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Evaluation of Safety Provisions in Subcontracts


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1 EVALUATION OF SAFETY PROVISIONS IN SUBCONTRACTS By SUEZANN BOHNER A THESIS PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLOR IDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF SCIENCE IN BUILDING CONSTRUCTION UNIVERSITY OF FLORIDA 2007

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2 2007 Suezann Bohner

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3 For my family and friends who have supported me in all my endeavors And a thank you to Joe for everything that he does

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4 ACKNOWLEDGMENTS I thank my parents for all their support and encour agement. I thank my father for all of his ideas, opinions, stories, a nd ranting; they never fail to inspire. I would specifically like to thank Dr. Jimmie Hinze for all of his hard work and dedication to his students and the teaching profession. I greatly appreciat e all of his help and support in completing this study.

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5 TABLE OF CONTENTS page ACKNOWLEDGMENTS...............................................................................................................4 LIST OF TABLES................................................................................................................. ..........8 LIST OF FIGURES................................................................................................................ .........9 INTRODUCTION................................................................................................................... ......13 LITERATURE REVIEW..............................................................................................................15 Construction Industry Safety..................................................................................................15 Contractual Agreements.........................................................................................................16 Factors Affecting Jobsite Safety.............................................................................................17 Subcontractor/General C ontractor Relationship..............................................................17 General Contractor/Owner Relationship.........................................................................18 Subcontracts and Safety........................................................................................................ ..18 METHODOLOGY.................................................................................................................... ....20 Introduction................................................................................................................... ..........20 Subcontract Agreements.........................................................................................................20 Obtaining Current Subcontract Agreements...................................................................20 Obtaining Historical Subcontract Agreements................................................................21 Establishing the Va lidity of the Subcontract Agreements...............................................21 Data Coding Sheet Development............................................................................................22 Compiling a List of Safety Provisions.............................................................................22 Organization of the Provisions........................................................................................22 Safety Programs................................................................................................................ ......23 OSHA Standards................................................................................................................. ....24 RESULTS........................................................................................................................ ..............25 Introduction................................................................................................................... ..........25 Section 1General Provisions................................................................................................25 Protection of Work..........................................................................................................25 Providing Potable Wate r for the Jobsite..........................................................................26 Providing Toilets for the Jobsite......................................................................................27 Providing Electric for the Jobsite....................................................................................28 Providing Trash Removal/Dumpsters for the Jobsite......................................................29 Section 2Safety Provisions: General....................................................................................29 Indemnity Clause.............................................................................................................30 Contract Compliance.......................................................................................................30 Responsibility for Safety.................................................................................................31 Cleanliness and Safety.....................................................................................................33

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6 Safety Supervisor.............................................................................................................34 Notification of Unsafe Work Conditions........................................................................35 Jobsite Injuries............................................................................................................... ..36 Section 3Compliance.......................................................................................................... ..37 Applicable Safety Laws and Regulations........................................................................37 Section 4General Contractor's Rights..................................................................................39 Restrict Job Site Access...................................................................................................40 Waiver of Provisions.......................................................................................................41 Maintaining a Safe Job Site.............................................................................................41 Instructing Subcontractor Employees..............................................................................42 Section 5Programs, Submittals, and Requirements by Law................................................43 Safety Information Submission.......................................................................................43 Contractor's Safety Policy...............................................................................................45 Drug and Alcohol Policy.................................................................................................45 Drug and Alcohol Laws...................................................................................................47 Hazardous Substance Laws.............................................................................................48 Permission for Hazardous Substances.............................................................................51 Section 6Safety Meetings and Training...............................................................................53 Conducted by Subcontractor...........................................................................................53 Conducted by General Contractor...................................................................................55 Section 7Detailed Safety Requirements...............................................................................56 Personal Protective Equipment........................................................................................57 Effectively Barricading for Safety...................................................................................58 Lighting....................................................................................................................... ....61 Electric....................................................................................................................... ......62 Underground Utilities......................................................................................................63 Fall Protection................................................................................................................ .63 Safety Kits.................................................................................................................... ...64 Equipment Op eration.......................................................................................................65 Distractions................................................................................................................... ...66 Fire Safety.................................................................................................................... ...66 Section 8 Miscellane ous Safety Provisions.........................................................................67 Section 9 Historical Comparison.........................................................................................71 CONCLUSION..................................................................................................................... .........95 RECOMMENDATIONS...............................................................................................................97 Recommendations to the Industry..........................................................................................97 Recommendations to Researchers..........................................................................................97 CODING FORM FOR SUBC ONTRACT AGREEMENTS.........................................................99 SUBCONTRACT CODING RESULTS.....................................................................................104 SAFETY MANUAL CASE STUDY..........................................................................................105

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7 LIST OF REFERENCES.............................................................................................................108 BIOGRAPHICAL SKETCH.......................................................................................................109

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8 LIST OF TABLES Table page 4-1 Descriptive statistical data for the incl usion of safety provis ions in subcontract documents...................................................................................................................... ....94

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9 LIST OF FIGURES Figure page 4-1 Protection of work clause................................................................................................. ......73 4-2 Responsibility for providing potable water............................................................................73 4-3 Responsibility for pr oviding toilet facilities...........................................................................74 4-4 Responsibility for providing electricity..................................................................................74 4-5 Responsibility for providing dumpsters/trash removal..........................................................75 4-6 Indemnity clauses......................................................................................................... ..........75 4-7 Sub-subcontractor and supplier co mpliance with subcontract agreement..............................76 4-8 Inclusion of prime contract as part of subcontract.................................................................76 4-9 Subcontractor responsibility for safety...................................................................................77 4-10 Responsibility for worker safety......................................................................................... ..77 4-11 Cleanliness and safety................................................................................................... .......78 4-12 Designating a safety supervisor.......................................................................................... ..78 4-13 Notifying contractor of unsafe work conditions...................................................................79 4-14a Notifying general contractor of injuries..............................................................................79 4-14b Correlation of injury notif ication and accident reports......................................................80 4-15 Compliance with applicable laws.........................................................................................80 4-16 Compliance with safety laws and recommendations............................................................81 4-17 General contractors right to restrict job site access..............................................................81 4-18 Non-enforcement is not a waiver of provisions....................................................................82 4-19 General contractors right to correct safety deficiencies.......................................................82 4-20 General contractor's right to instruct subcontractor employees...........................................83 4-21 Subcontractor safety programs............................................................................................ .83 4-22 General contractor safety programs......................................................................................84

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10 4-23 Drug and alcohol policies................................................................................................ .....84 4-24 Drug free workplace statutes............................................................................................. ...85 4-25 Hazardous communication programs...................................................................................85 4-26 Hazardous substance laws................................................................................................. ...86 4-27 Hazardous substances on the jobsite....................................................................................86 4-28 Safety meetings and trai ning conducted by the subcontractor.............................................87 4-29 Safety meetings.......................................................................................................... ...........87 4-30 Personal protective equipment provisions............................................................................88 4-31 Effectively barricading for safety....................................................................................... ..89 4-32 Hoisting and material handling........................................................................................... ..89 4-33 Task lighting............................................................................................................ .............90 4-34 Providing ground fault interrupters......................................................................................90 4-35 Locating underground objects/facilities...............................................................................91 4-36 Fall protection.......................................................................................................... .............91 4-37 OSHA safety kits......................................................................................................... .........92 4-38 Equipment safety......................................................................................................... .........92 4-39 No radios/sound-generating devices.....................................................................................93 4-40 Provide fire ex tinguishers/protection....................................................................................93

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11 Abstract of Thesis Presen ted to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Master of Science in Building Construction EVALUATION OF SAFETY PROVISIONS IN SUBCONTRACTS By Suezann Bohner May 2007 Chair: Jimmie W. Hinze Major: Building Construction Construction safety has steadily improved si nce the inception of the Occupational Safety and Health Administration (OSHA) in 1971. The c onstruction industry's safety record is still poorer than all other industries. The majority of actual construction labor is performed by subcontractors who exercise little control over th e job site. General cont ractors usually control the pace and coordination of the work. Because th e subcontractor has little control, the general contractor has a greater influence on subcontra ctor safety than the actual subcontractor. Many studies have been conducted analyzing fa ctors that affect j obsite safety. The majority of these factors can be implemented a nd controlled by the genera l contractor. One way to implement safety measures is by including th em as provisions in construction subcontract documents. Including safety provisions in the su bcontracts effectively makes them a law. The goal of my study was to evaluate and enumerate the inclusion of safety provisions found in subcontract agreements. The subcontract sa fety provisions were compared to the OSHA regulations to determine if they re quired stricter safety measures. Thirty-three subcontracts dated 2004-2006 were obtained from The Florida Roofing, Sheet Metal and Air Conditioning Contract ors Association (FRSA) as well as various contractors in the state of Florida. Each subcontract agreement was assigned a number and then evaluated for the

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12 inclusion of safety provisions. This was also do ne with sixteen subcontract documents from the time period 1989-1990. This allowed for an historic al reference for which the frequency that safety provisions were in cluded could be compared. After compiling and enumerating the safety provisions found in the subcontract agreements, I found that the inclusion of safety provisions has increased over time. The majority of the provisions did not mandate any stricter safety measures than those already required by law. The miscellaneous safety provisions found to only occur in one subcontract were found to be more proactive in their safety measures.

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13 CHAPTER 1 INTRODUCTION According to the Census of Fatal Occupa tional Injuries (CFOI) and the Survey of Occupational Injuries an d Illnesses published by the Bureau of Labor Statistics, there were 1,186 fatalities and 1,766,600 injuries and illnesses in th e construction industry in 2005. More than half of these fatalities and injuries were sustai ned by the employees of specialty contractors or subcontractors. These findings are not surprising since a large portion of the construction put in place is performed by subcontractors, putting thei r employees at greater risk of sustaining injuries and fatalities than the empl oyees of the general contractors. So what role do general contra ctors have in ensuring the safe ty of all on-site construction workers, including those of the subcontractor? General contractors have a responsibility for worker safety, even when no employees are on si te. For example, according to the Occupational Health and Safety Administra tion (OSHA), general contractor s are not relieved of their responsibilities for ensuring the safety of everyone on a jobsite, includi ng the employees of the subcontractor and the subcontractor s' subcontractors' employees. While the role of general contra ctors for the safety of all wo rkers is assumed by virtue of being the controlling contractor, subcontractors are also responsible for the h ealth and safety of their employees. This creates a joint role and respons ibility for both the ge neral contractor and the subcontractor in ensu ring the health and safety of the s ubcontractors' employees. This role may be altered contractually. Most general c ontractors include provisions and in some cases additional addenda and exhibits in their subcontract agreements that pertain specifically to safety. These are designed to shif t risk or they may be included in contracts to help ensure safe work performance.

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14 Almost all subcontract agreements include indemnity clauses whereby the subcontractor agrees to hold harmless the general contractor for a ny injuries or fatalities that may be sustained on the jobsite either th rough the fault or no fault of the general contractor's actions. Nevertheless, some contractors ta ke more proactive steps for ensu ring a safe jobsite by including provisions directly in their subc ontracts that address the protec tion of the health, safety, and welfare of all employees. The trend towards the inclusi on of safety provisions in subcontract agreements can probably be attributed to the de cline of self-performed work by the general contractors and an increase of subcontracted labor, as well as a conc erted effort to improve safety performance. General contractors are beginning to evaluate their own safety standards and practices and demanding that the same safety standards be comp lied with by their subcontractors. The safety provisions may simply require th at subcontractors comply with existing rules and regulations such as those of OSHA, the Environmental Protec tion Agency, or other app licable state and local laws or ordinances. In some instances the cont ractor will even include its own company policies that are stricter than existing governing laws. While some general contractor s still do not include safety clauses in their subcontract agreements for fear of inadvertently assuming greater liability (taki ng control of means and methods), studies have shown that a proactive and demanding employer for the protection of the health and safety of employees, results in safer jo bsites with less injuries and fatalities than jobs where employers are not involved w ith safety (Huang and Hinze, 2006). My study is an examination of the extent to which general contra ctors address safety within their subcontract pr ovisions and the implication for safety on jobsites.

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15 CHAPTER 2 LITERATURE REVIEW Construction Industry Safety In 2004, the construction industry accounted for 22,360, or 57.1%, of all Occupational Safety and Health Administrati ons (OSHA) inspections. This was followed by manufacturing with 8,755 inspections (22.4%). Of the constructi on violations found, 71.1% were classified as serious where there is substant ial probability that death or se rious physical harm could result and that the employer knew, or should have known, of the hazard (OSHA Facts 2005). The construction industry also accounts for approximately 20% of all industrial worker fatalities and 9.8 % of the non-fatal injuries. Th ese statistics are partic ularly staggering when it is taken into account that the construction indus try only employs 5% of the industrial workforce (Hinze 1997; 2004 Survey 2005). The construction industrys safety record has not improved as much as it needs to and it still accounts for a disproportionately high percen tage of worker fatalities and injuries. The construction industry has approxima tely 50% higher injury rates than all other industries (Huang and Hinze 2006). Occupational Safety and Health Act A major step towards creating a safe worki ng environment was the passage of the OSHAct of 1970. This act provides specific prescriptive safety measures to be complied with by the employers in the private sector wi th specific regulations for the c onstruction industry. In Section 5a, the OSHAct outlines the ethical duties of the employer, stating: Each employer shall furnish to each of his employees empl oyment and a place of employment which are free from recognized hazards that are causing or are likely to cau se death or serious physical harm to his employees

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16 The OSH Act also created the Occupational Safety and Health Ad ministration (OSHA), which has the following mission: OSHA's mission is to assure the safety and h ealth of America's wo rkers by setting and enforcing standards; providing training, outreac h, and education; esta blishing partnerships; and encouraging continual improvement in workplace safety and health (www.osha.gov). OSHA accomplishes this mission by investigatin g workplaces and enforcing the regulations stipulated under the OSHAct. Violators are subject to fines, the amount of which is determined by the severity of the offense. OSHA also assists companies in compliance through various programs and safety training and education centers (www.osha.gov). Contractual Agreements The Occupational Safety and Health Admi nistration defines th e responsibilities of subcontractors and general contra ctors in OSHA standard 1926.16(c) To the extent that a subcontractor of any tier ag rees 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 cont ractor assumes the entire resp onsibility under the contract and the subcontractor assumes responsibility wi th respect to his portion of the work. With respect to subcontracted wo rk, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility. In the somewhat conflicting OSHA standard 1926.16(a), the general contractor and the subcontractor are allowed some flexibility for determ ining the obligations of each party; but it is clear that the general cont ractors obligations remain intact in the event the subcontractor fails to suitably execute the contracted requirements. The prime contractor and any subcontractors may make their own arrangements with respect to obligations which mi ght be more appropriately trea ted on a jobsite basis rather than individually. In no case shall the pr ime contractor be relieved of overall responsibility for compliance w ith their part for all work to be performed under the contract. The reason OSHA allows the contractor and subcontractor to determine obligations and roles on site concerning safety is because of th e dynamic nature of construction projects. The

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17 responsibilities are usually outlined in the subcon tract agreements and are established before the start of construction. Whether a por tion of the work is subcontracted or not, the prime contractor is held accountable to OSHA for compliance wi th the regulations. Often, the subcontract agreement includes provisions that are addressed in the contract that exis ts between the general contractor and the owner. The intent of such provisions is to "shuffle, shift, and ultimately allocate primary responsibility" for safety on the j obsite (Smith et al., 2005). While the ultimate goal of the contractual agreements is to assign liability to one or more parties, the inclusion and more importantly the execution of some safety pr ovisions does aid in better safety performance. Factors Affecting Jobsite Safety No known studies have been specifically c onducted to assess the inclusion of safety provisions in subcontract documents. Howe ver, studies have been conducted on the effectiveness of actual safety prac tices of general contractors and owners. Some of these studies have also examined the subcontractin g arena, albeit to a limited extent. Subcontractor/General Contractor Relationship Several construction safety studies have been conducte d by the Construction Industry Institute (CII), a consortium of approximately 50 contractors and 50 fac ility owners that has funded studies in many aspects of constr uction including productivity, quality, safety, technology, etc. In one study funded by the CII it was found that subc ontractors had better safety performance when the general contractor: provided a full time project safety director, discussed safety at coordination me etings and pre-job conferences, monitored project safety performance, insisted on full compliance with the safety regulations, and had top management involved in project safety (Hinze and Gambatese 2003).

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18 Furthermore, in a study conducted by Hinze (2003), it was conclude d that the more frequently workers had safety training, the better the safety pe rformances were. It was also discovered that when general contractors included subcontractors employees in wo rker orientation, better safety records resulted. Better safety practices were al so observed if the worker orientation was formal in nature. General Contractor/Owner Relationship In another study conducted involving safety re quirements that the owner placed on the general contractor, many differe nt safety practices were found to have a positive impact on safety performance (Huang and Hinze 2006). So me of these safety practices included: the contractor was required to place at leas t one full-time safety representative on site, the contractor was required to submit the resume s of key safety personnel to be assigned to a project for the owners approval, the contractor must provide specified mi nimum safety training to workers, the contractor must submit a site-specific safety plan, the contractor must submit a safety policy signed by the CEO, the contractor must include emerge ncy plans in the safety program, the contractors must conduct daily job safety analysis, and the contractors must implement a drug abuse program. Subcontracts and Safety The application of proven safety methods is especially important for subcontractors, especially because they gene rally perform 80-90% of the act ual construction work. As mentioned before, the general contractor can have a positive impact on subcontractor safety performance by implementing proven safety techni ques. The general cont ractor can initially address safety issues in the subcontract agreem ent. A subcontract agreement, once mutually

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19 agreed upon, effectively becomes enforceable by law. Therefore, including safety provisions in a contract (as long as they are not in conflict with existing laws) essentially creates a new 'law'. Most subcontract agreements address safe ty to some extent, and it is common for contractual agreements to reference existing la ws and regulations. One of the most common provisions found is for the subcontractor to comply with the OSHA regulations. However, such provisions only require compliance that is already demanded by law. Most subcontract agreements do not include substantial provisions that place more rigorous safety standards on the subcontractors and their employees (Hinze 1997).

