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Jeanne M. Harrison, Associate, Smith, Currie & Hancock LLP.
February 13, 2023
Construction accidents can cause significant personal injury or death, property damage, job delays, and increased costs. As a result, it is imperative that owners and contractors continuously monitor and manage potential safety concerns on construction job sites with the intention of reducing accidents.

One technique for owners and contractors to address these concerns on the front end of the project is to ensure that their written contract language details their companies’ rights, obligations, and expectations on a project. The language should also address the contractor’s safety preparedness and performance. This article details suggested best practices for the inclusion of safety-related language into construction contracts.

Best Practice Tip #1: Ensure Compliance with Federal, State, and Local Safety Regulations

At a minimum, written contracts should require that all contractors, subcontractors, or others performing work on the project site follow all applicable federal, state, and local safety requirements. The contract does not need to specifically detail every law or regulation. The burden is upon individual companies to know the applicable federal, state, or local requirements and to ensure compliance. The contract may specifically reference or quote regulations that the contracting party wants to highlight.

Best Practice Tip #2: Require Evidence of A Written Safety Plan

A number of Occupational Safety and Health (OSHA) regulations, both state and federal, require contractors to maintain a written safety plan. One example being the respirable crystalline silica regulations codified at 29 CFR § 1910.1053. Even in those instances where a written safety plan is not required by the governing authorities such as OSHA, it is still good practice to require all lower tier employers to maintain an updated written safety plan. The existence of such plans, establish a safety culture and help employees remember safety best practices and specific trainings as they work. Additionally, a written safety plan may help reduce costs related to workers’ compensation premiums.

Best Practice Tip #3: Require Evidence of Workers Compensation Insurance.

Workers compensation insurance serves two purposes: it ensures that workers injured in the performance of their job duties get medical care and compensation for workplace injuries and it can protect an employer’s bottom line by providing a level of certainty of the financial risk associated with workplace injuries. While Workers Compensation insurance requirements differ by state, it is important to understand that it is required in most states. A few states, including North Dakota, Ohio, Washington and Wyoming require that businesses obtain workers compensation insurance through state-funded operations. It is the responsibility of the contracting parties to ensure their compliance with the pertinent state laws.

Additionally, the contract may detail specific safety ratings (such as CPAR or workers compensation) a minimum baseline for being awarded work on the project. Owners and contractors have the authority to vet potential lower stream contractors based upon their safety ratings.

Best Practice Tip # 4: Site Specific Safety Plan

Every construction project has its own unique safety challenges. A site-specific safety plan is a written document which outlines the procedures managing risks on a specific project side and the health and safety requirements for that job. The site-specific safety plan should tie specific activities/conditions to hazards, involve all contractors and subcontractors who work on the project, and be updated regularly to incorporate changes to the project conditions and hazard exposures.

Best Practice Tip #5: Identify Areas Which Are Subject to Contractor’s Control  

It is common for multiple contractors/employers to perform different scopes of work at the same time on the project site. These contractors work in close quarters, and it is possible for one contractor’s work to create potential safety hazards for other trades. For this reason, it is important for contractors to understand and clearly communicate the specific areas of the project site which are subject to their control and oversight.

A safe workplace not only protects employees from injury, but it also can lower a company’s expenditures, increase productivity, and quality of performance. In other words, safety is good for business and must be taken seriously. Employers must be aware of the hazards in their workplace and take steps on the front end, via the contracting process, to identify and manage potential dangers. Inclusions of the above tips into the construction contract will help parties identify and manage potential safety concerns on their construction projects.

Smith Currie provides comprehensive legal services to all parts of the construction industry across the nation. Smith Currie lawyers have decades of demonstrated success representing construction and federal government contracting clients “From the Ground Up,” including procurement matters, contract formation and negotiation, project administration, claims prosecution and, when necessary, in litigation and other forms of dispute resolution.

The  views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.

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