Safety concerns

© THE CONTRACTOR’S LEGAL KIT, LLC, 2022. All rights reserved

It goes without saying that the most important reason to implement good job safety measures is to prevent the inevitable pain and suffering of the injured worker. This injured worker could be your best friend, a long-time co-worker, or even yourself. Focusing on job-site safety cannot only reduce injuries to employees, it can also avert the associated financial loss that comes with increased worker’s compensation rates caused by jobsite injuries. Someone always has to pay either directly or indirectly when a job-site injury occurs.

If the job-site injury is a major one resulting in death of a worker and you are uninsured, you may end up losing your business, home, and livelihood for a period of time. You may even be faced with criminal charges. Unfortunately, a few contractors seem unable or unwilling to pay attention to this aspect of their business until they’ve been faced with either a visit from their OSHA inspector or a trip to the hospital to visit a seriously injured employee.

This attitude is like playing Russian roulette. Even when taking precautions, sooner or later an accident will happen and, for both legal and ethical reasons, you need to be able to look back and know you did all you reasonably could have done to prevent the accident. If you take steps to avert job-site accidents, you’ll encounter far fewer of them and the ones you do encounter will tend to be of a less serious nature. Also, the fewer accidents you have, the lower your worker’s compensation insurance rate will be and therefore the lower your job costs will be. Because some accidents are inevitable, a contractor who has employees must carry worker’s compensation insurance to protect the injured worker and the contractor’s own assets. 


On the other hand, gross negligence in this area can end your career in the construction business if you are the victim, or if one of your employees is seriously injured or killed as a result of a job-site injury. If a worker is hurt on the job in the course of his work, the employer’s worker’s compensation insurance is typically triggered as long as the employer was not grossly negligent and derelict in his duty to provide a reasonably safe working environment.


If the contractor was grossly negligent in meeting OSHA standards (or other applicable safety standards set by the state), he may suffer all or part of the
financial responsibility for the injured employee’s loss. The contractor may also be exposed to the liability of a civil lawsuit by the injured worker. Remember, certain very basic duties to provide a safe work site are non-delegable. If one of your employees or a subcontractor’s employee is injured as a result of your gross non-compliance with basic safety standards, despite the existence of a worker’s compensation policy that covers the injured worker, you might still be sued
for the resulting damages.

Inherently Dangerous Work


What do the statistics generally indicate about job-site accidents in the construction industry? The bad news first. As many as one in ten construction workers in residential construction may be injured in a given year — some with major injuries.
Many will not be able to return to work the next day due to their injury. Some will never return to work again or ever go home. Fatalities occur most commonly
from falling, being struck by an object with great force, cave-ins, and being electrocuted (often falling after being shocked). Employees who are under the influence of recreational drugs or alcohol also account for a great number of job-site accidents and deaths every year. The good news is that residential construction appears to have less inherent dangers than commercial or industrial construction. Consistently implementing a good safety program can prevent many accidents, lower insurance costs, and reduce exposure to lawsuits.


At one time or another, we’ve all smashed our fingers, nicked our hands, shut down an eye with flying debris, or wound up with sore backs at the end of the
day. However, the trauma of a severe job-site accident will leave a sick feeling in your stomach if you ever encounter one. After the nausea starts to fade, the first
question you ask yourself as an employer and friend of the injured is, “How could I have possibly prevented that accident from occurring”? Why is this the first question that is inevitably asked? The reason must be because we all know that many job-site accidents can be prevented.


Construction always has and always will involve many inherent dangers. These dangers are easy for the customer to overlook and unfortunately, very easy for
the busy contractor to overlook. Many residential contractors will never see an OSHA inspector on their job sites. However, this does not reduce the inherent dangers of the job site, nor does the absence of the OSHA inspector reduce the duty of the contractor to provide safe working conditions.


Worker’s Compensation Insurance Is Essential


What can you do to reduce the financial risks associated with job-site injuries? First, make sure that you always have a worker’s compensation policy in effect. The basic
purpose of the worker’s compensation policy is to provide medical treatment to your employees who are injured while acting in the course and scope of their
employment and ideally to keep the employer from being sued in civil court over the job-site injury.


Every employer is required by law to provide this insurance for all his employees. You also need to make sure that all your subcontractors with employees maintain worker’s compensation policies. If you fail to provide this insurance for your employees, you will be breaking a very important law and will subject yourself to legal liability in the event one of your employees is injured. If you want to see the “long arm of the law” reach out and seize all types of personal assets, watch what happens when the government attaches a contractor’s property if they think they may need it to pay off an injured worker’s claim because the contractor had no worker’s compensation policy. 


Make Safety a Priority


The second thing you can do is to let your subs know through your contract and through your regular dealings with them that you place an extremely high priority on job-site safety. OSHA regulations state, in essence, that the general contractor is primarily responsible for maintaining job-site safety. However, regarding the subcontracted portion of the work, the general contractor and the subcontractor may agree on how to comply with safety obligations as long as these obligations are met. While the general contractor may attempt to make the subcontractor responsible for his own (the subcontractor’s) safe operations, the general contractor also has a duty to regularly monitor and supervise the job and to immediately correct or have corrected any safety violations regardless of who caused the safety hazard.


