SAFETY IN CONTRACTS 4
4.4 CONTRACT REQUIREMENTS
The contract whether between the project owner and the general contractor (or) between the general contractor and their tiers, should clearly specify the safety and health requirements to avoid disputes during construction and also ensure all the parties utilize consistent safety standards . Furthermore, it allows contractors to account for the safety-related expenses in the project budget . Some of the most important safety and health requirements that are recommended to be included in contracts are discussed in this chapter . It should be noted that there might be other project specific safety and health challenges that should be adequately addressed in the contract to avoid surprises .
4.4.1 Prequalification
It is important to include verbiage requiring all contractors and subcontractors to pre-qualify sub-, and sub-tier contractors such as “….the contractor shall develop appropriate pre-qualification criteria for the selection of subcontractors. All such pre-qualification criteria shall be subject to the prior written approval of <Company Name>.”
4.4.2 Laws and Regulations
Construction contracts, at a minimum, should include verbiage such as “…the contractor shall develop and implement, and be responsible for, a comprehensive safety program that complies with all applicable (environmental, health, and safety) international, national, state, county, local, contractor, and owner requirements while performing work on the project or facility.” This blanket statement communicates the message that the contractors shall abide by all applicable laws and regulations, and also are required to comply with project-specific owner and contractor safety guidelines . The word “shall” is intended to convey the “mandatory” nature of the requirements .
4.4.3 Project Specific Safety Plan
The contract should require all contractors and their tiers to submit a site-specific safety plan prior to commencement of any construction work or with any significant change in activity . It should clearly state the contractors cannot commence until the safety plan is approved .
4.4.4 Safety Hazard Assessment
Job Hazard Analysis (JHA), Pre-task Plans (PTP), and safety inspections/surveys are some of the standard safety planning tools used for site hazard assessment and control . It is recommended to add these requirements in the contract such as frequency of pre-task plan meetings (e .g ., daily), frequency of inspections (e .g ., weekly), type of inspections (e .g ., superintendent), timeline for fixing hazards, documentation requirements, etc . Since these hazard assessment tools costs money, stating them in
4.4.5 Subcontractor Management
The construction contract should require not only the “direct” contractor to comply with the contract requirements but also all tiers by adding verbiage in the contract such as “the contractor and the tiers shall comply with the project contract requirement.” The contract should also include verbiage that allows the company to take action when their contractors fail to comply with the contract safety requirements .
4.4.6 Safety Staffing
Staffing of the safety function normally depends on the project size and complexity . The contract should identify the minimum level of safety staffing expected to manage the safety program . The contract should include when (defined in terms of trade headcount) the project will require a “dedicated” safety professional onsite and when it is acceptable to staff a “designated” safety representative with an assignment of a “floater” safety professional to assist the project .
A dedicated safety professional shall not hold other duties while a designated safety representative might hold other duties but present at the site full-time (e .g ., Superintendent) . A floater is a qualified safety professional to oversee several projects, when it is not financially feasible to assign a full-time on-site professional to a single job or due to the nature of the job in terms of complexity .
The contract should also specify the minimum qualifications of both the designated and dedicated safety professionals . For example, “When the contractor’s trade headcount reaches 30, employ one on-site, full-time dedicated safety professional. The contractor shall also commit one on-site, full-time dedicated safety professional for every additional 50 trade headcount. The dedicated safety professional must hold a safety degree and have a minimum of three years professional safety experience in construction. The designated safety representative must hold an OSHA 30-hour Construction Certification and have a minimum of ten year’s construction field experience.” Another requirement that can be added is the professional certification such as Certified Safety Professional (CSP) or Construction Health and Safety Technician (CHST) .
4.4.7 Safety Meetings
Safety meetings is one of the best ways to share jobsite progress, lessons learned from incidents, safety statistics (incident rates, citations, etc), new safety products, issue safety awards, and much more . Since safety meetings cost a lot of worker time, at a minimum the contract should specify the required safety meetings and their frequency . For example, “…the contractor shall hold a weekly project-wide safety meeting (also known as “mass safety meetings”) and daily tool box meetings. The contractor shall mandate attendance for all persons performing work on the project.”