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20 CHAPTER 3 METHODOLOGY Introduction With the passage of the Occupational Safety a nd Health Administration (OSH Act), stricter regulations were placed on employe rs and the extent of their effo rts to protect the safety and welfare of their workers. At their commenc ement, the OSHA Standards were grudgingly and slowly implemented in the construction industry. Now contractors are taking more proactive meas ures in advancing the cause of safety. Contractors are increasingly in cluding provisions related to safety in their subcontract agreements. By including safety provisions, assuming they do not conf lict or undermine existing laws, the contractor is either reinforcing the ex isting laws of governing bodies or placing even stricter requirements on their jobs. Essentially, general contractors are fashioning safety laws for their projects. This chapter focuses on how the study of safety in subcontract agreements was conducted. Subcontract Agreements Laws that were created, or whose importance were reinforced by contractual agreements between a general contractor and subcontractor were the main focu s of this study. The following details describe how the study of safety in subcontract agreem ents was conducted. Obtaining Current Subcontract Agreements This study was focused on the topic of safety as addressed in subcontract agreements; therefore it was necessary to obt ain a collection of subcontracts that would reflect a good crosssection of the construction indus try. Subcontract agreements we re collected through different means to evaluate and enumerate the inclusion safety in their provisions. A total of 37 subcontract agreements were so licited from willing pa rticipants of The Florida Roofing, Sheet

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21 Metal and Air Conditioning Contra ctors Association (FRSA) as we ll as local Gainesville, Florida subcontractors. Some subcontract agreements were also provided by general contractors in Jacksonville and Orlando, Florida areas. Obtaining Historical Subcontract Agreements Subcontract agreements were also obtained to perform a brief historical comparison with the agreements that are currently being used in the construction industry. These documents were obtained from an archival record maintained at the M.E. Rinker Sr. School of Building Construction at the University of Florida. Select documents were chosen from the years 19881990. Establishing the Validity of the Subcontract Agreements After evaluating the 2004-2006 s ubcontract agreements, it was found that only 33 out of the 37 agreements were valid for this study. Four subcontract agreements were determined to be invalid for the purpose of this study because: one was a contractual agreement between an owner and a general contractor, two subcontract agreements were found to be incomplete as they only included the scope of work, and one subcontract agreement consiste d of only the odd numbered pages. No subcontract agreements were discounted beca use of their lack of safety provisions as the purpose of this study was to determine the current trends for the inclusion, or lack thereof, of safety provisions in contractual agreements for subcontracts. The general contractors who had adopted the subcontract agreem ents were found to vary in size. Of the 33 agreements used in this study, ten general contractors we re in the Engineering News Record's Top 400 Contractors list. The remaining general c ontractors varied in size from local area state contractors to regional contractors.

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22 Data Coding Sheet Development To quantify the various safety provision inclus ions in the subcontract agreements, a data coding sheet was developed. After the categories were all identified, the subcontract agreements were examined again and all safety provisions were coded in the data base. This made the data conducive to analysis. Compiling a List of Safety Provisions In order to create a list of sa fety provisions to be analyzed, each contract was read in its entirety and all safety provisions were highlighted. A list of provi sions was then generated of all those that were found within th e subcontracts. All provisions that were obscure and only occurred in one subcontract agreement were set aside as extraneous, and would noted as anomalies found within agreements. Organization of the Provisions The safety provisions found in multiple agreements were organized into categories. The categories that the safety provisions were divided into were as follows: General Provisions Safety Provisions: General Compliance with Laws and Regulations General Contractor's Rights Programs, Submittals, and Requirements by Law General Safety Drugs and Alcohol Hazardous Substances Safety Meetings and Training Detailed Safety Requirements Personal Protective Equipment Barricading Other Each of the safety provisions was placed into the appropriate category. Each subcontract agreement was evaluated and all sa fety-related provisions were exam ined. Each of these safety

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23 related provisions were noted as being incorporated in the resp ective subcontract agreements. A matrix was created detailing if the provisions were included in a particular subcontract agreement or not. Because the wording of the subcontract agreements did vary, the exact wording of these provisions was not incl uded, but only the over all intention. Vague provisions were not categorized into sp ecific groups. For inst ance, one subcontract agreement stated, "The Subcontractor shall see to it that their jobsite supervisor is adequately trained in the proper and safe use of sca ffolding, ladders, power tools, and motorized equipment," while another stated, "The Subcontr actor shall designate a 'competent' person as defined by OSHA." While the second provision is mo re specific and refers to the legal status on a company employee as defined by OSHA, the form er provision also requires that there be a person on site responsible for safety. For the pur pose of this study both of these provisions were considered to be comparable. In cases where su ch differences occurred between the phrasing of provisions, they were coded for their intentions. The differences in phras ing are discussed in the results section of this study. A supplement to the data coding sheet was also created, listing the pr ovisions that were unique, namely those found in only one contract. These safety provisions were generally very detailed in their requirements. They are included in a section at the end of the Results chapter. Safety Programs Some of the subcontract agreements also in cluded additional safety requirements in the form of addenda. Some of these addenda include d: company safety programs, site specific safety policies, drug and alcohol policies, and hazardous communica tion and substan ces policies. These documents were evaluated separately from the data coding sheet. The reason they were not included in the coding is because some of the subcontract agreements mentioned the inclusion of additional addenda, however, these were not submitted with the subcontracts.

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24 Therefore, a case study was conducted on an additio nal safety addendum. It was evaluated in terms of its safety requirements and whether or not they demanded stricter safety practices than those mandated by the Occupational Sa fety and Health Administration. OSHA Standards After the subcontract agreements were comp iled and coded for the inclusion of safety provisions, they were compared to the require ments set by the Occupatio nal Safety and Health Administration (OSHA) Standard s for the Construction Industr y, Part 1926, and Industry in general, Part 1910. It was then determined wh ether or not the provisi ons established by the general contractors were more st rict than those of OSHA.

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25 CHAPTER 4 RESULTS Introduction This chapter presents the results of the analys is of the information obtained from the data coding sheet used for the subcontract agreements, as well as an historical comparison. Sections one through seven present information on groupings of related provisions and a comparative analysis of the provisions from the 2004-2006 subc ontracts. The information on the frequency of use of these provisions is prov ided as well as actual examples of the provisions found in the documents. The item number provided after ea ch provision type is the corresponding coding sheet number that can be found in Appendix A. Section eight is a br ief discussion of the miscellaneous safety provisions that did not recu r in multiple provisions. Section nine is a discussion of changes of the inclusion of sa fety provisions since a pproximately 1990. This comparison was made using a select group of s ubcontract agreements that were used in 19881990. Section 1General Provisions The following section is a comparative analysis of provisions that ar e peripherally related to safety. These provisions were typically f ound in the general requirements section of the subcontract documents and not found under a safet y subheading. Provisions related to daily trash removal, protection of work, potable water, toilet facilities, and electricity are included in this section. Protection of Work Generally the protection of work clause only includes protection of the subcontractor's work, other subcontractors work, and an agreemen t to restore any damaged work at no cost to the general contractor. When worker safety is included in this provi sion it demonstrates an

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26 attempt to include the safety of workers that usually only addresses protecting work to prevent damage or delays. As shown in Figure 4-1 a protection of work clause that included the protection of workers (item 1) was only found in one of the 33 subcontract agreements. The exact provision is as follows: RESPONSIBILITY FOR SUBCONTRACTORS WORK Subcontractor further agrees to provide such protection as is necessary to protect the Project and the workers of the Contractor, Owner and other subcontractors and adjacent property from Subcontractor's operations. (italics added) This provision could encompass a variety of safe ty measures that need to be taken by the subcontractor. For instance, removing trash fr om the upper floors of a building could require such measures as erecting barri cades to prevent workers from walking through areas where there is falling debris or installing trash chutes to safely remove debris from the upper stories. Providing Potable Water for the Jobsite Potable water is defined by the Occupation Sa fety and Health Administration in 29 CFR 1926.51(a)(6) as: water which meets the quality standards pres cribed in the U.S. Public Health Service Drinking Water Standards, published in 42 CF R part 72, or water which is approved for drinking purposes by the State or local authority having jurisdiction. 29 CFR 1926.51(a) outlines the requirements pe rtaining to potable water as follows: An adequate supply of potable water shall be provided in all places of employment. Portable containers used to dispense dri nking water shall be capable of being tightly closed, and equipped with a tap. Water shall not be dipped from containers. Any container used to distribute drinking water shall be clearly marked as to the nature of its contents and not used for any other purpose. The common drinking cup is prohibited. Where single service cups (to be used but once) are supplied, both a sanitary container for the unused cups and a receptacle for dispos ing of the used cups shall be provided.

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27 Five subcontract agreements placed the oblig ation for providing potable water exclusively on the subcontractors (item 3) a nd four placed this requirement on the general contractor (item 2). One of the subcontract agreements stated th at the general contractor would provide potable water, but should the potable water for any reason become unavailable that it was the subcontractor's duty to provide potable water for it s workers. Twenty four of the subcontracts do not directly address the responsib ility of providing potable wate r for the workers (Figure 4-2). On the jobs where the general c ontractor contractually agreed to provide potable water, the subcontractor could usually safely assume that that legal obligation would be carried out by another party. However, if the general cont ractor failed to abide by the agreement, the subcontractor would still be legally responsible for pr oviding potable water and its accoutrements for its own employees. In the subc ontract agreements wher e the subcontractor is explicitly required to provide pot able water, it is simply a restatement of the existing OSHA regulations. In the subcontract agreements wher e neither party is explicitly listed as being responsible for providing the potable water, then by law, both bear some of the responsibility of ensuring that water is provided for the employees. That is, when this issue is not addressed in the subcontract, the default obligat ion would be that all employers must provide water for their own employees. Providing Toilets for the Jobsite OSHA requires employers on construction jobsites to provide toilet facilities based on the number of employees as outlined in section 1926 .51(c). If there are 20 employees or less on a jobsite then one toilet is required, if there is 20 or more, then one to ilet and one urinal is required for every 40 workers. If there are more than 200 employees on a jobsite, then one toilet and one urinal is required for every 50 workers.

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28 As shown in Figure 4-3, it was found in the subc ontract agreements that 7, or 23%, stated that the general contractor would provide toilet faci lities (item 4) and in tw o it was stated that the subcontractor was responsible for providing its own facilities (item 5). Again, one agreement stated that the general contractor would provi de toilet facilities, but should they become unavailable, it was the su bcontractor's responsibility to supp ly facilities for its own employees. One of the two subcontract agreements did not explicitly require the subcontractor to provide toilet facilities, but onl y the necessary "tempor ary utilities" to get the job completed. Twenty-three of the subcontract agreements did not directly address whose duty it would be to provide the toilets. Providing toilet facilities is required by law, and therefore even if neither party is designated as being responsible for them both the general contractor and subcontractor are mutually responsible. This shared responsibi lity is clearly stated in the OSHA regulations in the OSHA Rules of construction, section 1926.16. Providing Electric for the Jobsite Four of the agreements required the general c ontractor to provide el ectricity for the job (item 6) and three required the subcontractor to provide their own electric ity for their portion of the work (item 7). This means that 26 of the s ubcontract agreements did not explicitly address who was to provide electricity on the project (Fig ure 4-4). When neither the general contractor nor the subcontractor is listed as the provider for the electric pow er on the job, th e subcontractors must assume that they are requir ed to provide it for their own re spective portions of work. Note that OSHA might not consider this to be a direct safety issue. There is no specific OSHA regulation th at requires the employer to provide electricity/power on the construction site. However, this provision can be related to safety in a variety of ways. Temporary and/or permanent power is necessary to adequately light work areas

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29 for safe performance. It is also necessary to provide power for equipment, such as fans, to properly ventilate work areas. Thus, the power re quirements have direct implications for safety. Providing Trash Removal/Dum psters for the Jobsite The removal of trash is addressed by the Occ upational Health and Safety Administration in Subpart C, 1926.25(c): Containers shall be provided for the collec tion and separation of waste, trash, oily and used rags, and other refuse. Contai ners used for garbage and other oily, flammable, or hazardous wastes, such as caustics, acids, harmfu l dusts, etc. shall be equipped with covers. Garbage and other waste shall be disposed of at frequent and regular intervals. Out of the 33 subcontract agreements, six expl icitly stated that it would be the general contractor's duty to provide dumpsters/trash rem oval (item 8) and one of the agreements said it was the subcontractor's obligation (item 9)(Figur e 4-5). In the absence of a provision in the agreement, the subcontractor cannot assume that this duty will be undertaken by the general contractor as the subcontractor has an equal responsibility. Ho wever, generally this duty is carried out by the general contractor for efficien cy and due to the number of subcontractors that are typically onsite. It is not reasonable to require each subcontractor to be responsible for providing trash receptacles for their own waste because of the space constraints found on many jobsites. Section 2Safety Provisions: General The following section discusses provisions f ound in the subcontract agreements that directly addressed safety. The provisions discussed below related to liability, safety compliance, safety supervisory roles and responsibilities, clean liness, worksite conditions and injuries. While these provisions were directly re lated to jobsite safety, they we re not provisions that described methods to provide for worker and jobsite safety.

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30 Indemnity Clause Twenty eight (84.8%) of the subcontract agreements ev aluated had a generalized indemnity clause, however only 15, or 45.4% contai ned an indemnity clause that was mentioned within the safety provision that directly rela ted to safety violations Two contracts also contained a mutual indemnity clause (items 10a, 10b, 10c) (Figure 4-6). The indemnity provisions are not included as a wo rker safety measure, but as a way to prevent legal action that may be taken against the general contractor should an accident occur. Contract Compliance Only three of the subcontract agreements contained a provision re quiring subcontractors and suppliers hired by the subcont ractor to abide specifically by the safety provisions contained within the subcontract agreement; however, five required the subcont ractor to include the entire subcontract as part of the agr eement between it and its subcontr actors and suppliers (items 11a, 11b) (Figure 4-7). Only two of the subc ontracts contained a provision requiring the subcontractor to comply with safety regulations contained in the prime c ontract, or the contract between the contractor and owne r. Again though, twenty six c ontained provisions incorporating the prime contract as part of the subcont ract documents (item 12a, 12b) (Figure 4-8). When such provisions are mandated in subcont ract agreements they may also be found within the prime contract, or th e contract between the general c ontractor and the owner. This creates a chain of responsibi lity, from the general contra ctor to the lowest tiered subcontractor/supplier, to abide by the contents of the prime contra ct. An example of a typical provision that requires the subc ontractor to comply with safe ty provisions within the prime contract is as follows: Subcontractor shall be responsible for in itiating, maintaining a nd supervising safety precautions and programs in connection with th e Work performed or to be performed by

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31 its employees and its subcontractors' employees : (I) as stated in the general conditions of the General Contract An example that explicitly requires compliance with safety from all workers, subcontractors, and suppliers whether or not di rectly hired by the gene ral contractor is as follows: Subcontractor shall adopt Contractor's Safety Policy attached hereto as Exhibit "I" or a substantially similar policy for its own empl oyees, agents and representatives who come onto the job site and shall require its subcont ractors and suppliers of any tier who come onto the job site to do likewise The general provisions that requir e the subcontractor to incorporat e the entire agre ement in lower tiered contractual agreements can be found in the scope of work provision or elsewhere in the contracts that also requires comp liance with the prime contract. They would ultimately have the same effect as requiring the subc ontractor to have its suppliers and subcontractors abide by the contractors safety regulations. General provis ions were found more often than one relating specifically to safety but ultimately general provisi ons have the same effect as one specifically requiring lower tiered subcont ractor compliance with the safety provisions. Responsibility for Safety Fourteen (42.4%) of the agreements containe d a provision where the general contractor stipulated the subcontractor as th e sole entity responsible for the health and safety of employees (item 13). This included not only their employees but also the employees of other subcontractors and those of the owner who may be affected by or in the vicinity of the subcontractor's work. Seven of the subcontracts also contained a provi sion stating that the s ubcontractor would not permit its workers to work in unsafe conditions (item 14). Figure 4-9 enumerates the inclusion of provisions delineating the subcon tractor's responsibility for safe ty. This provision reinforced the first provision by placing responsibility on the subcontractor for identifying what constituted a safe working environment.

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32 Conversely, the provision that required the subcontractor to stop work if the general contractor deemed it unsafe (item 15) did place some responsibility for the safety and welfare of workers on the general contractor. As shown in Figure 4-10, three of the four subcontract agreements that contained the pr ovision requiring the st oppage of work if th e general contractor deemed it unsafe also stated that the subcontractor was responsible for safety and health at all times. The inclusion of both these provisions is somewhat contradictory, allowing both the subcontractor and general contractor to determine what is safe. However, one general contractor tried to dismiss this contradict ion by including the following clause in its subcontract agreement: Failure on the part of Contract or to stop unsafe practices shall, in no way, relieve Subcontractor of its responsibility. An example of a provision found in one of th e subcontracts that places full responsibility for safety on the subcontractor was: Subcontractor is fully responsible for, and sh all ensure, the safety of persons and property in connection with the Work. A more proactive provision that focused less on li ability and emphasized the promotion of safety and welfare stated the following: The subcontractor agrees to take all necessary steps to promote safety and health on the job site. While many general contractors attempted to as sign to the subcontractor s the responsibility for safety, according to the Occupational Safety and Health Administra tion Standards (29 CFR 1926.16(a)) this is not entirely possible. The prime contractor and any subcontractors may make their own arrangements with respect to obligations which mi ght be more appropriately trea ted on a jobsite basis rather than individually. ... In no case shall the prime contractor be re lieved of overall respons ibility for compliance with the requirements of this part for a ll work to be performed under the contract.

