Do You Know How Badly Your Contractors Can Hurt You?

What training have they had? Are they qualified to the NFPA 70E standard and to 29 CFR 1910.332, 1910.333, and 1910.269?

• By James R. White
• Sep 01, 2011

Many companies, especially larger companies, depend on contractors to provide dependable, quality work. Most of the time that faith is well founded, but often it is based on mistaken assumptions. Case in point: I hired a painter to paint the kitchen in a house I owned. I could have done it but, my having just had hernia surgery, my wife thought it prudent not to force a second trip to the hospital. The painter we decided on provided references and was fairly expensive as compared with others. He did a lousy job. When I confronted him with his poor workmanship, he stated that he was a professional. I told him prostitutes were, too. You can imagine how the balance of the conversation went after that.

When contractors come to your site, your company now falls under the OSHA Multi-Employer Worksite Policy (CPL-02-00-124). This policy appears to be either unknown or misunderstood by most people who should be aware of it. As a snapshot, this policy splits responsibility for worker safety into four roles:

• Controlling employer
• Creating employer
• Exposing employer
• Correcting employer

OSHA then determines whether you met your responsibilities under those roles.

The host employer -- that is, the company that owns or operates the facility -- shares responsibility for the contractor's employees under the Multi-Employer Worksite Policy. If there is an accident that OSHA investigates, it will determine which of the employers has the four above-listed responsibilities. In most situations, the owner/operator is the host or controlling employer. The controlling employer has overall responsibility for the work site since they can determine who stays and who goes.

I like to call it the Golden Rule: He who has the gold sets the rules. The host has hired the contractor, and that contractor has to abide by the host's rules. Pretty simple. There are situations where the host may not be the controlling employer, such as a construction site where there is a general contractor. In these cases, there is often a clause in the contract between the host and the general contractor giving the general contractor the authorities and responsibilities of the host.

This policy came about, at least in part, due to some contractors hiring unqualified persons (often college students during the summer) to perform work around exposed energized conductors and circuit parts without adequate training. I guess they would have been qualified if they had received the proper training, but they didn't -- and many of them were injured or killed. OSHA stepped in to prevent this from happening.

It's not OSHA that should be the greatest concern, either. With staff employees, an employer receives some protection from lawsuits by way of worker's compensation laws. Unless there is negligence, an employee cannot sue his employer for injuries received on the job. In return, the employer has to take care of that employee's medical expenses and, if needed, disability. That is not the case when a company brings in a contractor. Often the contractor is a small, one- or two-man operation and has no financial resources. If there is a lawsuit, the injured employee may or may not sue the contractor employing him, but he certainly will sue the host. The following case study is true, but for obvious reasons the names of the parties involved are removed.

One Contractor Case
A well-known international company hired a local contractor to perform maintenance on its dual overhead incoming 34.5kV bus. The contractor that was hired consisted of a two-man team, both very experienced ex-utility workers who had a good reputation. The first morning of the project, the host company barricaded the energized incoming bus, and the contractor duo acknowledged they knew where they were able to work. They proceeded to clean, tighten, and maintain the 34.5kV bus, with one person on the ground and the second person in the bucket. When the host company's safety manager visited the work site, he observed the man on the ground tossing a rope to the man in the bucket, who would then reel in the needed supplies or tools.

The safety manager at this point stopped the work and told the contractor that they could not throw the rope in an energized substation because this was against their safety policy. The contractor duo replied that if they had to lower the bucker each and every time they needed supplies, it would double the time it would take to perform their task and cause them to lose money. The host safety manager pointed out that each bidder received a copy of the safety policies during the bid process and signed a contract acknowledging those policies. The safety manager insisted that the rope could not be thrown in the substation because it had no voltage rating and was, therefore, a conductive object. One of the contractor team replied that he knew what he was doing and the host company did not, which is why he was hired to perform the task. Since he was the expert, the man said, the host safety manager should leave and let them complete their work.

At this point the host safety manager called security guards and told them and the contractor that if he was observed throwing the rope in the substation once more, he would be removed from the property for violating their safety policy. The contractor indicated he understood the situation and would abide by the host company's safety policy. The safety manager made several trips to the substation that day and the contractor was observed lowering the bucket to replenish supplies, as requested.

The next morning, the safety manager was in a meeting when he received an urgent phone call. "There's been an accident in the sub. You need to go to the hospital immediately." The contractor apparently knew there were meetings in the morning and decided to speed up the work process by reverting to his old habit of tossing the rope up to the bucket. Unfortunately, one toss was just a little too far from the bucket, and when the worker in the bucket tried to grab the rope, he broke the plane of the still-energized parallel 34.5kV bus. The current flowed through his hand, across his chest, and out to a nearby steel girder. The safety manager stated that the first thing the hospital did was to amputate both of that worker's arms; he passed away three days later.

This story was related to me by one of the principals four years later. The deceased worker's wife did not sue the contractor. They had been close friends for several years. She sued the host company. After four years of litigation, the host company finally decided that it would be cheaper to settle with the widow than it would be to continue to defend itself. The person I talked to about this stated that the host company had spent millions of dollars in attorney fees, time from work for several people providing depositions, strategic meetings, expert witnesses, forensics, etc. Even though they felt they had done all they could to protect those contractors, it had become too costly.

The Bottom Line
Bringing in contractors to perform specialized tasks can be much more cost effective than having that level of technician on the payroll. As the above story illustrates, a host cannot discharge its responsibilities and, even when it does due diligence, there are legal traps that can lead to very high costs associated with unsafe work practices. If this had gone to court, the host company may have won its case; maybe not. There is no such thing as a sure win in legal battles, even if you are right. The best approach is to avoid going to court in the first place.

How well do you really know your contractors? What training have they had? Are they qualified to the NFPA 70E standard and to 29 CFR 1910.332, 1910.333, and 1910.269? Do they have the proper safety equipment to perform the task? Is their arc flash protective equipment in compliance with ASTM F1506 and NFPA 70E? I am amazed to still see pre-1996 green Nomex™ lab coat-style flash suits with polycarbonate faceshields still being used, even though they have no arc rating. The polycarbonate faceshield has been shown to have an arc rating of about 1.5 cal/cm²! When exposed to the heat of an electric arc, it melts to the face of anyone wearing it. Are those same contractors familiar with the host company's safety policies and work practices? Do they receive the same level of training as the host company's technicians?

You may be surprised by some of the answers you receive when these questions are asked. A review of their worker's comp modifier and their Lost Workday Incident Rate will provide some answers. If their numbers are higher than for other companies in the same line of work, there may be cultural and procedural deficiencies that could lead to an accident on your site. Use only companies with good safety records. They may not offer the low bid, as everyone knows safety costs money, but paying a little extra up front beats defending yourself later.

This article originally appeared in the September 2011 issue of Occupational Health & Safety.