4.4.8 Site Specific Safety Orientation Training
The contract shall require the contractors to provide new employee orientation safety training to all workers before they are allowed access to their worksite . It should state the duration of the training . The contract should also require contractors to provide a proof of training completion in the form of a badge or a hard hat decal . The new employee orientation safety training must include information regarding all applicable laws and government regulatory requirements, in addition to project-specific safety requirements .
4.4.9 Safety Training
The contract should require that the contractors should train their workers on all applicable federal, state, local, and project-specific owner mandated training . The project-specific training that are above and beyond regulatory compliance (e .g . OSHA 10-hour) should be spelled out in the contract . This would be a good place to ensure that the contractors maintain clear training documentation readily accessible in case of an audit by owner or regulatory agencies .
4.4.10 Substance Abuse Program
The contract should specify your firm’s substance abuse testing requirements such as (1) who will be tested (e .g ., all office and field personnel), (2) when will they be tested (e .g ., pre-employment, probable cause or suspicion, and post-accident), and (3) what are they being tested (e .g ., alcohol, etc .) . It is always a good idea to refer to your company’s substance abuse policy for more details . When developing programs, policies, or procedures relating to substance abuse programs, contractors should always seek guidance from its attorneys/legal counsel or seek guidance from an employment law specialist . This helps to ensure compliance with all applicable local, state, and federal laws . For example, contractors can use language such as, “Subcontractor, Subcontractor’s sub-tier subcontractors and their respective employees, shall take all reasonable and necessary safety precautions pertaining to work and the conduct thereof, including, but not limited to, compliance with all applicable laws, ordinances, rules, regulations and orders issued by public authority, whether federal, state, local, DOSH or other state or federal regulatory agency, and any safety measure requested in good faith by contractor, including, but not limited to, substance abuse testing, and all laws or regulations that incorporate ASME standards and definitions relating to crane operations.”
4.4.11 Accident Reporting and Investigation
The contract shall require all contractors and their tiers to report and investigate all incidents regardless of severity, which resulted in personal injury or illness to workers and general public, and property damage . Contract managers should consider specifying the following items when writing this section:
(1) timeline for reporting accidents (e .g ., DOSH requirements), (2) personnel to be notified of accident, (3) who should conduct the investigation, (4) who should attend accident review meetings (e .g ., should owner representative be invited?), (5) when should the investigation be completed (e .g ., within 24 hours of accident occurrence), (6) what kind of accident documentation is needed in terms of report and corrective actions and where should it be submitted, and (7) what happens with the lessons learned report (e .g ., lessons learned should be shared throughout the company) .
4.4.12 Emergency Plan
The contract should require the contractor to develop and implement a site-specific emergency action plan that should specify plan contents, posting and communication requirements, frequency of drills, procurement of equipment (e .g ., AED) or services (e .g ., on-site nurse station), and collaboration with local emergency personnel (e .g ., local fire department or on-site emergency personnel) .
4.4.13 Pre-Bid and Pre-Construction Meetings
The contract should require all contractors and their tiers to hold pre-bid meetings . The contractor should present an overview of the project safety contract requirements and unique challenges associated
in their bids to meet the contract requirements . In addition, the contractors and their tiers should be required to participate in a pre-construction meeting to ensure they understand the project safety requirements prior to commencement of work . The contract should clearly state who should attend the meeting . At a minimum, the contract should state “…pre-bid and pre-construction meetings should be attended by the contractor project management, field management, and safety personnel.”
4.4.14 Special Provisions
New safety requirements such as the use of 3D modeling such as Building Information Modeling (BIM) for safety planning, design for safety reviews to eliminate or minimize hazards during design phase, and use of smartphone Apps for inspections, etc, are relatively new to the industry . If such requirements are part of the project, contract managers should ensure they are clearly specified in the contract .
4.4.15 Progressive Disciplinary and Incentive Programs
Even though disciplinary and incentive programs are common in most safety programs, it is recommended to include these requirements as part of the contract . Some firms contractually require contractors not to reward workers based on lagging indicators .
4.5 Contract Issues Related to Safety Management and Remedial Measures2
Contracts if not clear can result in issues that can result in wasted time and money to resolve them . A list of common trade-specific contract issues related to construction safety management is presented in Exhibit 4-1 . Even though not exhaustive, the list of issues generated with input from numerous contractors is formatted as a checklist that will help contract managers and safety professionals remember to include appropriate items in the final contract . Using this list may reduce disputes with respect to safety issues during construction operations .