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33 The provisions that probably most effectively aid in the cause of safer work practices are those which address safety in a more proactive manner and less as an obligation which one party is trying to evade. Cleanliness and Safety Provisions relating to the daily removal of trash and debris were generally addressed under a "clean-up" or housekeeping subheading. Ou t of the 33 subcontract agreements 30, or 90.9%, included a general clean-up provision with no mention of safety (item 16). The main intent of such provisions is to maintain a clean and orde rly working area. This prevents the buildup of debris that the general contractor may then have to take the onus of clearing. This is especially true when there are a large number of subc ontractors on a jobsite at any given time. A typical clean-up provision as found in one of the subcontract agreements is as follows: Subcontractor shall, at its own expense keep the premises at all times free from waste materials, packaging and other debris accu mulated in connection with the Work by collecting and removing such debris from th e job site on a daily basis or other basis requested by Contractor. While the inclusion of this provi sion is usually to prevent subcont ractors from leaving the job in disorder, it also helps to crea te a safer jobsite by keeping the work area free of obstructions and obstacles, allowing tasks to be ca rried out safely and efficiently. Figure 4-11 shows the relationship found between the general cleanup provisions and the cleanup provisions with a specifi c emphasis on safety. Only one subcontract agreement did not have either provision. Eight ( 24.2%) of the subcontract agreements specifically referenced good housekeeping with an emphasis on safety (item 17) This provision was contained within the safety section of the subcont ract agreement as opposed to the housekeeping section. They specifically required the work ar ea to be maintained in a "saf e and clean" condition. This

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34 provision is merely a restatement of 29 CFR 192 6.25(a) in the Occupationa l Safety and Health Standards requiring that: During the course of construction, alteration, or repairs, form and scrap lumber with protruding nails, and all other de bris, shall be kept cleared fr om work areas, passageways, and stairs, in and around buildi ngs or other structures. Including a provision calling for th e maintenance of a safe and cl ean jobsite does not impose any stricter obligations on th e subcontractor than thos e already required by law. Safety Supervisor Seven of the 33 subcontract agreements required the subcontractor to have a person on site who was responsible for the health and safety of its employees. Four other agreements specifically required the person responsible for sa fety to be 'competent' as defined by OSHA (items 18a, 18b) (Figure 4-12). An example of a provision that explicitly defined the person who the subcontractor shall provide to oversee safety was: Subcontractor's Work shall be directed and supervised by a competent person as defined by OSHA. Such competent person shall have a thorough knowledge of the OSHA regulations and shall be present at the Projec t site at all times that Subcontractor's Work is in progress. OSHA defines competent person in 29 CFR 1926.32( f) as "one who is capable of identifying existing and predictable hazards in the surroundin gs or working conditions which are unsanitary, hazardous, or dangerous to employees, and who ha s authorization to take prompt corrective measures to eliminate them." Often it is the su bcontractor's foreman or superintendent that is designated as the competent person since as per th e OSHA definition, they mu st be authorized to stop work in order to take correctiv e action for unsafe jobsite conditions. Other examples of provisions that do not directly reference compliance with OSHA standards when designating a worker as responsible for safety were: Subcontractor will agree to provide responsible supervision for this work.

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35 The Subcontractor shall see to it that their j obsite supervisor is ade quately trained in the proper and safe use of scaffolding, ladders power tools and motorized equipment. Prior to commencing its Work at the job site Subcontractor shall de signate a responsible employee at the site whose duty shall be the pr evention of accidents. This employee shall be the Subcontractor's job superintendent (o r foreman, if there is no superintendent) The last two provisions very expl icitly defined the safety roles that the jobsite supervisors were expected to fill while the first provision made no specific mention of safety, but only 'supervision' for the work. The provisions that directly addressed safety and delineated the responsibilities that the subcontractors' foremen must be capable of exec uting would be expected to result in better safety performance. Notification of Unsafe Work Conditions As shown in Figure 4-13, nine of the 33 s ubcontract agreements contained provisions requiring the subcontractor to notify the genera l contractor if hazar dous or unsafe jobsite conditions existed (item 19). One such provision that took a very proa ctive stance concerning safety was: Safety is a concern to all of us. If you feel there is a problem in some area, please notify Contractor's Superintendent immediately. This particular provision was th e leading clause of the Genera l Requirements Scope of Work Attachment for the subcontract agreement. Placi ng safety as the number one value in the Scope of Work emphasized its importance. The purpose of immediately notifying the general contractor assures that prompt corrective measures can be taken to abate the hazards and/ or unsafe conditions. Another, less altruistic motive for the inclusion of such a provision is so that not only can the gene ral contractors and/or subcontractors remedy the unsafe worksite, but also to prevent employee complaints to agencies such as OSHA. According to OSHA 29 CFR 1960.28(c)

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36 Any employee or representative of employees who believes that an unsafe or unhealthful working condition exists in any workplace wh ere such employee is employed, shall have the right and is encouraged to make a repor t of the unsafe or unhea lthful working condition to an appropriate agency safety and health official and request an inspection of such workplace for this purpose. By taking prompt action to correct unsafe or unhe althful work conditions, the general contractor and subcontractor can avoid any fines or shut downs that could result from an OSHA inspection. Jobsite Injuries Nine of the 33 subcontract agreements contai ned provisions that requi red the subcontractor to notify the general contractor of any injuri es. Figure 4-14a shows the breakdown on the time the subcontractor has to report th e injuries. Six required the inju ries to be reported immediately, two required them to be reported within 24 hours, and one required any injury to be reported within three days (items 20a, 20b, 20c). Of thos e nine agreements, six re quired the subcontractor to also complete an accident repo rt to submit to the general cont ractor (item 21) (Figure 4-14b). One subcontract agreement that contained both provisions stated: The Subcontractor shall report to the Contractor within 24 hour s an injury to an employee or agent of the Subcontractor which occurred on the site. Subcontractor shall furnish the Contractor within three (3) days of any accident(s) occurring on the job, two copies of a comp leted accident report in the form usually required by Worker's Compensation, Public Li ability and Property Damage insurance policies. The general contractor can have many differe nt motivations for wanting the subcontractor to report any injuries that occur on the jobsite. The general contractor may want to be advised of any injuries for insurance purposes, to perform an accident investigation (and take any corrective measures to prevent further accidents), or to have the data available shou ld OSHA investigate. Also, depending on the severity of the accident, th e general contractor may need to arrange for medical assistance. Should OSHA investigate the accident/injury, it is beneficial for the contractor to have pertinent information on hand. A ccording to OSHA standard 29 CFR

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37 1960.29(d) "the investigative report of the accide nt shall include appropriate documentation on date, time, location, description of operations, desc ription of accident, photographs, interviews of employees and witnesses, measurements and other pertinent information." A provision that addresses more immediacy fo r reporting injuries would be more suitable for investigation purposes as well as to provide any necessary medical atte ntion. An example of a provision that mandated this was: Subcontractor shall notify Contractor imme diately following any accident and promptly confirm the notice in writing. This provision expresses the seriousness and impor tance of safety by requiring the subcontractor to report accidents without de lay. It does not allow a window of time for reporting and may dissuade the practice of non-reportin g or under-reporting of injuries. Section 3Compliance The following section is a comparison of thr ee safety provisions that are related to compliance with applicable laws and safety recommendations. The thr ee provisions discussed required compliance with: Laws, ordinances, rules and regulations OSHA, and Reasonable recommendations of insurance companies. Applicable Safety Laws and Regulations Twelve of the 33 subcontract agreements in cluded a provision requi ring the subcontractor to comply with applicable safety laws, ordinances, rules and regulations. Twenty one agreements require the subc ontractor to comply with all laws, ordinances, ru les and regulations. Nine agreements contain both iterations (item 22a, 2b) (Figure 4-15). Twenty one (63.6%) required the subcontractor to comply with th e OSHA Regulations (item 23). One of the two agreements that required the subcontractor to co mply with reasonable safety recommendations of

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38 their insurance companies also included complia nce with OSHA (item 24) (Figure 4-16). One of the 33 contracts included all three of these provisions. Two exampl es of provisions that required subcontractor compliance with differe nt safety regulating entities were: Subcontractor shall comply w ith the reasonable recommendations of insurance companies having an interest in the Project Subcontractor shall take safety precauti ons with respect to performance of this Subcontract, shall comply with applicable laws ordinances, rules, re gulations and orders of OSHA and public authorities for the safety of persons or property on the project. The first provision required the subcontractor to enact the safety recommendations of its insurance company. Some insurance companies ar e more involved with their client's safety performance. These proactive insurance comp anies may make jobsite inspections and offer recommendations for safer job performance. Re quiring the subcontractor to comply with the insurance carrier's recommendations does go bey ond what is required by law; however, liability for safety may then be shifted. This shift in liability would be due to the insurance company assuming the responsibility of ensuring a safe jobs ite. It could also then be argued that the general contractor is liable by mandating th at the subcontractor comply with the recommendations of the insurance company. The second provision required subc ontractor compliance with applicable safety laws and regulations. Requiring the subcont ractor to comply with OSHA or existing laws for the area where the work is performed does nothing more than reinforce safety performance measures mandated by law. The general requirements of OSHA are outlined in 29 CFR 1926.20(a)(1): Section 107 of the Act requires that it shall be a condition of e ach contract which is entered into under legislation subject to Reorganiza tion Plan Number 14 of 1950 (64 Stat. 1267), as defined in 1926.12, and is for construction, alteration, and/or repa ir, including painting and decorating, that no contractor or subcontractor for any part of the contract work shall require any laborer or mechanic employed in th e performance of the contract to work in surroundings or under working conditions whic h are unsanitary, hazar dous, or dangerous to his health or safety.

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39 In summation, OSHA requires all employers to pr ovide a safe and healthful work environment for all employees as well as necessary requisite training to maintain such an environment. The provision also requires compliance with all applicable safety laws. This can include any local or state laws. Incl uding provisions requiring confor mance with 'applicable laws, ordinances, rules, and regulations' only serves to reinforce legal safety requirements; however, if specific laws affecting the work of subcontractor s were presented to them for the local area, greater strides would be made fo r safer performance on the jobsite. This is especially true for subcontractors who may be from another area and may not be familiar with the local and state laws. For instance, including specific mention of laws such as Florida's Call-Before-You-Dig law required under the Underground Facility Damage Prevention and Safety Act would make the subcontractor aware of specific safety measures that needed to be taken into account for the state. This law requires anyone performing construction work to have all underground utilities marked for the duration of the project. Including specif ic laws pertinent to the subcontract agreement can only serve to reinforce and improve jobsite safety performance. Section 4General Contractor's Rights The provisions discussed in this section related to the gene ral contractors rights with regard to safety. These provisions allowed th e general contractor to intervene when the subcontractor failed at their dutie s and when jobsite safety was th reatened. One set of provisions allowed the general contractor to prohibit jobsit e access for safety violations. Other provisions discussed were related to enforcement of provisions the contractors rights to maintain jobsite safety at the expense of the s ubcontractor, and the contractors rights to instruct subcontractor employees.

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40 Restrict Job Site Access Figure 4-17 shows the inclusion of the provisions relating to the general contractors right to restrict jobsite access. Seven of the 33 subcontract agreements permitted the general contractor to bar workers from the site for sa fety violations, drug/alc ohol use, fighting, or possession of weapons (item 25) and two subcontract agreements permitted the Contractor to bar any party from the site who did not abide by or enforce safety polic ies established for the job site (item 26). The latter provision provides the ge neral contractor more authority for enforcing jobsite safety with both those who have privy of contract and those who do not. For instance, if a subcontractor's supplier is unloading materials in an unsafe manner, the general contractor can remove both the supplier and the party who is re sponsible for enforcing the safety policy (the subcontractor) from the premises. Three examples of typical provisions found within the subcontract agreements were: Anyone found on the jobsite under the influe nce (of drugs and alcohol) may be banned from this project. (Contractor may) (t)emporarily or permanently bar specific personnel from the site for reasons such as but not limited to the following: Drug or alcohol use Safety violations Fighting, possession of weapons Failure to cooperate with Contractor's supervisory personnel or to comply with project documents If Subcontractor, or any person w ho enters the job site under an employment or a direct or indirect contractual arrangement with Subcontractor, fails to enforce the said Safety Policy or substantially similar policy, Contractor shal l have the right to bar such party from the job site. These types of provisions serve to reduce the possibilities of accidents and injuries from occurring on the jobsite. They also are a means for the general contractor to reduce liability by not allowing such activities to ensue w ithout taking the proper corrective actions.

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41 Waiver of Provisions Four of the 33 subcontract agreements contai ned a stipulation stating that the general contractor's failure to enforce a safety provision is not a waiver of the provision. Six also contained general non-waiver provisions (items 27 a, 27b) (Figure 4-18). A typical provision that specifically mentioned safety was as follows: Contractor's failure to stop Subcontractor's unsafe practices shall not relieve Subcontractor of the responsibility therefore. This provision did not directly state that the general contractor's failu re to act is not a 'waiver' of the safety provisions. However, that is the intent of the clause. Anothe r provision that directly addressed the non-waiver of provisions was: The failure of Contractor to insist, in any one or more in stances, upon the performance of any of the terms, covenants or conditions of this Subcontract; or to exercise any right herein, shall not be construed as a waiver or relinquishment of such term, covenant, condition or right as resp ects further performance. The purpose for including provisions such as th is is to reduce liability for the general contractor should the su bcontractor fail to abide by any of the provisions, specifically if the general contractor fails to demand compliance with the provision. This is especially important with respect to safety performance since OSHA a llows the subcontractor and general contractor to somewhat define their job site safety res ponsibilities. However, the inclusion of such provisions does not do anything to enha nce job site safety performance. Maintaining a Safe Job Site Figure 4-19 shows that seven of the 33 subc ontract agreements contained provisions allowing the general contractor to take action to correct safety deficiencies at no cost to the general contractor or to withhol d payments until the subcontractor complied with job site safety requirements (item 28). Two examples of pr ovisions related to th e correction of unsafe conditions were:

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42 Should Subcontractor neglect to adopt such co rrective (safety) meas ures, Contractor may, but shall be under no obligation, to perform th em and deduct the cost from payments due or to become due Subcontractor. the Contractor without prejudice to any rights or remedies sh all have the right to any or all of the following remedies: b) contract with one or more additi onal contractors, to perform such part of the Subcontractor's Work as the Contractor shall determine will provide the most expeditious completion of the Work and charge the cost thereof to the Subcontractor; c) withhold payment of any moneys due the Subcontractor pending corrective action in amounts suffici ent to; cover losses and compel performance to the extent required by and to the satisfaction of the Contractor and Owner; and d) in the event of an emergency aff ecting the safety of persons or property; the Contractor may pro ceed as above without notice. The second provision was much more encompassi ng of the general cont ractor's rights to take corrective measures on the job site. The second provision also emphasized the importance of safety by permitting the general contractor to correct safety deficiencies immediately and without notifying the subcontractor. The general contractor's right to remedy safety deficiencies and backcharge for them makes it more likely that subcontractor's would be cognizant of maintaining a safe work environment, especially under threat of incurring ex tra costs that can be avoided. Instructing Subcontractor Employees Two of the 33 subcontract agreements had prov isions stating that th e general contractor would never give instructions to the subcontract or's employees except in emergencies (item 29) and three stated that the contractor would never instruct the subcontractor 's employees (item 30) (Figure 4-20). These provisions are only intended to shift liability. The intent of this provision is to make it clear that the general contractor is not direct ing the means and methods of the subcontractor. The inclusion of such provisi ons does nothing to aid in job site safety performance. However, the provisions that st ated that the general contractor will direct

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43 subcontractor's employees in an emergency did de monstrate the general co ntractor's concern for safety and well being of all workers on the site. Section 5Programs, Submitta ls, and Requirements by Law Safety program submission provisions and safety information submittals required from the subcontractor are discussed in this section. Pr ovisions mandating subcontractor compliance with the general contractors safety programs/policie s are also evaluated. There are two sections devoted to drugs and alcohol and two s ections discussing hazardous substances. Safety Information Submission Eight of the 33 subcontract agreements re quired the subcontractor to submit their company's general safety program. One of the tw o subcontracts that required the subcontractor to submit any additional safety information that the general contractor requested also required the subcontractor to submit the company safety program. Three subc ontracts specifically required project specific safety programs to be submitted by the subcontractor (items 31a, 31b, 32) (Figure 4-21). The establishment and maintena nce of a company safety program is required by OSHA standard 29 CFR 1926.20(b): Accident prevention responsibilities. (1) It shall be the responsibil ity of the employer to ini tiate and maintain such programs as may be necessary to comply with this part. (2) Such programs shall provide for freque nt and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers. The following are typical generic provisions th at required the subcontractor to submit its safety program to the general contractor: Subcontractor must have an esta blished safety program as well. and (the Subcontractor) will submit its own safety program, which shall be at least as stringent as Contractor's safety program.