The third and perhaps most important thing a general contractor can do to reduce the financial risks associated with job-site injuries is to implement a safety
program which includes:


• Routine safety inspections and regular documented “tailgate” safety meetings


• Teaching employees how to recognize and avoid unsafe job conditions


• Providing job-site first-aid kits along with other required safety equipment


• Keeping a clean job site


• Providing basic personal protection equipment to employees.


In fact, OSHA requires that you take all of these preventative steps! General contractors must not delegate the responsibility for providing a safe work environment to their low-level employees. Even regarding subcontracted portions of the work, they can’t count on entirely delegating this duty to their subs. Rather, contractors must monitor job-site conditions themselves, and promptly
correct safety violations.


You may have a reasonable excuse for certain accidents occurring on your job, but you will have no excuse (and a much poorer defense against potential lawsuits) if you fail to take reasonable steps on a regular basis to prevent job-site injuries.
Having used the threat of financial ruin, guilt, gloom, and doom in the introduction above to persuade you to take this issue seriously, here is a list of common concerns and steps you can take to reduce the odds of making OSHA’s most-wanted list:


• Set an example yourself by working safely and by putting safety first in your job-site activities. Don’t allow unsafe conditions to continue for a minute longer once you notice them. Pull the plug on the tool without a guard, cut the cord on the tool without a grounding prong, throw out that ladder that looks unsafe, take that questionable nail gun in for service if you can’t keep it from misfiring or jamming,
dismantle the patched-together scaffolding, etc.


• Let your position on safety be known and suddenly your employees will have a standard to meet which they know you expect of them. This will go a long
way toward increasing safety and decreasing the possibility of catastrophic job-site injuries.


• Make a checklist of safety concerns and make it mandatory reading for every new employee and if you have an employee handbook, highlight the safety procedures in the employee handbook. Also, keep copies of your safety manual at job sites and have employees periodically review it. A periodic reminder like this may discourage a reckless act by one of your employees which he knows he really shouldn’t attempt.


• Devote a few minutes of time on a regular basis to job-site tailgate safety meetings. Keep a written log of these meetings.


• Keep the names and phone numbers of the nearest hospital and emergency services in a location at the job site that everyone is aware of.


• Let it be known that you will enforce safety rules and won’t tolerate anyone working in a manner that is obviously dangerous to himself and others. Have a few
harsh words with the “macho” young worker who thinks himself invincible or the seasoned journeyman who’s always done it his way — the dangerous way.


• Contract in your field of expertise. Working with tools and types of construction you are not experienced with increases the risk of job-site injury.


• Don’t put dangerous power tools in inexperienced hands. Provide carefully supervised training for entry level workers. Don’t loan dangerous power tools to
people who are not 100% qualified to use them.


• Provide personal protection equipment such as safety glasses, ear plugs, hard hats, and suitable dust masks to all employees. Insist they be used!


• Insist that employees wear proper clothing, gloves, and footwear.


• Pay particular attention to the safety habits of your new employees and subs to assure they are meeting your job-site safety expectations.


• Train employees in proper lifting methods. Encourage the use of common sense in lifting and moving materials. Rent lifting equipment when necessary — it’s cheaper in the long run than crushing your employees under the weight of that steel I-beam.


• Don’t use scaffolding unless you’re sure it meets OSHA and state safety standards. Make sure guardrails on scaffolding are always in place. Because
falls are one of the most common and most serious job-site injuries, doing otherwise is a very bad gamble. If you aren’t sure whether your equipment meets state and OSHA standards, find out before using it again.


• Don’t allow ladders to be used unsafely. Again, falls from ladders that perch on top of unstable surfaces, lean at odd angles, or fail to rise high enough above
the roof line are common causes of serious injuries.


• Don’t allow tools to be perched on top of areas where they can fall, slide, or become dislodged and fall on top of others.


• Remodeling is often done with the owner and his family around the job site. Establish safety rules that make it clear that the owner and his family (especially
children) are to stay out of the work area at all times and should move with increased awareness of the safety hazards when they must enter the work area.


• When it comes to speed vs. safety, always put safety first!

An accident is just that. Not all of them are avoidable, but experience has proven without a doubt that many accidents are avoidable. By actively focusing on
job-site safety, many potential job-site injuries will be prevented on your projects. By preventing accidents, you will prevent human suffering, reduce your insurance costs, and greatly limit your exposure to catastrophic lawsuits. You can’t prevent all accidents, but you have an ethical and legal obligation to implement a safety program that will reduce them.

Important Notice to Contractor and Disclaimer:
Before using or relying on the template forms and information above, read the template forms with care, fill in, modify, delete, add language to, and revise portions of the template forms according to your specific needs and any state laws applicable to the type of job you are using the document for.  Use of the form templates on this site does not constitute the formation of any kind of attorney/client relationship between you and us. You should seek and obtain independent legal advice from a licensed attorney in your local area familiar with construction law before using or relying on any of the forms or information on this site. The forms and information on this site are provided only as general information, not legal advice and may or may not reflect the most current legal developments, your specific needs or laws applicable to the state where you conduct business. Only the original purchaser of the forms has a limited license to modify, edit, print and use the forms.

© THE CONTRACTOR’S LEGAL KIT, LLC, 2022. All rights reserved