Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Is this a Contract Question or a Safety Question?

Core construction at Number 2 reactor; North Anna Nuclear Power Station, Louisa County, Virginia; summer 1975 (photo by Jan Thomas)For this week’s Guest Post Friday, Musings has the pleasure of welcoming Jan Thomas, President of Circle Safety & Health Consultants, LLC. Jan is an occupational safety and health professional with doctorate, over 30 years of experience at the federal, state and university levels, and professional certification. Her background includes regulatory compliance, accident and fatality investigations, development of policy and procedures, program management and extensive experience in education, training, research, technical writing, forensic consultation and expert witness testimony. She is also a friend of mine and can be found on LinkedIn or by e-mail.

Construction Law Musings is familiar with that special nexus where occupational safety crosses construction contract law. My own work at Circle Safety & Health Consultants, LLC brings me into this realm.

I’m not an attorney but as a safety professional with almost 35 years of construction safety experience I do know a lot about worksite safety and it’s legal aspects including OSHA/VOSH compliance and best management practices within the trades. As a result, I sometimes get calls from clients and others seeking my advice. Recently, a steel erection company representative I occasionally work for called and wanted to chat about a “safety issue.”

The company had recently set up their crane and had started erection and decking work at a GC’s site. This sub had worked for the GC before, using similar contract terms of work. I was told that nothing but the price of work had changed until this week when the GC’s safety representative held a site safety meeting and informed the steel erection crew that they could no longer “engineer and site-build” their rat lines (horizontal safety lines). Instead, they had to either buy and use manufactured horizontal anchors or provide a PE’s certification of safety. The steel erection safety representative didn’t think the GC could or should change the rules and he wanted my opinion. (I’m skipping over some of our discussions of §1926.502(d)(15), including how to meet the definition of a “qualified person” and how to go about engineering anchorages).

“Sorry,” I told him. The GC, and in fact any employer, site-controlling or otherwise, can institute safety requirements that go above those required by OSHA. After a little more chatting I think he understood that there were really two parts to his dilemma. The first, from my point of view, concerns the safety of his iron workers while they are using a field-built system that could be made up of incompatible components with different load ratings. The second issue on which he was focused was whether or not the GC could change the old contract agreement which just required that they “meet OSHA requirements.”

I made sympathetic noises… yes, it appeared unfair that the GC was changing the rules. But then I laid out his options:

· Delay fixing the safety system in question and get written up by the GC and risk having an OSHA willful violation paper trail, and

· Stubbornly continue to work against the GC’s safety request and risk getting kicked off the job and never being invited back for more work, or

· Call your company attorney and get the safety language in the contract more clearly negotiated for the next job (but in the meantime, I recommend following the GC’s safety request).

If you enjoyed this Guest Post, please subscribe to this blog for more, e-mail Jan, or comment below.

[Photo by Jan Thomas]

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2 Responses to Is this a Contract Question or a Safety Question?

  1. I am surprised not to see another option which would be to notify the GC that you will comply but that you believe that this constitutes a change in the contract and will be submitting a claim for additional costs associated with implementing the changes.

    It would also be desirable to request the GC provide you with information on the source of this requirement. Was it required by some regulation or was it the recommendation of a consultant and if so why this requirement is justified.

    I would use this opportunity to have an independent review of your safety procedures focusing on compliance with OSHA requirements and what is considered good practice. Besides identifying weaknesses in your current practices the report could be used to show that the GC was requiring an enhanced level of safety the cost of which would not normally be included in normal contracts.

    Another reason for the reality check is creating the documentation in the event you reverted to your normal practices on a future project where there was some injury.

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