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44 The requirements set forth by thes e provisions did not adequately address safety. They did not require the subcontractor to pr ovide a project specific safety program nor did it demand any conformity to safety standards such as the OSHA regulations. The following was a provision that required a more project specific safety program: Subcontractor shall establish a safety program implementing safety measures, policies and standards conforming to t hose required or recommended by government and quasigovernmental authorities having jurisdiction and by the Contractor and Owner, including, but not limited to, requirements im posed by the Contract Documents. This provision required the subcontra ctor to develop a safety progr am that would conform to the project requirements as well as comply with any government safety authorities for the area. This would include state and local agencies as well as OSHA. Establishing a safety program to conform to the requirements of this provision w ould more adequately pr epare the subcontractors and their workers for job specific safety hazards. Two of the subcontract agreements also requi red that any safety information the general contractor requested would be provided. One provision stated "and (Subcontractor) shall supply any requested safety information." The general contractor could have used this provision to require the subcontractor to submit any comp any safety information including, experience modification rates (EMR) or OSHA recordable injury rates. Both of these are measurements of a contractor's safety performance and are often us ed for pre-qualification and insurance purposes. The other provision found in the subcontract agre ements was more specific and required the subcontractor to submit evidence of safety co mpliance upon request. This provision would be more beneficial for current proj ect safety performance allowing th e general contractor to ensure that its subcontractors are in compliance with applicable safety standards.

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45 Contractor's Safety Policy Eighteen (54.5%) of the 33 subcont ract agreements required the subcontractor to comply with the general contractors sa fety policy (item 33). Also, nine (27.3%) of the agreements included additional addenda or attachments relate d to safety (item 34) (Figure 4-22). These attachments included safety policies, drug and al cohol abuse policies, or policies on hazardous substances. An example of a provision requiring subcontract or compliance with the general contractor safety policy was: Subcontractor will cooperate with Contractor on any overall safety program for the Project (including prevention and repor ting of substance abuse) This provision mandated subcontractor compliance on a safety program that was specifically designed for the project. Job sp ecific safety programs result in safer job performance. Not all of the safety attachments referenced in the provisions of the subcontract agreements were submitted to this study. Therefore, a review of only one of the attached general contractor's safety policies was conducted. A brief discussion of this safety policy can be found in Appendix C. Drug and Alcohol Policy Three of the 33 subcontract agreements cont ained a provision requi ring the subcontractor to comply with the general contractor's drug and alcohol policy (item 35) and another three contained a provision that required the subcontractor to implement and enforce its own substance abuse control program (item 36). Three subcontract agreements also required that none of the subcontractor's employees be under the influence, possess, or consume drugs or alcohol (item 37). Figure 4-23 shows the breakdown of the incl usion of drug and alcohol policy provisions in the subcontracts.

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46 An example of a provision requiring complian ce with the general contractor's drug and alcohol abuse policy was: The Subcontractor acknowledges the receip t of (Contractor's) "Safety, Health and Environmental Policy", "D rug and Alcohol Abuse Polic y" and "Sexual Harassment Policy". Subject to applicable law this Subc ontractor further agrees to be bound to these policies as a part of the supplemental and speci al conditions to the c ontract for construction of the project. A typical provision that required th e subcontractor to implement a safety program is as follows: If requested by Contractor, Subc ontractor agrees to implemen t, administer and enforce a substance abuse control program. Contractor shall have no responsibility with regard to such implementation, administration and enforcement. Both of these provisions did not explicitly state the control meas ures which must be taken with regard to the substance abuse programs. Drug and alcohol abuse programs could require prescriptive measures such as at-hire drug tes ting, random drug testing, or drug testing following accidents. It could also have included drug abus e education or programs to rehabilitate workers found abusing drugs and/or alcohol. Another provision that was more definitive in its drug and alcohol policy requirements was the following: Subcontractor agrees that no persons under it s employ shall bring ont o, possess, sell or use alcohol, narcotics, drugs (other than prescr iption drugs, provided the person in possession of the drug has a valid prescription in his or her name, or over-the-counter drugs which may be purchased legally by the person), or controlled substances while on the construction site, including parking lots, at any time, including all breaks and lunch periods. Subcontractor furthe r agrees that no persons under its employ shall report to, or commence, or continue to work while unde r the influence of alcohol or any drugs, regardless of whether those drugs were legally or illegally taken. Subcontractor otherwise agrees to comply with all applicable Federa l, State or other governmental requirements which may exist pertaining to alcohol and drug and related testing prog rams, as may be in effect or be required to be instituted. This provision specifically required the subc ontractor to know and determine whether its employees were under the influence of drugs and/ or alcohol while on the jobsite. Determining

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47 whether or not employees are impaired on the jobsite is very important for the safety and welfare of not only that worker, but thos e involved in work tasks with or near the impaired employee. Drug and Alcohol Laws Four of the 33 subcontract agreements requir ed the subcontractor to comply with Drug Free Workplace Statutes, specifically requiring compliance with Florida Statutes 440.101 and 440.102 (item 38) (Figure 4-24). Florida Statut e 440 is for Workers Compensation and has specific requirements for maintaining a drug fr ee work environment. Florida Statute 440.101 states the legislative intent for a drug free workplace: (1) It is the intent of the Legislature to promote drug-free workplaces in order that employers in the state be afforded the opportuni ty to maximize their levels of productivity, enhance their competitive positions in the mark etplace, and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents resulting from drug abuse by employees. It is further the intent of the Legislature that drug abuse be discouraged and that em ployees who choose to engage in drug abuse face the risk of unemployment and the forfe iture of workers' compensation benefits. (2) If an employer implements a drug-fr ee workplace program in accordance with s. 440.102 which includes notice, education, and pr ocedural requirements for testing for drugs and alcohol pursuant to law or to rule s developed by the Agency for Health Care Administration, the employer may require the em ployee to submit to a test for the presence of drugs or alcohol and, if a dr ug or alcohol is found to be pr esent in the employee's system at a level prescribed by rule adopted pursuant to this act, the employee may be terminated and forfeits his or her eligibility for medical and indemnity benefits. However, a drug-free workplace program must require the employer to notify all employees that it is a condition of employment for an employee to refrain fr om reporting to work or working with the presence of drugs or alcohol in his or he r body and, if an injured employee refuses to submit to a test for drugs or alcohol, the employee forfeits eligibility for medical and indemnity benefits. The following is an example of a provision that required complia nce with Drug Free Workplace statutes: Subcontractor shall comply with the provi sions of the Drug Free Workplace Statutes including, but not limited to, Sections 44.101 and 440.102, Florida Statutes, and shall implement and maintain a drug free environment.

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48 Including similar provisions in the subcontract agreements does not place any more stringent safety requirements on subcontractors than those already required by law. Hazardous Substance Laws Three of the 33 subcontract agreements contained provisions that required the subcontractor to abide by the contractor's h azardous communication program and three others required the subcontractor to provide their own hazardous communication program(items 39a, 39b) (Figure 4-25). Sixteen (48.5%) required co mpliance with MSDS requirements (item 40), 5 required proper disposal of hazardous substance (some citing applicable laws) (item 41), and 5 required the subcontractor to stop work and info rm the general contractor if asbestos or polychlorinated biphenyl or any other hazardous substance was found to be present (item 42). Figure 4-26 shows the overlappi ng occurrence of the inclusion of these three provisions. Including any of these provisions does not place stricter requir ements on the subcontractor and only restates the subcontr actors obligations to comply with existing laws. OSHA requires a hazardous material program under standard 29 CFR 1926.65(b)(1) which states: (i)Employers shall develop and implement a written safety and health program for their employees involved in hazardous waste operati ons. The program shall be designed to identify, evaluate, and control safety and health hazards, and provide for emergency response for hazardous waste operations. (ii)The written safety and health program shall incorporate the following: (A) An organizational structure; (B) A comprehensive workplan; (C) A site-specific safety and health plan which need not repeat the employer's standard operating proce dures required in paragr aph (b)(1)(ii)(F) of this section; (D) The safety and health training program; (E) The medical surveillance program; (F) The employer's standard operating pro cedures for safety and health; and (G) Any necessary interface between ge neral program and site specific activities.

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49 A typical provision that required the subcontractor to comply with the general contractor's hazardous communication program was: It is expressly understood and agreed that Subcontractor will comply with Contractor's "Hazard Communication Program," as outlined in Contractor's Subcontractor Safety Program. Requiring the subcontractor to comply with th e general contractor's hazardous communication program only reinforces existing laws. It also reli eves the subcontractor of having to create their own program. The provision provides for a unifo rm response from all workers and employees on the job site. Other provisions related to haza rdous materials on the jobsite were provisions related to material safety data sheet (MSDS) requirements such as the following: Subcontractor shall furnish a copy to Contractor the applicable Material Safety Data Sheets (MSDS) for all hazardous materials or chemical s used in connection with or consumed or incorporated into this Project as required by the Hazard Communication Standard of the Occupational Safety and Hea lth Administration (OSHA). Requiring the subcontractor to pr ovide MSDSs on all toxic and haza rdous substances that they bring on site is also only a reinforcement of existing laws Under OSHA standard 29 CFR 1910.1200(g)(1): Chemical manufacturers and importers shall obtai n or develop a material safety data sheet for each hazardous chemical they produce or import. Employers shall have a material safety data sheet in the workplace for each hazardous chemical which they use. The standard continues by stati ng all of the information that is required on the MSDS form, including but not limited to the common name, i ngredients determined to be health hazards, physical and chemical characteristics, signs of exposure, and the OSHA permissible exposure limit. There are also many different laws related to the proper disposal of hazardous substances. An example of a provision found in one of the subcontract agreements was:

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50 Subcontractor agrees not to dispose of any hazardous waste, asbestos, PCB's or VOC's, including but not limited to paints, solvents, cleaning compounds, degreasers, paint thinners, or any other associ ated products and their re spective containers in any dumpster(s) unless specifically designated for such purpose. All haul off and disposal of debris and hazardous waste shall be by Subcontractor in accordance with Specifications, Contract Docume nts, EPA, local, county and state and any other associated agencies. The illegal and inappropriate disposal of hazardous wastes can have adverse affects on the health and safety of the construction workers as well as any others who may come into contact with the substances without adequate prot ection. The disposal of hazardous substances also needs to be controlled to prevent detrimental affects on the environment. There are various laws that manage the disposal of hazardous substances. The Environmental Protection Agency (EPA) ha s established standards for the handling, transportation, and disposal of hazardous substanc es. The EPA also allows states to establish their own laws providing they are at least as stringent as those of the EPA. In conjunction with the EPA's laws, CERCLA gives further authority to the government to respond when necessary to provide hazardous waste clean up. It is a 'superfund' that the federal government can use for immediate response and then later pursue the part ies responsible for the contamination for up to three times the amount. By including a provision that specifically sites this law, the general contractor is making the subcontra ctor liable for any monies that they might otherwise try to recover from the general contractor for the s ubcontractor's inaction or improper disposal of hazardous substances. Lastly, OSHA also mandates proper disposal of hazardous and flammable substances (and other waste) in designated contai ners in standard 29 CFR 1926.25(c): Containers shall be provided for the collection and separation of waste, trash, oily and used rags, and other refuse. Containers used for ga rbage and other oily, flammable, or hazardous wastes, such as caustics, acids, harmful dusts, etc. shall be equipped with covers. Garbage and other waste shall be disposed of at frequent and re gular intervals.

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51 Also, OSHA regulation 29 CFR 1926.65 deal s with Hazardous Waste Operations and Emergency Response (HAZWOPER). This secti on is more specific with regards to waste disposal and references other regulations that need to be followed. OSHA also has established standards that delineate how common hazardous substances found on construction sites need to be stored and dispos ed of properly. One of the specific hazardous substances that OSHA addresses is asbestos. Standard 29 CFR 1926.1101 contains procedures for the protection of worker s and proper disposal or encapsulation of asbestos. A t ypical provision that required th e subcontractor to notify the general contractor of the pr esence of asbestos was: In the event the Subcontractor encounters on the site materi al reasonably believed to be asbestos or polychlorinated biphenyl (PCB) which has not been rendered harmless, the Subcontractor shall immediately stop Work in the area affect ed and report the condition to the Contractor in writing. A reason the general contractor may have requir ed notification of any asbestos present on the jobsite is because OSHA standard 29 CFR 1926.1101(d)(5) states that: All general contractors on a c onstruction project which includes work covered by this standard shall be deemed to exercise general supervisory au thority over the work covered by this standard, even though the ge neral contractor is not qualif ied to serve as the asbestos "competent person" as defined by paragraph (b) of this section. As s upervisor of the entire project, the general contractor shall ascertain whether the asbestos contractor is in compliance with this standard, and shall require such contractor to come into compliance with this standard when necessary. Therefore, if any asbestos is found on the job site, it is ultimately th e general contractor's responsibility to ensure that al l workers on the job site comply with OSHA standard 29 CFR 1926.1101. Permission for Hazardous Substances Three of the 33 subcontract agreements contai ned provisions requiring the subcontractor to give written notice of hazardous substances it will bring on site (item 43), four agreements

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52 required the approval of the architect or owner for hazardous substances to be brought on the job site, and one expressly forbid the subcontractor from bringing hazardous substances on the job site (items 44a, 44b). Figure 4-27 shows the allowances and permission required to bring hazardous substances on the job site. A hazardous substance is defined by OSHA in Standard 29 CFR 1926.65(a) (3) as any substance, exposure to which results or may result in a dverse affects on the health or safety of employees: (A) Any substance defined unde r section 101(14) of CERCLA; (B) Any biological agent and ot her disease-causing agent wh ich after release into the environment and upon exposure, ingestion, inha lation, or assimilation into any person, either directly from the environment or indi rectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral a bnormalities, cancer, genetic mutation, physiological malfunctions (i ncluding malfunctions in reproduction) or physical deformations in such persons or their offspring; (C) Any substance listed by the U.S. Department of Transportation as hazardous materials under 49 CFR 172.101 and appendices; and (D) Hazardous waste as herein defined. and, hazardous waste is defined as: (A) A waste or combination of wast es as defined in 40 CFR 261.3, or (B) Those substances defined as hazardous wastes in 49 CFR 171.8. An example of a provision that required the subcon tractor to forewarn the general contractor of hazardous substances that it ma y bring on site is as follows: If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by th e Subcontractor, the Subcontractor's Subsubcontractors or anyone directly or indirec tly employed by them, the Subcontractor shall, prior to harmful exposure of any employees on the site to such substance, give written notice of the chemical composition thereof to th e Contractor in suffici ent detail and time to permit compliance with such laws by the C ontractor, other Subcontractors and other employees on the site. Giving written notice to the general contractor allowed enough time for all other workers and subcontractors to receive noti ce and proper safety training fo r dealing with the hazardous

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53 substances. It also ensured that all applicable Material Safety and Data Sheets are available on the jobsite as required by the OSHA Standards. As a further step taken to control the hazardous substances that may be brought on site, six subcontract agreements included provisions mandating that no hazardous substances were allowed to be brought on site. A typical provision stated: The Subcontractor warrants and agrees that it will not introduce, rel ease, distribute, or otherwise cause the introducti on into any area, any toxic, pollutant, contaminate, or hazardous materials including but not limited t o, asbestos, fuels, pe troleum products, and PCB's. In some instances, this included a stipulation th at hazardous substances could be brought on site with the approval of the architect or owner. Section 6Safety Meetings and Training The following section is an analysis of provisi ons related to safety meetings and training. This included provisions requiring the subcontractor to conduct th eir own safety meetings and training as well as mandating th at the subcontractor attend those conducted by the general contractor. Conducted by Subcontractor Ten (32%) of the 33 subcontract agreements required the subcontractor to conduct weekly safety/toolbox meetings (item 45) and moreover, they required the subcontractor to provide a copy of the meeting minutes to the general contract or (item 46). Also, three of these agreements required the subcontractor to conduct new hire safety training (ite m 47) (Figure 4-28). Scheduled safety meetings are not specifically required by OSHA. As such, this was an increased safety measure enforceable and e ffectively made a law through the subcontract agreement. Safety meetings are an effective means of communicating information about hazards

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54 or safety rules that may have become applicable to the project. A provision that required the subcontractor to conduct weekly safety meetings stated: The Subcontractor shall schedule a weekly safety meeting onsite for his personnel. The subcontract continues: Minutes shall be kept and attendance shall be taken. Copies of each shall be provided to (Contractor) for inclusion in (Contract or's) site safety records manual. By requiring the subcontractor to furnish proof of the meeting, the general contractor ensured that the safety meetings were conducted. The proof of the meetings to be included in the contractor's records manual served to decrease th e contractor's liability since the subcontractor has purportedly reported necessary safety information to its workers. Furthermore, should the subcontractor have neglected necessary safety info rmation, the general contractor is able to bring it to the subcontractors attention for remediation. Four of the contracts that contained provisions similar to those above also contained provisions on conducting new hire tr aining. A typical provision stated: (Subcontractor shall) immediat ely instruct new employees of safety requirements and hazards before allowing them to work. Inclusion of such a provision doe s not require any more stringen t demand than those placed on the employer by OSHA part 29 CFR 1926.21 Safety training and education: (a) General requirements. The Secretary shall, pursua nt to section 107(f) of the Act, establish and supervise programs for the education and training of employers and employees in the rec ognition, avoidance and prevention of unsafe conditions in employments covered by the act. (b) Employer responsibility (1) The employer should avail himself of the safety and health training programs the Secretary provides. (2) The employer shall instruct each empl oyee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury. (3) Employees required to handle or use poisons, caustics, and other harmful substances shall be instructed regard ing the safe handling and use, and be

