illness cases per 100 full-time workers, as illustrated in Table 1. An injury or illness is considered to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.

Table 1
Occupational Injury and Illness Statistics 2012-2016, (Construction Industry)

Source: U.S. Bureau of Labor Statistics

The increase in number of fatalities and corresponding decline in the recordable incident rate can be attributed to an increase in labor utilization (i.e. exposure hours) during this period. This is consistent with the construction recovery following the subprime mortgage lending crisis of 2006 and consequently, the economic downturn during 2007-2010. It can be surmised that these trends will continue into 2018 and near term, given the current administration’s commitment to a $1 trillion infrastructure development budget, which will increase the demand for construction personnel.

Paradoxically, the ongoing federal immigration clampdown and an aging workforce places constraints upon employers in finding qualified personnel to execute existing projects safely and efficiently. It is likely that the resulting influx of inexperienced personnel to the industry, or conversely an acute shortage of human resources, will increase the safety management challenges at multi-employer construction worksites where a high level of coordination is required between and among project contractors.

Also of note is that the construction industry experienced the highest number of fatalities and third highest rate of fatalities (Figure 1) compared with other industrial sectors in 2016, the latest year for which data has been published by BLS. With respect to non-fatal injuries (all industries), an analysis performed by BLS identified the leading causes, in decreasing order, as:

• overexertion and bodily reaction;
• slips, trips and falls;
• contact with objects or equipment;
• violence and other injuries by personnel or animals; and
• transportation incidents (Figure 2).

At multiemployer worksites, the responsibility for hazard correction is often confusing and often unaddressed until after an incident has occurred. The blame game that follows such events does not augur well for cohesion among contractors and undermines the project success.

Another interesting finding from the BLS 2016 fatality, injury and illness data is that “contracted workers” (or subcontractor personnel), in the construction industry comprised the highest percentage of all workers who were fatally injured, with a share of 48 percent of the total fatalities across all industrial sectors. This highlights a significant gap in safety prequalification, selection and on-boarding by the prime or hiring contractor. It also reflects a failure of independent oversight mechanisms by all parties – employers and government - with respect to oversight and supervision of subcontractor personnel.

Project owners and contractors subcontract for a variety of reasons including but not limited to:

• transfer of risk;
• securing cost advantage;
• acquiring services that require skills, expertise or equipment not available within the contractor’s own organization;
• personnel non-availability due to scheduling conflicts;
• contractual stipulation;
• hiring/staffing freeze; or
• other reasons.

It is not uncommon, therefore, to observe a cascade of subcontractors (i.e. subcontractors to subcontractors) working at construction worksites, which creates an unwieldy and complicated project organization and blurs the lines of communication, responsibility, authority and accountability for safety. Under these circumstances, even a comprehensive and well-developed safety management system could become very difficult and hugely expensive to implement. Furthermore, a project owner or principal/managing contractor is hindered by the lack of authority and jurisdiction over subcontractors due to the absence of a contractual relationship. This severely restricts the exercise of influence or control over the subcontractor’s activities and places the onus on the hiring contractor for doing so. Contractors who recognize that responsibilities and authorities for safety can get muddied down a subcontracting chain are better positioned to do address this issue.

Figure 1

Source: US Bureau of Labor Statistics, 2017

Figure 2

Figure 3

Source: US Bureau of Labor Statistics, 2017

Table 2 illustrates OSHA’s Top 10 most frequently cited violations and includes a comparison between the construction and other (all) industries for 2016. OSHA citations usually follow investigations of:

• imminent danger situations;
• severe injuries and illnesses;
• worker complaints;
• referrals of hazards from other federal, state or local agencies, individuals, organizations or the media;
• targeted inspections aimed at specific high-hazard industries or individual workplaces that have experienced high rates of injuries and illnesses; and
• follow-up inspections to check for abatement of violations cited during previous inspections.

Table 2: Top 10 Most Frequently Cited OSHA Violations – 2017

Source: National Safety Council

From Table 2, it is apparent that OSHA will not hesitate to cite a construction employer under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 when an investigation uncovers infractions not specifically addressed by an OSHA rule. The General Duty Clause states that employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm." An example of a Table 2 violation at a multiemployer worksite is an improperly constructed scaffolding erected by Contractor A (the “Creating Employer”) which collapses when used by Contractor B (the “Exposing Employer”), resulting in grievous injuries to Contractor B’s personnel. In this case, the project owner or “Controlling Employer” is liable for the violation, along with Contractors A and B, as it had general supervisory authority over the site. If the project owner retained a third party contractor to certify the scaffolding, that contractor would be liable as the “Correcting Employer.” The definition and roles of contractors working at multi-employer worksites is addressed in more detail in the following section.

It is thus evident that lapses in communication, coordination and oversight among contractors at multi-employer worksites can create hazardous conditions that could lead to accidents, losses and legal liability exposure.

Part II provides a brief explanation of the U.S. Occupational Safety and Health Administration (OSHA) Multi-employer Citation Policy and how an employer could be liable for a workplace event even if it did not directly affect its own employees or work activities, then provides recommendations on reasonable measures that can be taken to avoid citations and penalties.