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Safety Begins at the Top: General Contractors Must Enforce OSHA Safety Rules

OSHA is Critical to Prevent Needless Injury to Anyone That Comes Near Construction Projects

Congress enacted the Occupational Safety and Health Act (the OSH Act), 29 U.S.C.A. § 651 to § 678, to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C.A. § 651(b); see Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 359 (App. Div. 2004). In pursuing those goals, Congress authorized the Secretary of Labor to promulgate health and safety standards for workplaces, 29 U.S.C.A. § 655, and established the Occupational Safety and Health Administration (OSHA) to enforce those standards through inspections and investigations, 29 U.S.C.A. § 657; Gonzalez, supra. The OSHA Act requires employers to comply with specific standards and also imposes a general duty on employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C.A. § 654(a); Gonzalez at 359-60. Violators of specific OSHA standards or OSHA’s general duty to provide a safe workplace face civil monetary penalties, as well as criminal sanctions, 29 U.S.C.A. § 666. Gonzalez, supra.

Specifically, the OSHA regulations provide that:
[N]o contractor or subcontractor for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety.

29 C.F.R. § 1926.20. While it is recognized that the subcontractors have a responsibility to the OSHA Regulations, it is ultimately the general contractor that must enforce these Regulations and determine whether or not they are being followed by the subcontractors. 29 C.F.R. § 1926.16. As such, a general contractor cannot delegate its duty to maintain a safe workplace under the federal OSHA regulations to another; but rather, the general contractor must maintain overall responsibility for the project.

(a) The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually. Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from the actual, but not any legal, responsibility (or, as the case may be, relieving the other subcontractors from this responsibility). In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.

(b) By contracting for full performance of a contract subject to section 107 of the Act, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.

(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.

(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.

29 C.F.R. §1926.16 (emphasis added); see Alloway v. Bradlees, 157 N.J. 221, 237-38 (1999). (a general contractor on a work site has a non-delegable duty to maintain a safe workplace).

Under well-settled construction law in New Jersey, general contractors like Compass Building have a non-delegable duty to maintain a safe workplace that includes “ensur[ing] ‘prospective and continuing compliance’ with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations.” Alloway v. Bradlees Inc., 157 N.J. at 237-38 (1999), citing, Kane v. Hartz Mountain, 278 N.J.Super. 129, 142-43 (App. Div. 1994) State public policy and OSHA impose a duty on the general contractor to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all. Alloway, 157 N.J. at 238, citing Bortz v. Rammel, 151 N.J.Super. 312, 321 (App. Div. 1977), cert. den. 75 N.J. 539. As a matter of public policy and federal law, the general contractor is the single repository of responsibility for the safety of all employees on the job. As such, the general contractor bears responsibility for all OSHA violations on a project. Meder v. Resorts International, 240 N.J.Super. 470, 473-77 (App. Div. 1989), cert. den. 121 N.J. 608; Kane, 278 N.J.Super. at 142-43; Dawson v. Bunker Hill Plaza Assocs., 289 N.J.Super. 309, 320-21 (App.Div.1996).

Indeed, the law recognizes the realities of construction sites, that it is the general contractor that has the power and position to enforce workplace safety rules and to generally foster an environment where workplace safety and the well being of the workers on the job are given high priority. While certainly everyone on a construction site should adhere to the OSHA safety regulations, the law recognizes that the workers at the bottom of the hierarchy are powerless to take any real enforcement role and will in fact often be pressured to work in unsafe conditions without complaint, or risk losing their job. See generally e.g., Suter v. San Angelo Foundry & Mach. Co., 81 N.J. 150 (1979) (recognizing that workers of have “no meaningful choice” but to work in unsafe conditions; they either do so “or [be] subject to discipline or being labeled as a troublemaker.” Cavanaugh v. Skil Corporation, 331 N.J.Super. 134, 185 (App. Div. 1999) (workers on construction sites often have no real choice about working under known unsafe conditions.); Tirrell v. Navistar Intern., Inc., 248 N.J.Super. 390 (App.Div. 1991) (same- construction site worker who was not paying attention was killed when tractor trailer backed up over him).

As such, general contractor enforcement is a key component of the federal workplace safety scheme embodied in OSHA. Contact a workplace accident attorney in NJ today for a free consultation of your accident injury case.

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