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55 made aware of the potential hazar ds, personal hygiene, and personal protective measures required. (4) In job site areas where harmful plants or animals are present, employees who may be exposed shall be instructed regarding the poten tial hazards, and how to avoid injury, and the first aid pr ocedures to be used in the event of injury. (5) Employees required to handle or use flammable liquids, gases, or toxic materials shall be instructed in the safe handling and use of these materials and made aware of the specific requir ements contained in Subparts D, F, and other applicable subp arts of this part. (6)(i) All employees required to enter in to confined or encl osed spaces shall be instructed as to the natu re of the hazards involved, the necessary precautions to be taken, and in the use of prot ective and emergency equipment required. The employer shall comply with any sp ecific regulations that apply to work in dangerous or potentially dangerous areas. (ii) For purposes of paragraph (b)(6)(i) of this section, "confined or enclosed space" means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or en closed spaces include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs, vaults, and vessels. As found in this part, OSHA also requires speci fic hazard training determ ined by the hazards to which the employee will be exposed. This can include training for the proper use of fall protection or the handling of hazardous materials. Conducted by General Contractor Seven of the 33 subcontract agreements re quired the subcontr actor to attend the contractor's weekly subcontractor safety meeti ngs and one required the subcontractor to attend monthly safety meetings (items 48a, 48b). Of thes e, two required the subc ontractor to participate in a safety committee (item 49). Five of the s ubcontracts requiring the subcontractors presence at the general contractors safety meeting, also required the subcontract or to conduct their own safety meeting and provide minutes (Figure 4-29 ). Again, safety meetings are not mandated by the OSHA Standards. Regularly scheduled safety meetings are a safety measure that exceed the

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56 OSHA requirements and are an effective means of educating employees on safer work practices. A typical provision stated: Each employee shall attend the weekly jobsite safety meeting. This meeting shall be administered by the designated person unde r the full supervision of the project superintendent. This subcontract agreement was also the only one that contained a provisi on relating to a safety committee. This provision stated: Subcontractors shall participate in the Jobsite Safety Committee, by assigning a designated person. The safety committee shall be created under the supervision of the project superintendent. Requiring the subcontractor to participate in the general contractor's safety meeting demonstrates the importance that the general cont ractor places on safety. However, the meeting may have a more profound impact if the upper ma nagement were to attend and not only the superintendent. Top management involvement in safety results in safer work performance. Also, involving all of the subcontractors in the sa fety committee allows contributions from all trades on the jobsite to have input in the variety of safety matters that may need to be addressed. Requiring involvement in a safety committee de monstrates a commitment to safety and a dedicated team effort for producing a sa fe and healthful work environment. Section 7Detailed Safety Requirements This section discusses provisi ons that delineate specific sa fety requirements. These provisions directly address worker safety. Th ere were multiple provisions related to personal protective equipment, barricading, and hoisting which were compare d. Safety provisions related to lighting, electric grounding, unde rground utilities, fall protec tion, safety kits, equipment operation, jobsite distractions, and fi re safety were also analyzed.

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57 Personal Protective Equipment Eight of the 33 subcontract agreements cont ained provisions with the general personal protective equipment requirement a nd/or proper dress for construction work (item 50). Eleven of the agreements specifically required hard hats (item 51), two required hard sole or steel toed shoes (item 52), and one mandated the use of safety glasses (item 53) (Figure 4-30). Two typical safety provisions requiring the use of pers onal protective equipment were as follows: Hard hats and safety glasses are mandatory. Subcontractor shall see to it that their jobsite personnel ar e properly dressed (hard hats, hard shoes, shirts, pants, etc.) and that they are provided with all necessary safety wear and equipment, and tools necessary to safe ly perform the tasks assigned to them. The provisions found in the subcontract agreemen ts relating to personal protective equipment do not go above and beyond what is already requir ed by the OSHA Standards. OSHA's general safety provision under Subpart C relating to pe rsonal protective equipment is as follows: 1926.28(a) The employer is responsible for requiring th e wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions or where this part indicates the need for using su ch equipment to reduce the hazards to the employees. 1926.28(b) Regulations governing the use, selection, a nd maintenance of personal protective and lifesaving equipment are describe d under Subpart E of this part. OSHA also has standards relati ng to the use of personal prot ective equipment on construction sites and hazards that may be encountered: 1926.95 (a) "Application." Protective equipment, in cluding personal protective equipment for eyes, face, head, and extremities, protective clothi ng, respiratory devices, and protective shields and barriers, shall be provided, used, and ma intained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of

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58 causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact. (b) "Employee-owned equipment." Where employees provide their own protective equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment. (c) "Design." All personal pr otective equipment shall be of safe design and construction for the work to be performed. The specific requirements for head protection are found in 29 CFR 1926.100: (a) Employees working in areas where there is a possible danger of head injury from impact, or from falling or flying objects, or from electrical shoc k and burns, shall be protected by protective helmets. (b) Helmets for the protection of employees against impact and pene tration of falling and flying objects shall meet the specifications contained in American National Standards Institute, Z89.1-1969, Safety Requirement s for Industrial Head Protection. (c) Helmets for the head protection of employ ees exposed to high volta ge electrical shock and burns shall meet the specifications contai ned in American National Standards Institute, Z89.2-1971. The specific requirements for foot wear are found in 29 CFR 1926.96: Safety-toe footwear for employees shall m eet the requirements a nd specifications in American National Standard for Me n's Safety-Toe Footwear, Z41.1-1967. The specific requirements for eye pr otection are found in 29 CFR 1926.102: (a) (1) Employees shall be provided with eye and face protection equipment when machines or operations present potential eye or face injury from physical, chemical, or radiation agents. (2) Eye and face protection eq uipment required by this Part shall meet the requirements specified in American National Standards Institute, Z87.1-1968, Practice for Occupational and Educational Eye and Face Protection. There are many additional requirements for ey e protection depending on the hazard to which the worker will be exposed. There ar e also stipulations for workers who require corrective lenses. Effectively Barricading for Safety Seven of the 33 subcontract agreements requir ed the subcontractor to maintain traffic control for its own operation, in some cases sp ecifically mentioning the use of flagmen,

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59 barricades, and closure permits (item 54). Four agreements required the subcontractor to post danger signs and warnings against hazards (ite m 55) and eight required the maintenance of barricades and other safeguard s (item 56) (Figure 4-31). The inclusion of these provisions reinfo rced OSHAs 29 CFR 1926 Subpart GSigns, Signals, and Barricades. The standards relating to traffic control in part 29 CFR 1926.200(g)(2) states: All traffic control signs or devices used for protection of construction workers shall conform to Part VI of the Manual of Unif orm Traffic Control Devices (AMUTCD"), 1988 Edition, Revision 3, September 3, 1993, FHWA-S A-94-027 or Part VI of the Manual on Uniform Traffic Control Devices, Millenn ium Edition, December 2000, FHWA, which are incorporated by reference. 29 CFR 1926.201(a) states: Flaggers Signaling by flaggers and the use of fla ggers, including warning garments worn by flaggers shall conform to Part VI of th e Manual on Uniform Traffic Control Devices, (1988 Edition, Revision 3 or the Millennium Ed ition), which are incorporated by reference in .200(g)(2). and, 29 CFR 1926.202 states: Barricades for protection of employees shall conform to Part VI of the Manual on Uniform Traffic Control Devices (1988 Edition, Revi sion 3 or Millennium Edition), which are incorporated by refere nce in .200(g)(2). The following provision is typical of the clauses found on traffic control: (Subcontractor shall provide) nu isance control, and traffic control as necessary. This includes required coordination wi th city government departments to comply with all traffic and building codes. Provide flagmen as necessary. Even though the provision did not specifically refe r to the applicable OSHA standards, it is still the duty of the subcontractor to be aw are of and abide by the existing laws. Another control measure required in the subcon tract agreements was related to the use and maintenance of barricades and the use of warn ing signs when and wh ere appropriate. An

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60 example of a provision that included both of th ese stipulations was as follows: "Properly barricade all construction areas. Incl ude warning signs as necessary." Again, OSHA stipulates when and where the use of barricades and warning signs should be used. Barricades can be used for a variety of safety reasons on construction sites. They can be used for vehicular traffic control as mentione d above. They can also be used for pedestrian traffic control to warn against area s with falling debris or to form perimeter barriers such as those required for floor openings to prevent falls. E ach particular safety use for barricades has minimum distances required for their placement in the OSHA regulations. These regulations also stipulate the color of si gns, the size of the le tters, and under what circumstances the different signs should be used. OSHA specifies that danger signs are to be predominately red and used only when there is an immediate hazard. Caution signs are to be ye llow and used when the potential for a hazard exists. Exit signs, when required, ar e to be white with red letters that are at least six inches tall and at least three-quarters of an inch thick. Directional signs (oth er than those for traffic) shall have a white background. Hoisting and Material Handling Four of the 33 subcontract agreements contai ned provisions requiring the subcontractor to meet or exceed safety requirements when hoisting (item 57). Four agreements also required the subcontractor to safely and effi ciently unload materials at the j obsite (item 58) (Figure 4-32). A typical provision requ iring safe performance during hoisting was: Subcontractor shall provide all hoisting and s caffolding required to complete the Scope of Work. Subcontractor shall comply with all applicable safety regul ations, including the requirements of the Occupational Safety and Health Administration.

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61 The inclusion of this provision did not place re quirements on the subcontractor that exceed those required by law. OSHA has safety standards that delineate the exact safety precautions that must be taken during hoisti ng activities such as: 1926.552 (a)(1)The employer shall comply with the manufacturer's specifications and limitations applicable to the operation of all hoists and el evators. Where manufacturer's specifications are not available, the limita tions assigned to the equipment shall be based on the determinations of a professional engineer competent in the field. (a)(2)Rated load capacities, recommended ope rating speeds, and special hazard warnings or instructions shall be posted on cars and platforms. Also in this standard, OSHA details the maxi mum amount of damage that hoisting ropes are allowed to have and still be used during hois ting operations. Another safety provision that related to safety when hoisting was: Subcontractor shall exercise due and prope r care when loading, handling, and unloading materials and/or equipment and shall meet or exceed all safety requirements, including those of OSHA. Again, OSHA has specific standard s related to the safe handling of materials. Below are two examples of specific safety requirements when using hoists to move or unload materials. 1926.552 (b)(1)(ii)No person shall be allo wed to ride on material hois ts except for the purposes of inspection and maintenance. 1926.953(a)Unloading. Prior to unlo ading steel, poles, cross arms and similar material, the load shall be thoroughly examined to ascertain if the load has shifte d, binders or stakes have broken or the load is ot herwise hazardous to employees. Lighting Seven of the 33 subcontract agreements required the subcontractor to provide its own task lighting for the subcontractor's portion of the wo rk (item 59) (Figure 4-33). Typically these provisions were very basi c in their requirements: Subcontractor shall provide task lighting required for its work.

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62 In some instances the general c ontractor or another subcontractor provided the power for small tools and lighting, and the subcontra ctor was simply obligated for any distribution of that power that was required. OSHA require s the proper amount of light to safely perform any task. The general part of the standard states: 1926.56(a) General. Construction areas, ramps, runways, corridors, offices, s hops, and storage areas shall be lighted to not less than the minimum illumination intensities listed in Table D-3 while any work is in progress: The table that is provided with the standard give s the amount of foot-candl es that each type of environment at a construction site must have. Depending on the task performed or the location, the minimum illumination on construction sites must be 3 foot candles to 30 foot candles. When the requirements are not met, additional light mu st be provided in order to perform the work. Electric Three of the 33 subcontract agreements contai ned provisions that stat ed the subcontractor had to provide ground fault interrupters for its own equipment (item 60) (Figure 4-34). A typical provision stated: Each Trade Contractor shall be responsibl e for providing its employees with ground fault interrupters for extension cords in accordance with OSHA requirements. A Ground-fault circuit interrupt er is defined by OSHA in Standard 29 CFR 1926.449 as, "a device for the protection of personnel that functi ons to deenergize a circuit or portion thereof within an established period of time when a cu rrent to ground exceeds some predetermined value that is less than that required to operate the overcurrent protectiv e device of the s upply circuit." Providing ground fault interrupters is already re quired by OSHA and does not exceed and legal requirements. Below is the OSHA standa rd related to ground fault interrupters: 1926.404(b)(1)(ii)

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63 Ground-fault circuit interrupters. All 120-volt, single-phase 15and 20-ampere receptacle outlets on construction sites, which are not a part of the permanent wiring of the building or structure and which are in use by employ ees, shall have approved ground-fault circuit interrupters for personnel prot ection. Receptacles on a two-wi re, single-phase portable or vehicle-mounted generator rated not more than 5kW, where the circuit conductors of the generator are insulated from the generator frame and all other grounded surfaces, need not be protected with ground-f ault circuit interrupters. Underground Utilities Two of the 33 subcontract agr eements contained provisions re quiring the subcontractor to ascertain the location of underground utilities and be responsible for any damage they may cause (item 61) (Figure 4-35). One provision regardin g the location of underground utilities is as follows: The subcontractor shall be res ponsible for the location of a nd/or damage cause by him to any underground objects, including but not limite d to sewer, water, gas, electric or telephone lines, cables, pipes, and tunnel. This type of provision was simply a way of assigni ng liability to the subcont ractor. It is already required by the Underground Facility Damage Preven tion and Safety Act in Florida (the jobsite location for the work covered by the subcontract agreements in this study) to have all underground utilities marked before construction begins if work act ivities are likely to unearth them. They also must remain marked for the dur ation of the project. Therefore this provision did not stipulate any safety requirement that is not already required by law. Fall Protection Three of the 33 subcontract agreements sp ecifically included pr ovisions requiring the subcontractor to comply with OSHA's fall prot ection standards (item 62) (Figure 4-36). A typical provision stated: Subcontractor will provide all fall protection including fall protection equipment as required by OSHA, including but not limited to the latest interpreta tion of regional and local OSHA offices.

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64 This provision was very specifi c in mentioning the subcontract or's need to be aware of interpretations for fall protection standards. OSHA contains a general provision for all construction work tasks: 1926.501(a)(1) This section sets forth requirements for empl oyers to provide fall protection systems. All fall protection required by this se ction shall conform to the cr iteria set forth in 1926.502 of this subpart. 1926.501(a)(2) The employer shall determine if the walki ng/working surfaces on which its employees are to work have the strength and structural in tegrity to support employees safely. Employees shall be allowed to work on those surfaces only when the surfaces have the requisite strength and structural integrity. In addition to general fall protection requireme nts, OSHA has standards pertaining to specific tasks. Below is an example of a fall protection standard for steel workers: 1926.760(a)(1) each employee engaged in a steel erection ac tivity who is on a walking/working surface with an unprotected side or edge more than 15 feet (4.6 m) above a lower level shall be protected from fall hazards by guardrail systems, safety net systems, personal fall arrest systems, positioning device systems or fall restraint systems. Paragraph (a) (3) contains less stringent fall protection standard s for connectors and employees working in controlled decking zones. The subc ontractor would need to be knowledgeable of any fall protection standards that re late to any work they would be conducting on the jobsite. Safety Kits Four of the 33 subcontract agreements re quired the subcontract or to provide OSHA compliant safety kits (item 63) (Fi gure 4-37). A typical provision stated: OSHA approved safety kits must be provided completely stocked, accessible and visible to employees. First aid kits are not actually ap proved by OSHA as stated in the pr ovision above. First aid kits can be obtained that comply with the OSHA st andards and the minimum requirements found in

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65 ANSI Z308.1-1978. This type of provision does not exceed legal requirements. OSHA's standard on first aid supplies is as follows: 1926.50(d)(1) First aid supplies shall be eas ily accessible when required. 1926.50(d)(2) The contents of the first aid ki t shall be placed in a weatherp roof container with individual sealed packages for each type of item, and shall be checked by the employer before being sent out on each job and at least weekly on each job to ensure that the expended items are replaced. Appendix A to 1926.50 -First aid Kits (Non-Mandatory) First aid supplies are required to be eas ily accessible under paragraph Sec. 1926.50(d)(1). An example of the minimal contents of a gene ric first aid kit is described in American National Standard (ANSI) Z308.1-1978 "Minimum Requirements for Industrial Unit-Type First-aid Kits". The contents of the kit listed in the ANSI standard should be adequate for small work sites. When larger operations or multiple operations are being conducted at the same location, employers should determine the need for additional first aid kits at the worksite, additional types of first aid equipm ent and supplies and additional quantities and types of supplies and equipm ent in the first aid kits. Equipment Operation Five of the 33 subcontractor agreements requ ire the subcontractor to provide a competent operator for equipment operation and to ensure it' s in safe operating condition before utilizing it (item 64) (Figure 4-38). A provision related to safe ope ration of equipment was: Subcontractor shall make a thorough inspection to Subcontractor's satisfaction as to the physical condition and capacity of the equi pment as well as the competency of the operator, there being no representations or warra nties by Contractor with reference to such matters. This provision was specifically in reference to the subcontractor's use of th e general contractor's equipment. In all instances, OSHA already requ ires machinery to be operated by a worker who is competent and has been trained in and is li censed to operate the equipment. OSHA also requires all equipment to be inspected prior to each use and any deficien cies repaired before operation of the equipment.

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66 Distractions Two of the 33 subcontract agreem ents stated that the subcontractor shall not allow the use of radios or other sound-genera ting devices (item 65) (Figure 4-39) One such provision stated: Sound reproducing devices and radios, other th an those used for communications at the site are prohibited. OSHA has no specific standard on this subject; th erefore the inclusion of this provision requires safer practices than those required by law. Prohibiting the use of ra dios or sound-generating devices ensures that workers can here the 'sounds of the jobsite.' In other wo rds, they are able to hear shouts of warnings, equipment and machinery that may be in their area and have an affect on safety, or even the sounds from structural collapses. Also, the more distractions a worker is subjected to, the more likely injuries will occur. Including provisions prohibiting distracting devices on the jobsite should ensu re safer work performance. Fire Safety Three of the 33 subcontract agreements contai ned provisions requiring the subcontractor to provide fire extinguishers and/or fire protection (item 66) (Fi gure 4-40). One provision stated: The trade contractor is responsib le for providing all provisions a ssociated with specific fire protection requirements associated w ith the performance of his work. While this particular provision did not specif ically mention providing fire extinguishers, OSHA has a standard requiring them for fire protecti on during construction operations. Furthermore, contractors are also required to develop fire protection progr ams. These requirements are outlined in the standards below: 1926.150(a)(1) The employer shall be responsible for the deve lopment of a fire protection program to be followed throughout all phases of the construction and demolition work, and he shall provide for the firefighting equipment as specif ied in this subpart. As fire hazards occur, there shall be no delay in provi ding the necessary equipment.

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67 1926.150(c)(1)(i) A fire extinguisher, rated not less than 2A, sh all be provided for each 3,000 square feet of the protected building area, or major fraction th ereof. Travel distance from any point of the protected area to the nearest fire extinguisher shall not exceed 100 feet. Section 8 Miscellaneous Safety Provisions The subcontract agreements that were evaluated for this study contained many miscellaneous safety provisions th at were not discussed in the pr evious sections. All of these provisions were found to only occur in one subc ontract agreement. The majority of these provisions were task specific, though not necessari ly specific to the subcontractor's work. For example, one of the subcontract agreemen ts included provisions dedicated to safety related to: barricades, safety lines, and railings, scaffolds, access equipment, platforms and rails, cranes, hoists, and lifts, ventilation, and heating, and noise control. The general contractor for this subcontract agreement was not in the Engineering New Records Top 400 Contractors in 2006. While the exact size of this company is unknown, the majority of its work has been performed in only a few cities in Florida and Georgia. Studies have found that medium sized construction companies' employees ar e more prone to incur injuries than those of small and large sized firms (Hinze 1997). This gene ral contractor's extensiv e inclusion of safety provisions is a step in the ri ght direction for providing a sa fer work environment for its subcontractors and employees. An example of a provision relating to ba rricades, safety lines, and railings was: Each trade contractor shall provide, erect, maintain, dismantle and remove any and all barricades, scaffolding, railings toeboards, ladders, flaggi ng, covers and safety netting required to complete his work, in accordance with OSHA and all other applicable code requirements. At no time shall the Trade Contra ctor remove, alter or render ineffective, any barricades, railings or cover on the project without written permission of the

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68 Construction Manager. Where these safety de vices are to be turned over to others, upon completion of the Work, the devices shall be re paired, or replaced so that they meet the required standards prior to turnover. This provision went beyond what is required by OSHA by requiring the subcontractor to obtain permission from the general contractor to alte r the equipment in any way. By doing this, the general contractor was able to better maintain the effectiveness of on-site safety equipment. It also kept the contractor (and t hus other subcontractors) aware of when safety devices were rendered ineffective during the course of the proj ect so that they could take the extra safety precautions required in that area. Another provision found in the subcontract agreement related to crane safety was: The Trade Contractor is responsible for the safe ty of craning operations. He shall submit a current Crane Inspection Certificate to the C onstruction Manager prio r to starting hoisting operations that ensures that the machine is in excellent operating condition together with a written record of major repa irs performed on the machine in the last three (3) years. The Contractor will ensure the proper set up of the machine at every move including checking the bearing capacity of the ground, leveling the crane to within 1% and supporting it on adequate cribbing properly ba nded and bolted together with outriggers fully extended. The Contractor will ensure that the Crane Oper ator has at least three (3) years experience operating the type and capacity of machine used on this Projec t. The Crane Operator shall have received adequate training in Crane Operation and Technology. The Crane Operator shall be fam iliar with all appli cable local, federal and industrial safety standards posted load limitations and have the sole decision to refuse to handle a load if, in his opinion, unsafe conditions exists. At the start of each working day, the Crane Operator will perform a "sight, sound and operational" test on the machine for a minimum of fifteen (15) minutes in accordance with an Operationa l Check List acceptable to the Construction Manager. The completed Operator's Daily Check List shall be attached to the Contractor's Daily Report and submitted to the Construction Manager. This provision included many more safety measur es than those discus sed under the previous section related to hoisting. The provision mandate d a minimum of fifteen minutes that must be dedicated to ensuring that the equipment is in proper operating order. It also required the

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69 operator to perform a specific check and fill out the requisite form. Both of these requirements go above and beyond what OSHA requires stating: 1926.550(a)(5) The employer shall designate a competent pe rson who shall inspect all machinery and equipment prior to each use, and during use, to make sure it is in safe operating condition. Any deficiencies shall be repaired, or def ective parts replaced, before continued use. 1926.550(g)(3)(i)(D) The crane shall be uniformly le vel within one percent of le vel grade and located on firm footing. Cranes equipped with outriggers sha ll have them all fully deployed following manufacturer's specifications, insofar as applicable, when hoisting employees. This crane safety provision also re quired the leveling of the crane to within 1% which is already required by OSHA. However the required minimum three year operating experience and the submission of documents related to the cran e's maintenance again goes beyond what OSHA requires. Another subcontract agreement also included additional miscellaneous safety provisions. These were related to safety meetings, as well as personal protective equipment and the proper and safe use of equipment. The provis ion related to safety meetings was: (Contractor) shall conduct bimont hly safety and quality control meetings at the job site. All employees working on the job si te shall attend these meetings. In this provision, the general contractor manda ted that all employees attend, not just the subcontractors jobsite representa tive. While increasing the freque ncy of the meetings would be more beneficial for the improvement of jobsite safety performance, it is a proactive safety method that shows the general contractors commitme nt to safety and ceasi ng all work activities. The provision related to the proper use of personal protective equi pment and ensuring the proper working order of equipment was: Additional Safety Clarifications: (a) Audibl e-warning devices must be installed on all forklifts, scissor lifts, man lifts and articulate d platforms used on this project work site.

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70 Audible devices must activate on any moveme nt and upon descent of platform. (b) All safety equipment, such as lights, horn, etc., must be operational at all times. Forklift or moving equipment operators ar e required to wear seatbe lts. (c) Full body harness with lanyard is required for personnel within scissor lifts or articulated platforms. The tie-in point is a dedicated attach ment point or as directed by the manufacturer. (d) All subcontractors shall wear safety vests during the site and structure portion of the job as well as when heavy machinery is being used in side the building. Vests are to be provided by each subcontractor. Only part (d) of this safety provision required safer work practices than those mandated by the OSHA standards. Requiring all employees to wear safety vests duri ng the more dangerous portions of construction ensures that they are more visible to machine operators and other employees who may be conducting overhead work. Another miscellaneous provision embedded w ithin the Scope of Work section of a subcontract agreement stated: All scaffolding will be constructed in accordance with OSHA requirements. This Subcontractor will hire a scaffolding company to furnish, install, maintain, and disassemble the scaffolding required to perfor m his Work, or he may do so with his own forces provided that those forces can demonstrate their qualifications to perform this work. At a minimum all levels of scaffolding will be 100% fully cross-braced, fully planked with handrails (top rail/ mid rail) and toe board. S caffolding base will have 2" x 12" structural grade rough sawn wood (or other approved mate rial) with adjustable screw jacks for leveling the scaffolding. Scaffolding will be br aced back to structure or by extensions through window openings with screw jacks tied in to scaffolding. Prior to the start of this work, a sample scaffold of 3 frames in height will be erected to comply with the standards stated above for approval by (Contractor) as the standard use on this project. Again, all parts of this provi sion are required by OSHA in 29 CFR 1926 Subpart L, with the exception of the last sentence requ iring the construction of a sample scaffold. This is an extra safety precaution that the genera l contractor would share part of the liability on since it takes on the responsibility of approving the safety of the scaffolding. As demonstrated by the examples of miscella neous safety provisions above, the more unique provisions will result in improved worker safety performan ce. Generally these provisions are task specific, and either restate OSHA standard s or require even safer work practices. It is

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71 these provisions in conjunction with their enfor cement that will have the most positive impact on construction worker safety. Section 9 Historical Comparison To examine the existence of a possible trend rega rding the inclusion of safety provisions in subcontract agreements, sixteen subcontracts utilized during the period from 1988 to 1990 were also evaluated. It was recognized that the numbe r of subcontracts that were evaluated provided insufficient information to provide conclusive tr end information, but that reasonable inferences could be drawn. The study of the historical subc ontract agreements revealed th at the indemnity clauses and the housekeeping provisions occurred most ofte n. One of the historical agreements also delineated the responsibility for pr oviding temporary utilities and wa ter. Six of the subcontract agreements required the subcontractor to comply with the prime contract and three required lower-tiered subs to comply with the provisions of the subcontract document. However in these instances, this was mentioned onl y as a general clause and not in direct relation to safety. The most frequently occurring safety provisi on in the older subcont ract agreements was one which required the subcontractor to comply w ith existing safety laws and regulations. Seven out of the 16 agreements contained this provision, while three others speci fically cited OSHA as a safety standard to comply with and two re quired compliance with the general contractor's safety policy. Four of the 16 agreements also st ated that the subcontract or was responsible for safety. In two of these instances, this was onl y mentioned in regard to providing a "safe and convenient environment for testing." Below is a list of safety provisions that were found to occur in only one of the subcontract documents: Subcontractor must comply with MSDS requirements.

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72 Subcontractor shall notify contractor of injuries within three days. Subcontractor must abide by hazardous communication program. Subcontractor must give written notice of hazardous substances it will bring on site. Subcontractor must submit their company's safety program. Subcontractor must comply with reasonabl e safety recommendations of insurance companies. Subcontractor will stop work if Contractor deems it unsafe. Subcontractor must conduct week ly safety/toolbox meetings. Subcontractor must supply copy of safe ty meeting minutes to Contractor. Contractor's failure to enforce a provi sion is not waiver of that provision. Two miscellaneous safety provision s were found in the historical subcontract agreements. They were both contained in the same agreement and were as follows: The Contractor shall not load or permit any part of the structur e to be loaded with a weight that will endanger its safety. In any emergency affecting the safety of persons or property, the Cont ractor shall act, at his discretion, to prevent threatened damage, injury, or loss. Any additional compensation or extension of time claimed by the Contract or on account of emergency work shall be determined as provided in Paragraph 14 for Changes in the Work. Neither of these provisions is particularly prog ressive nor do they mandate safer standards than those required by law. As shown in Table 4-1 the average number of provisions found in current day subcontract agreements was approximately 15.5. The mi nimum number of provisions found in any subcontract document from 2004-2006 was two and the maximum was 31. The average number of provisions found in the subcontract agreem ents dating 1988-1990 was approximately 3.8. The minimum number of provisions found was zero and the maximum was 12. As demonstrated in this brief analysis the inclusion of safety provisions has greatly in creased over the past fifteen to

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73 sixteen years. No irrefutable conclusion can be made that the inclusion of safety provisions has helped create safer work environments in cons truction. However, the inclusion of safety provisions can certainly aid in ensuring safer jobsites by reitera ting existing laws and also by mandating safer work practices. Protection of work clause includes protection of "workers."1 32 0 5 10 15 20 25 30 35includes the provisiondid not include the provisionNumber of Subcontracts Figure 4-1 Protection of work clause Who provides potable water for the jobsite?24 5 4 0 5 10 15 20 25 30Subcontractor General Contractor Did not specifyNumber of Subcontracts Figure 4-2 Responsibility for providing potable water

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74 Who provides toilet facilities for the jobsite?24 2 7 0 5 10 15 20 25 30Subcontractor General Contractor Did not specifyNumber of Subcontracts Figure 4-3 Responsibility fo r providing toilet facilities Who provides electricity for the jobsite?26 34 0 5 10 15 20 25 30Subcontractor General Contractor Did not specifyNumber of Subcontracts Figure 4-4 Responsibility for providing electricity

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75 Who provides dumpsters/trash removal for the jobsite?26 1 6 0 5 10 15 20 25 30Subcontractor General Contractor Did not specifyNumber of Subcontracts Figure 4-5 Responsibility for pr oviding dumpsters/trash removal Types of indemnity clauses found in the subcontract agreements.General Indemnity and Indemnity for Safety Violation Clauses, 15, 46% General Indemnity and Mutual Indemnity Clauses, 2, 6% No Indemnity Clause, 5, 15% General Indemnity, 11, 33% Figure 4-6 Indemnity clauses

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76 Subcontractor shall require all of its subcontractors and suppliers to comply with:5 3 0 1 2 3 4 5 6the entire subcontract agreement the safety clauses within the subcontract agreementNumber of Subcontracts Figure 4-7 Sub-subcontractor and supplie r compliance with subcontract agreement General contractor requires the subcontractor to comply with:1 25 1 0 5 10 15 20 25 30the entire prime contract the safety clauses within the prime contract both the entire prime contract and specifically the safety clauses of the prime contractNumber of Subcontracts Figure 4-8 Inclusion of prime c ontract as part of subcontract

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77 Subcontractor Responsibility for Safety5 9 2 0 1 2 3 4 5 6 7 8 9 10Subcontractor is responsible for health and safety at all times Subcontractor shall not permit workers to work in unsafe conditions/will provide safe and sufficient facilities at all times. Subcontract contained both of these provisionsNumber of Subcontracts that Include the Provision Figure 4-9 Subcontractor responsibility for safety Responsib ility for Worker SafetySubcontractor must stop work if general contractor deems it unsafe., 1, 3% Subcontractor is responsible for health and safety at all times., 11, 35% Subcontract contains neither provision., 16, 52% Subcontractor is responsible for health and safety at all times and must stop work if general contractor deems it to be unsafe., 3, 10% Figure 4-10 Responsibility for worker safety

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78 Cleanliness and SafetySubcontractor must maintain work site in safe and clean condition., 2, 6% Subcontractor will remove all trash and debris (daily). No mention of safety., 24, 73% Subcontract contains no housekeeping provisions., 1, 3% Subcontract contains both a general housekeeping provision and a clean-up provision in the safety clause., 6, 18% Figure 4-11 Cleanliness and safety Designating a Safety SupervisorSubcontractor shall designate an employee whose duty is accident prevention., 7, 21% Subcontractor shall designate a 'competent' person as defined by OSHA., 4, 12% Subcontract does not specify that the subcontractor must designate responsible party for safety., 22, 67% Figure 4-12 Designating a safety supervisor

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79 Subcontractor shall immediately notify contractor of hazardous or unsafe conditions. 24 9 0 5 10 15 20 25 30included the provisiondid not include the provisionNumber of Subcontracts Figure 4-13 Notifying contractor of unsafe work conditions Injury Notification24 6 1 2 0 5 10 15 20 25 30 Subcontractor not required to report injuries to the general contractor Subcontractor shall notify general contractor of injuries immediately. Subcontractor shall notify general contractor of injuries within 24 hours. Subcontractor shall notify general contractor of injuries within 3 days.Number of Subcontracts Figure 4-14a Notifying genera l contractor of injuries

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80 Injury Notification and Accident Reports Subcontractor not required to report injuries to the general contractor, 24, 73% Subcontractor must submit a completed accident report to the general contractor, 6, 18% Subcontractor not required to submit a completed accident report., 3, 9% Subcontractor must report injuries to the general contractor, 9, 27% Figure 4-14b Correlation of injury notification and accident reports Compliance with Applicable laws12 3 9 9 0 2 4 6 8 10 12 14Subcontractor must comply with applicable safety laws, ordinances, rules and regulations. Subcontractor must comply with all applicable laws, ordinances, rules and regulations. Subcontract contains both provisions Subcontract contains neither provision.Number of Subcontracts Figure 4-15 Compliance with applicable laws

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81 Compliance with Safety Laws and Recommendations20 1 1 0 5 10 15 20 25Subcontractor must comply with OSHA Regulations. Subcontractor must comply with reasonable safety recommendations of insurance companies. Subcontracts Containing Both ProvisionsNumber of Subcontracts Figure 4-16 Compliance with safe ty laws and recommendations General Contractors Right to Restrict Job Site Access7 24 2 0 5 10 15 20 25 30Contractor can prohibit people from the site for safety violations, and/or drug or alcohol use, and/or fighting, or possession of weapons. If the Subcontractor fails to abide by or enforce safety policies then Contractor can bar such party from the job site. No provision for the general contractors right to restrict job site access.Number of Subcontracts Figure 4-17 General contractors ri ght to restrict job site access

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82 Non-Enforcement is Not a Waiver of Provisions26 1 3 3 0 5 10 15 20 25 30Contractor not enforcing a safety provision is not a waiver of the provision. Contractor not enforcing a provision is not a waiver of the provision. Subcontract contained both a general and a safety non-waiver provision. No non-waiver provisions contained in the subcontract.Number of Subcontracts Figure 4-18 Non-enforcement is not a waiver of provisions Contractor may provide safety personnel and services and backcharge the subcontractor if subcontractor is unwilling or unable to maintain a safe work site (or withhold payments until the subcontractor complies.)7 26 0 5 10 15 20 25 30included the provisiondid not include the provisionNumber of Subcontracts Figure 4-19 General contractors righ t to correct safety deficiencies

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83 General Contractor's Right to Instruct Subcontractor Employees2 28 3 0 5 10 15 20 25 30Contractor shall never give instructions to Subcontractor's employees except in emergencies. Contractor shall never instruct Subcontractor's employees. Subcontract contains neither provision.Number of Subcontracts Figure 4-20 General contractor's right to instruct subcontractor employees Subcontractor Safety Programs1 8 3 1 0 1 2 3 4 5 6 7 8 9Subcontractor must submit their company's safety program. Subcontractor must submit their company's safety program and any other requested safety information Subcontractor must submit a project specific safety program. Subcontractor shall supply any requested safety informationNumber of Subcontracts Figure 4-21 Subcontractor safety programs

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84 General Contractor Safety Programs14 10 8 1 0 2 4 6 8 10 12 14 16Subcontractor must comply with Contractors safety policy. Subcontract includes additional addenda or exhibits concerning safety. Subcontractor must comply with Contractors safety policy and the agreement includes additional safety addenda. Subcontract contains neither provision.Number of Subcontracts Figure 4-22 General cont ractor safety programs Drug and Alcohol Policies1 3 2 2 0 1 2 3 4Subcontractor must comply with Contractors drug and alcohol abuse policy. Subcontractor will implement and enforce a substance abuse control program. None of the subcontractors employees shall possess, consume, or be under the influence of drugs or alcohol, either legally taken or not. Subcontractor will implement and enforce a substance abuse control program and ensure that their employees do not possess, consume or be under the influence of drugs/alcohol.Number of Subcontracts Figure 4-23 Drug and alcohol policies

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85 Subcontractor must comply with Drug Free Workplace Statutes (may include 440.101, 440.102) 30 3 0 5 10 15 20 25 30 35 included the provisiondid not include the provisionNumber of Subcontracts Figure 4-24 Drug free workplace statutes Hazardous Communication Program33 27 0 5 10 15 20 25 30 Subcontractor must abide by Contractors hazardous communication program. Subcontractor must provide its own hazardous communication program Subcontract did not require the subcontractor to abide by any hazardous communication program.Number of Subcontracts Figure 4-25 Hazardous communication programs

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86 Hazardous Substance LawsSubcontract contains both hazardous disposal and MSDS provisions, 3, 9% Subcontract contains no provisions relating to hazardous substance laws., 12, 37% Subcontractor must not dispose of hazardous waste in undesignated containers or dumpsters and must comply with disposal laws, 2, 6% Subcontractor will stop work and inform contractor if asbestos or PCB or other hazardous materials are present., 3, 9% Subcontract contains both Asbestos and MSDS provisions, 2, 6% Subcontractor must comply with MSDS requirements on toxic materials 11, 33% Figure 4-26 Hazardous substance laws Hazardous Substances on the Job SiteHazardous materials are prohibited., 1, 3% Hazardous materials are prohibited without approval of architect or owner., 4, 12% Subcontractor must give written notice of hazardous substances it will bring on site., 3, 9% Subcontract contains no provisions for the restriction of hazardous substances., 25, 76% Figure 4-27 Hazardous substances on the jobsite

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87 Safety Meetings and Training Conducted by the Subcontractor 23 3 70 5 10 15 20 25 Subcontractor must conduct weekly safety/toolbox meetings and supply copy of safety meeting minutes to Contractor. Subcontractor must conduct weekly safety/toolbox meetings, supply copy of safety meeting minutes to Contractor, and conduct new hire safety training. Subcontract contains no provisions requiring the Subcontractor to provide safety training or conduct safety meetingsNumber of Subcontracts Figure 4-28 Safety meetings and tr aining conducted by th e subcontractor Safety Meetings 5 5 3 200 5 10 15 20 25Subcontractor must attend Contractor's safety meetings. Subcontractor must conduct its own weekly safety meeting and provide minutes to the contractor. Subcontractor must attend Contractor's safety meetings and conduct their own. Subcontract contains no provisions requiring the subcontractor to attend contractor safety meetings or to conduct their own.Number of Subcontracts Figure 4-29 Safety meetings

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88 Personal Protective Equipment Provisions5 6 20 20 5 10 15 20 25Subcontracts containing no PPE provisions Subcontracts containing 1 PPE provision Subcontracts containing 2 PPE provisions Subcontracts containing 3 PPE provisionsNumber of Subcontracts PPE Provisions: 1. Subcontractor must supply or subcontractor's employees must have all required PPE and dress appropriately 2. Hard hats are mandatory. 3. Hard sole/steel toe shoes are required. 4. Safety glasses are mandatory. Figure 4-30 Personal protective equipment provisions

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89 Effectively Barricading for Safety1 1 4 202 230 5 10 15 20 25 Subcontracts that did not contain barricading provisions Subcontracts that contained barricading provision #1 Subcontracts that contained barricading provision #2 Subcontracts that contained barricading provision #3 Subcontracts that contained barricading provision #1 and #3 Subcontracts that contained barricading provision #2 and #3 Subcontracts that contained all three barricading provisionsNumber of Subcontracts Provisions: 1. Subcontractor must maintain traffic control for its own agents and operations: includes flagmen, barricades, and closure permits. 2. Subcontractor must post danger signs and other warnings against hazards. 3. Subcontractor shall provide and/or maintain all perimeter barricades or safeguards required for safety and/or keep them in place. Figure 4-31 Effectively barricading for safety Hoisting and Material Handling25 4 40 5 10 15 20 25 30When hoisting, Subcontractor must meet or exceed safety requirements including those of OSHA. Subcontractor will safely and efficiently unload materials. Subcontracts that contained no provisions on hoisting or material handlingNumber of Subcontracts Figure 4-32 Hoisting and material handling

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90 Subcontractor will provide their own t ask lighting.26 70 5 10 15 20 25 30included the provisiondid not include the provisionNumber of Subcontracts Figure 4-33 Task lighting Subcontractor must provide their own ground fault interrupters for electrical equipment.30 30 5 10 15 20 25 30 35included the provisiondid not include the provisionNumber of Subcontracts Figure 4-34 Providing gr ound fault interrupters

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91 Subcontractor is responsible for the location of underground objects/existing facilities, including electric lines.31 20 5 10 15 20 25 30 35included the provisiondid not include the provisionNumber of Subcontracts Figure 4-35 Locating underg round objects/facilities Subcontractor will provide all fall protection required by OSHA.30 3 0 5 10 15 20 25 30 35 included the provisiondid not include the provisionNumber of Subcontracts Figure 4-36 Fall protection

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92 OSHA approved safety kits must be provided.29 4 0 5 10 15 20 25 30 35 included the provisiondid not include the provisionNumber of Subcontracts Figure 4-37 OSHA safety kits When using equipment (contractor's, rented, or own), subcontractor shall ensure it is in safe condition, takes all responsibilities for safety, and shall provide a competent operator.28 5 0 5 10 15 20 25 30included the provisiondid not include the provisionNumber of Subcontracts Figure 4-38 Equipment safety

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93 No radios or sound-generating devices not used for jobsite communication are allowed.31 20 5 10 15 20 25 30 35included the provisiondid not include the provisionNumber of Subcontracts Figure 4-39 No radios /sound-generating devices Subcontractor shall provide fire extinguishers/protection30 3 0 5 10 15 20 25 30 35 included the provisiondid not include the provisionNumber of Subcontracts Figure 4-40 Provide fire extinguishers/protection

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94 Table 4-1. Descriptive statistical data for the inclusion of safety provisions in subcontract documents 2004-2006 Subcontracts 1988-1990 Subcontracts Mean 15.48484848 3.75 Standard error 1.356187568 0.819044158 Median 16 2.5 Mode 17 2 Standard deviation 7.790704446 3.276176633 Sample variance 60.69507576 10.73333333 Kurtosis -0.840496169 1.954683949 Skewness 0.031739609 1.514523227 Range 29 12 Minimum 2 0 Maximum 31 12 Sum 511 60 Count 33 16

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95 CHAPTER 5 CONCLUSION The inclusion of safety provisi ons within subcontract agreements could help lead to safer work practices on construction s ites. While restating existing laws and regulations will only stress or emphasize safety practices that ar e already mandatory; stressing compliance with existing safety laws demonstrates a general contr actor's commitment to jobsite safety. The level of management commitment to safety is very influential for overall jobsite safety and specifically for subcontractor safety. It is very important that the general contractor place the same emphasis on safety as say, cost and schedul e, because this could lead to safer worker performance. Nonetheless, due to the lag the construction industry still experien ces with regard to worker safety when compared to other industries, more proactive measures need to be taken to aid in jobsite safety. As shown in the hist orical comparison secti on, it is becoming a more common practice for general contr actors to include safety prov isions in their subcontract agreements. Fifteen years ago, it was hardly wide spread for subcontract agreements to contain safety provisions requiring compliance with ex isting safety laws. Now, not only do most subcontract agreements contain su ch provisions, but some also in clude project or task specific safety measures. Continuing to include provision s that require safety measures that go above and beyond what is required by OSHA or other regul atory agencies is one way to help improve the construction industry's safety record. Requiri ng safer work practices than those necessitated by law is probably the most effective demonstra tion of a general contractor's commitment to safety (always assuming that they ar e regularly and strictly enforced). Another way that general contractors have incl uded safety in their subcontract agreements is through the inclusion of additional safety adde nda. This included safety policies, drug and

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96 alcohol abuse policies, and mate rial safety data sheet and h azardous communication policies. Some also included project specific safety manuals or safety measurements specifically related to the subcontractor's tasks. Thes e addenda would have the same legal effect as those safety provisions included in the gene ral conditions section of the subcontract agreement; however, they probably do not stress the importance of safety as much as the safety provisions that are embedded within the general require ments of the subcontract agreem ent or in the subcontractor's scope of work. While the safety policies/ programs may be more encompassing in their prescriptive safety measurements, they give the impression that safety is an afterthought and not important enough to include in the main body of the contract. Embedding the safety measures in the subcont ract agreements, the general contractor effectively changes the subcontract agreement fr om a focus only on price and time, to one that also focuses on worker safety. The general contr actor's role in subcontr actor safety is more significant than that of the subcontractor. As such, the general contractor could make a real contribution to worksite safety by mandating and enforcing safety policies that require safer work practices than thos e of OSHA or other safe ty regulatory agencies.

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97 CHAPTER 6 RECOMMENDATIONS Recommendations to the Industry General contractors have an enormous ability to positively affect job site safety. As such, general contractors should be more diligent in including safety provisions in their subcontract agreements and focus on enforcing them. Cont ractors should not shy away from addressing safety in their subcontracts from fear of assuming liab ility. The assumption that liability will be shifted towards them should not be a deterrent because it is generally accepted among experts that the more proactive you are, the less likely injuri es are to occur, a nd therefore the less possibility there is for liability claims. Recommendations to Researchers This study was limited to using the generalized improvement of the construction industry's safety record as a comparison for the effectiv eness of safety provisi ons found in subcontract agreements, as well as factors that are known to ha ve an effect on worker safety. Further studies evaluating the inclusion of safety provisions in subcontract agreem ents in comparison with other safety related data are needed. More conclusive statements with regard to the effectiveness of safety provisions could then be made. However, due to the nature of the construction industry and its variable environment such conclusions w ould still only be generalizations, albeit more accurate ones. A study that would give more insight into th e effectiveness of the safety provisions is needed. This would require not only obtaining subcontract agreements, but also the safety records of the projects on which they were in effect. Also, the general contractor's and subcontractor's overall safety record could be used for comparison.

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98 It has been shown that factors affecting safety vary depending on the size of the project as well as the size of the company. Therefore evalua ting subcontract provisions in agreements as well as jobsite safety performance would only be th e start of a new study. Classifying the safety provisions into positive effect f actor categories as related to j ob and company size could show why some projects have more success in safety than others. Comparison of the size of the project and company and the most effective prov isions would probably pr ovide the most insight into worker safety performance. Publishing the enumeration of the most effective safety provisions and measures that gene ral contractors have used could benefit worker safety in the construction industry. Another comparative study that could be conducted is one in which a survey is used to ascertain the effectiveness and means with whic h the general contractor enforces the safety provisions. An analysis of only the written safe ty documents will only give half the story. The general contractor's commitment and enforcemen t of its own policies must also be evaluated.

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99 APPENDIX A CODING FORM FOR SUBC ONTRACT AGREEMENTS The subcontract agreements for this study are coded as: Yes, this provision is included, or No, this provision is not included. NOTE: The subcontracts were not evaluated for the inclusion of the provisions as exactly stated below, but for the inclusion of the underlying safety principle. Section 1General Provisions 1. Protection of work clause incl udes protection of "workers." 2. Contractor provides potable water. 3. Subcontractor provides potable water. 4. Contractor provides toilets. 5. Subcontractor provides toilets. 6. Contractor provides electricity. 7. Subcontractor provides electricity. 8. Contractor provides trash removal/dumpsters. 9. Subcontractor provides trash removal/dumpsters. Section 2General Safety Provisions 10. a) Subcontractor will bear costs and hold harmless the Contractor for any violations. b) Subcontractor will bear costs and hold harmless the Contractor for any safety violations. c) Subcontractor and Contractor mutually inde mnify one another for violations for which the other is not responsible. 11. Subcontractor will require al l of its subcontractors and suppliers to comply with: a) the entire subcontract agreement. b) with the safety clauses in the subcontract agreement. 12. Subcontractor must comply with: a) the contract between the genera l contractor and the owner. b) the safety requirements of the contract betw een the general contra ctor and the owner. 13. Subcontractor is responsible for he alth and safety at all times.

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100 14. Subcontractor shall not permit workers to work in unsafe conditions/w ill provide safe and sufficient facilities at all times. 15. Subcontractor will stop work if Contractor deems it unsafe. 16. Subcontractor will remove all trash and debris (daily). *No specific mention of safety. 17. Subcontractor must maintain work site in safe and clean condition. 18. a) Subcontractor shall designate a 'competent' person as defined by OSHA. b) Subcontractor shall designate an empl oyee whose duty is accident prevention. 19. Subcontractor shall immediately notify cont ractor of hazardous or unsafe conditions. 20. Subcontractor shall notify contractor of injuries: a) immediately. b) within 24 hours. c) within 3 days. 21. In the event of an accident, Subcontractor mu st submit a completed accident report to the contractor (for insuranc e purposes or otherwise). Section 3Compliance 22. a) Subcontractor must comply with applicable safety laws, ordinances, rules and regulations. b) Subcontractor must comply with all applicable laws, ordinan ces, rules and regulations. 23. Subcontractor must comply with OSHA Regulations. 24. Subcontractor must comply with reasonabl e safety recommendations of insurance companies. Section 4General Contractor's Rights 25. Contractor can prohibit people from the site for safety violations, and/or drug or alcohol use, and/or fighting, or possession of weapons. 26. If the Subcontractor fails to abide by or enfor ce safety policies then C ontractor can bar such party from the job site. 27. a) Contractor not enforcing a safety provision is not a waiver of the provision. b) Contractor not enforcing a provision is not a waiver of the provision.

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101 28. Contractor may provide safety personnel and services and back charge the subcontractor if subcontractor is unwilling or unable to maintain a safe work site (or withhold payments until the subcontractor complies.) 29. Contractor shall never give instructions to S ubcontractor's employees except in emergencies. 30. Contractor shall never instruct Subcontractor's employees. Section 5Programs, Submitta ls, and Requirements by Law General Safety 31. a) Subcontractor must submit their company's safety program. b) Subcontractor must subm it a project specific safety program. 32. Subcontractor shall supply any requested sa fety information (e.g. proof of compliance). 33. Subcontractor must comply w ith Contractors safety policy. 34. Subcontract includes additional addenda or exhibits concerning safety (e.g. specific safety requirements and/or Company Safety policies, etc.). Drugs and Alcohol 35. Subcontractor must comply with Cont ractors drug and alcohol abuse policy. 36. Subcontractor will implement and enforce a substance abuse control program. 37. None of the subcontractors employees shall po ssess, consume, or be under the influence of drugs or alcohol, either legally taken or not. 38. Subcontractor must comply with Drug Free Workplace Statutes (may include 440.101, 440.102). Hazardous Substances 39. a) Subcontractor must abide by Cont ractors hazardous communication program. b) Subcontractor must provide its own hazardous communication program. 40. Subcontractor must comply with MSDS requi rements on toxic materials (Ch 422 of Florida Statutes). 41. Subcontractor must not dispose of hazardous waste in undesignated containers/dumpsters. Subcontractor shall comply with Contract Documents, Specifications, Environmental

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102 Protection Agency (EPA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and local, county, or state agencies for disposal of hazardous substances. *The subcontract agreement may not mention specific laws or acts, but only the proper disposal of hazardous substances. 42. Subcontractor will stop work and inform contract or if asbestos or PCB or other hazardous materials are present. 43. Subcontractor must give written notice of hazardous substances it will bring on site. 44. a) Hazardous materials are prohibited without approval of architect or owner. b) Hazardous materials are prohibited. Section 6Safety Meetings and Training 45. Subcontractor must conduct week ly safety/toolbox meetings. 46. Subcontractor must supply copy of safe ty meeting minutes to Contractor. 47. Subcontractor must conduct new hire safety training. 48. a) Subcontractor must attend Cont ractor's weekly safety meetings. b) Subcontractor must attend C ontractor's monthly safety meetings. 49. Subcontractor must participate in a safety committee. Section 7Detailed Safety Requirements Personal Protective Equipment 50. Subcontractor must supply or subcontractor' s employees must have all required PPE and dress appropriately. 51. Hard hats are mandatory. 52. Hard sole/steel toe shoes are required. 53. Safety glasses are mandatory. Barricading 54. Subcontractor must maintain traffic control for its own agents and operations: includes flagmen, barricades, and closure permits.

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103 55. Subcontractor must post danger signs and other warnings against hazards. 56. Subcontractor shall provide and/or maintain al l perimeter barricades or safeguards required for safety and/or keep them in place. Other 57. When hoisting, Subcontractor must meet or ex ceed safety requirements including those of OSHA. 58. Subcontractor will safely and efficiently unload materials. 59. Subcontractor will provide their own task lighting. 60. Subcontractor must provide their own ground fa ult interrupters for electrical equipment. 61. Subcontractor is responsible for the locati on of underground objects/ existing facilities, including electric lines. 62. Subcontractor will provide all fall protection required by OSHA. 63. OSHA approved safety kits must be provided. 64. When using equipment (contractor's rented, or own), subcontractor shall ensure it is in safe condition, takes all responsibilities for safe ty, and shall provide a competent operator. 65. No radios or sound-generating devices not used for jobsite comm unication are allowed. 66. Subcontractor shall provide fire extinguishers/protection.

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104 APPENDIX B SUBCONTRACT CODING RESULTS =ENR 4001=Yes, the provision was included=No, the provision was not includedSubcontract Document (2004-2006) 12345678910abc11ab12ab131415161718ab1920abc2122ab2324252627ab28293031ab3233343536373839ab4041424344ab45464748ab4950515253545556 57585960616263646566 Total number of provisions found in each subcontract agreement 11111111111111111111111111126 211111111111111111 17 311111111111111111111111111111130 411111111111 11 5111 111111110 6111111111111111 15 71111111111111111117 811111111111111 14 911111 5 10111111111 110 1111111111111112 1211 2 1311111111111111111111111124 141111111111111111111111123 151111111111111111111111123 1611111111111111 115 171111111111111111117 181111111111 111111117 19111111111111111111111111125 20 1111 15 2111111111111111111 118 2211111111111111111 1119 231111111111111111117 2411111111111111111111111124 2511111111111111111111111111127 26111111111111111111111111125 2711111111 19 281111 4 29111 3 3011111111111112 31111 14 3211111111 1110 3311111111111 11114 Total # of documents provision was found in. 14572436128152532621474308479621612212127246723932189333433165534110103712811217484473234523 Subcontract Document (1988-1990) 12345678910abc11ab12ab131415161718ab1920abc2122ab2324252627ab28293031ab3233343536373839ab4041424344ab45464748ab4950515253545556 57585960616263646566 Total number of provisions found in each subcontract agreement 11111111111111 13 21 1 311 2 41111111 7 511 2 61111 4 711 2 811111 5 9 0 101111111111 10 11111 3 1211 2 1311 2 14 1 1 15111 3 1611111 5 Total # of documents provision was found in. 01010101010003060401910000010073100211000102000001010010011000000000000000000000 Subcontract Coding Sheet Corresponding Question Number Subcontract Coding Sheet Corresponding Question Number

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105 APPENDIX C SAFETY MANUAL CASE STUDY A brief review was conducted of a general c ontractor's company safety policy that was included as an addendum to one of the 2005 subcont ract agreements. This particular policy was chosen for its specificity and positive stance on employee safet y. It did not only include a restatement of OSHA standards, but included its ow n safety policies along with requisite safety forms. This safety program was evaluated as a reas onably proactive safety program. It is noteworthy that no such document was referenced in any of the subcontract agreements that were utilized in the 1988-1990 era. Belo w are summations of sections fr om the safety policy that were more prescriptive in their requirements for jobs ite safety enforcement and expected conduct. "Tool Box" Meetings The policy required the subcontractor to conduct weekly safety mee tings. It also specified the topics to be discussed each week. This provision included the following mandate: "discuss observed unsafe work practices and conditions" a nd "review the accident experience of his crew and discuss correction of the accident causes." First Aid and Medical Treatment One policy required the subcontractor to designate an employee traine d in first aid to render first aid on the jobsite, to provide OSHA approved first aid kits an d ensure the replacement of expended items, and to provide transportation to a physician or hospital for injured employees. If an injury occurred, the subcontractor also had a duty to ensure prompt first aid was administered and a complete accident inves tigation was to be conducted. During the investigation, all "facts necessary to take corre ctive action to prevent a recurrence" was also required. The subcontractor was required to su bmit a copy of the investigation report to the

PAGE 106

106 general contractor. At the e nd of each month, the subcontractor also had to submit a monthly injury/illness report recorded on a form created by the general contractor for the purpose of maintaining company safety records. Disciplinary Actions The opening paragraph read: Except in cases involving major violations of safety rules and regulations, (Contractor) subscribes to a philosophy of progressive constr uction discipline. What that means is that discipline will be administered for the purpose of producing a corrective change in behavior, but if change does not occur, then a more serious form of discipline will be administered. These disciplinary actions included verbal and wr itten reprimands. Suspension or dismissal from the project site was at the gene ral contractor's discretion. While there is nothing atypical about the disciplinary actions, the gene ral contractor did delineate thei r purpose very well. The reason for the disciplinary actions was to ensure compliant behavior with the safety rule and regulations of the jobsite which would ensure that all empl oyees were doing their best to ensure worker safety. Safety Rules for Employees The safety rules included in this section were a very basic reiteration of the more common OSHA standards. This included such items as personal protective equipment, injury reporting, safe use of tools, machinery, and equipment, scaffolding and ladder safety, housekeeping, as well as other common safety precautions needed on most construction jobsites. This section also included a disciplinary component which provided for the dismissal of an employee for Willful Violation.

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107 Pre-Phase Planning-Job Hazard Anal ysis and Safety Task Assignment One section of the safety policy included a form for a job hazard analysis. This form included three columns: activity operation, unsafe condition, action, or other hazard, and preventative or corrective action that will be ta ken. An opening paragraph also described the purpose of a job hazard analysis (JHA) as: an important accident prevention tool that works by finding hazards and eliminating or minimizing them before the job is performed and before they have a chance to become accidents. Use JHA for job clarification a nd hazard awareness, as a guide in new employee training, for periodic contracts and for retraining of senior employees, as a refresher on jobs that run infrequently, as an accident investigation tool and for informing employees of specific job hazards and protective measures. The subcontractor was also provided with a list of phases or types of work to address as well as hazards to address. The policy also provided co mmon questions that would help stimulate ideas for identifying hazards and ways to counteract them. Each subc ontractor was required to submit a JHA to the project manager for review and each individual worker had to be assigned specific safety task assignments before beginning any phase of work. Hazard Communication The opening portion of one section of the safety policy simply restated the requirements found in the OSHA Hazard Communication Standard (2 9 CFR 1926.59). However, the general contractor also provided a list of various construction associations where the subcontractor could obtain a sample hazard communication program. It also stated further that the subcontractor could obtain a copy of the general contractors program for their use. Providing a uniform program for all subcontractors to comply w ith would probably provide for more uniform responses on the jobsite. The general was clearly assisting and directing th e subcontractor to the necessary information needed to comply with the OSHA standards.

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108 LIST OF REFERENCES Hinze, J. W. (1997). Construction Safety Prentice-Hall, Upper Saddle, N.J. Hinze, J., (2003), "Safety Training Practices for U.S. Construction Workers", in International Electronic Journal of Construction, Special Issue: Construction Sa fety Education and Training: A Global Perspective, 10 pp, (Dec. 8, 2006) Hinze, J., and Gambatese, J. (2003). "Factors Th at Influence Safety Pe rformance of Specialty Contractors." Journal of Construction Engineering and Management. 129(2), 159-164. Huang, X., and J. Hinze. (2006). "Owner 's Role in Construction Safety." Journal of Construction Engineering and Management. 132(2), 164-173. Smith, Currie & Hancock LLP. (2005). Common Sense Construction Law 3rd ed, edited by T. J. Kelleher, Jr. John Wiley & Sons, Inc., Hoboken, N.J. U.S. Department of Labor. Bureau of Labor Statistics. (Sept. 17, 2006) U.S. Department of Labor. Bureau of Labor St atistics. (2005). "2004 Survey Of Occupational Injuries & Illnesses Summary Estimates Ch arts Package." (Sept. 17, 2006) U.S. Department of Labor. Occupational Safe ty and Health Admini stration. (2004.) "OSHA Facts-December 2004." (Sept. 15, 2006) U.S. Department of Labor. Occupational Safety and Health Administra tion. (1970). Safety and Health Regulations for Construction. Code of Federal Regulations, Part 1926. Revised 1997. [Washington, D.C.] : U.S. Department of Labor, Occupational Safety and Health Administration.

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109 BIOGRAPHICAL SKETCH Suezann Bohner graduated from the School of Ar chitecture at the University of Florida with a Bachelors of Design. After traveling abroad she returned to the University of Florida to attend the M.E. Rinker, Sr. School of Building C onstruction in the fall of 2005. On graduating in May 2007 with a Master of Science degree in Building Construction, Ms. Bohner will be continuing on at the school to pursue a Doctor of Philosophy degree in Building Construction.


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Title: Evaluation of Safety Provisions in Subcontracts
Physical Description: Mixed Material
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EVALUATION OF SAFETY PROVISIONS IN SUBCONTRACTS


By

SUEZANN BOHNER













A THESIS PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
MASTER OF SCIENCE INT BUILDING CONSTRUCTION

UNIVERSITY OF FLORIDA

2007





































O 2007 Suezann Bohner




























For my family and friends who have supported me in all my endeavors

And a thank you to Joe for everything that he does









ACKNOWLEDGMENTS

I thank my parents for all their support and encouragement. I thank my father for all of his

ideas, opinions, stories, and ranting; they never fail to inspire. I would specifically like to thank

Dr. Jimmie Hinze for all of his hard work and dedication to his students and the teaching

profession. I greatly appreciate all of his help and support in completing this study.












TABLE OF CONTENTS


page

ACKNOWLEDGMENTS .............. ...............4.....


LIST OF TABLES ............ ...... ._._ ...............8....


LIST OF FIGURES .............. ...............9.....


INTRODUCTION .............. ...............13....


LITERATURE REVIEW .............. ...............15....


Construction Industry Safety ................. ...............15................
Contractual Agreements .............. ...............16....
Factors Affecting Job site Safety ................... .......... ...............17......
Subcontractor/General Contractor Relationship ................. .............. ......... .....17
General Contractor/Owner Relationship .............. ...............18....
Subcontracts and Safety ................. ...............18..............

METHODOLOGY .............. ...............20....


Introducti on ................. .......... ...............20.......
Subcontract Agreements ............... .. ... ......... ...............20.......
Obtaining Current Subcontract Agreements .............. ...............20....
Obtaining Historical Subcontract Agreements ................. ............. ......... .......21
Establishing the Validity of the Subcontract Agreements ................. ............ .........21
Data Coding Sheet Development ................. ...............22......__ ....
Compiling a List of Safety Provisions ......____ ............ ...............22
Organization of the Provisions ............ ..... .__ ...............22.....
Safety Programs ................. ...............23..............
OSHA Standards............... ...............2


RE SULT S .............. ...............25....


Introducti on ................. ....._ ...............25....
Section 1- General Provisions .............. ...............25....
Protection of Work .............. .... ............... ...............25......
Providing Potable Water for the Jobsite ................. ...............26...............
Providing Toilets for the Jobsite............... ...............27
Providing Electric for the Job site ................ .......... ..............2
Providing Trash Removal/Dumpsters for the Jobsite ................. .......... ...............29
Section 2- Safety Provisions: General .............. ...............29....
Indemnity Clause............... ...............30.
Contract Compliance ................. ...............30..............
Responsibility for Safety ............ ............ ...............31...
Cleanliness and Safety ................. ...............33___ ......












Safety Supervisor. .................. .. .......... ...............34.......
Notification of Unsafe Work Conditions ................. ...............35........... ...
Jobsite Injuries............... ...............36
Section 3- Compliance................... ........ ........3
Applicable Safety Laws and Regulations ................. ...............37........... ...
Section 4- General Contractor's Rights .............. ...............39....
Restrict Job Site Access............... ...............40.
W aiver of Provisions ................. ...............41.......... ....
Maintaining a Safe Job Site ................. ...............41........... ...
Instructing Subcontractor Employees ................. ........... .. ............... 42.....
Section 5- Programs, Submittals, and Requirements by Law .............. .....................4
Safety Information Submission .............. ...............43....
Contractor's Safety Policy .............. ...............45....
Drug and Alcohol Policy ................. ...............45.......... ....
Drug and Alcohol Laws................ ...............47.
Hazardous Substance Laws .............. ...............48....
Permission for Hazardous Substances ................. ...............51................
Section 6- Safety Meetings and Training .............. ...............53....
Conducted by Subcontractor .............. ...............53....
Conducted by General Contractor ............ .....___ ...............55..
Section 7- Detailed Safety Requirements ................ ...............56........... ...
Personal Protective Equipment............... ...............5
Effectively Barricading for Safety ................. ...............58................
Lighting .............. ...............61....
Electric................... ..............6
Underground Utilities ................. ...............63.................
Fall Protection .............. ...............63....
Safety K its .............. ...............64....
Equipment Operation............... ...............6
Distractions ................. ...............66........... ....
Fire Safety .............. ........... ..............6
Section 8 Miscellaneous Safety Provisions ................ ...............67...............
Section 9 Historical Comparison ................. ...............71...............


CONCLUSION ................. ...............95.................


RECOMMENDATIONS ................. ...............97.......... ......


Recommendations to the Industry .............. ...............97....
Recommendations to Researchers .............. ...............97....


CODING FORM FOR SUBCONTRACT AGREEMENTS............... ...............9


SUBCONTRACT CODING RE SULT S .............. ...............104....


SAFETY MANUAL CASE STUDY .............. ...............105....












LIST OF REFERENCES ................. ...............108................


BIOGRAPHICAL SKETCH ................. ...............109......... ......










LIST OF TABLES


Table page

4-1 Descriptive statistical data for the inclusion of safety provisions in subcontract
docum ents .............. ...............94....











LIST OF FIGURES


Figure page

4-1 Protection of work clause .............. ...............73....

4-2 Responsibility for providing potable water ................. ...............73...............

4-3 Responsibility for providing toilet facilities............... ...............7

4-4 Responsibility for providing electricity ................. ...............74........... ...

4-5 Responsibility for providing dumpsters/trash removal .............. ...............75....

4-6 Indemnity cl auses .............. ...............75....

4-7 Sub-subcontractor and supplier compliance with subcontract agreement. ................... ..........76

4-8 Inclusion of prime contract as part of subcontract ................. ............. ..................76

4-9 Subcontractor responsibility for safety ........._._. ....__ ... ...............77.

4-10 Responsibility for worker safety ........._. ........_. ...............77..

4-11 Cleanliness and safety .............. ...............78....

4-12 Designating a safety supervisor............... ...............7

4-13 Notifying contractor of unsafe work conditions ....._._._ ... ...._... ......_. ........7

4-14a Notifying general contractor of injuries. ...._ ......_____ .......___ ..........7

4-14b Correlation of injury notification and accident reports ........._._. ........... ........._......80

4-15 Compliance with applicable laws ..........._ ........... ...............80..

4-16 Compliance with safety laws and recommendations............... ............8

4-17 General contractors right to restrict job site access .............. ...............81....

4-18 Non-enforcement is not a waiver of provisions. ...._ ......_____ .......___ .........8

4-19 General contractors right to correct safety deficiencies .............. ...............82....

4-20 General contractor's right to instruct subcontractor employees .............. .....................8

4-21 Subcontractor safety programs ..........._ ..... ..__ ...............83..

4-22 General contractor safety programs............... ...............84











4-23 Drug and alcohol policies ................. ...............84........ ....

4-24 Drug free workplace statutes .............. ...............85....

4-25 Hazardous communication programs ........._.._ .......... ...............85..

4-26 Hazardous substance laws .............. ...............86....


4-27 Hazardous substances on the job site .............. ...............86....

4-28 Safety meetings and training conducted by the subcontractor .......___........... ........ .......87

4-29 Safety meetings............... ...............87

4-30 Personal protective equipment provisions .....___.....__.___ ............. ...........8

4-31 Effectively barricading for safety ........._.._ ........... ...............89..

4-32 Hoisting and material handling............... ...............89

4-33 Task lighting ................. ...............90..............

4-34 Providing ground fault interrupters .............. ...............90....

4-35 Locating underground objects/facilities .............. ...............91....

4-36 Fall protection............... ...............9

4-37 OSHA safety kits ................. ...............92...............

4-38 Equipment safety .............. ...............92....

4-39 No radios/sound-generating devices ................. ...............93................

4-40 Provide fire extinguishers/protection............... ........9









Abstract of Thesis Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the Requirements for the
Degree of Master of Science in Building Construction

EVALUATION OF SAFETY PROVISIONS IN SUBCONTRACTS


By

Suezann Bohner

May 2007

Chair: Jimmie W. Hinze
Major: Building Construction

Construction safety has steadily improved since the inception of the Occupational Safety

and Health Administration (OSHA) in 1971. The construction industry's safety record is still

poorer than all other industries. The majority of actual construction labor is performed by

subcontractors who exercise little control over the job site. General contractors usually control

the pace and coordination of the work. Because the subcontractor has little control, the general

contractor has a greater influence on subcontractor safety than the actual subcontractor.

Many studies have been conducted analyzing factors that affect j obsite safety. The

maj ority of these factors can be implemented and controlled by the general contractor. One way

to implement safety measures is by including them as provisions in construction subcontract

documents. Including safety provisions in the subcontracts effectively makes them a law. The

goal of my study was to evaluate and enumerate the inclusion of safety provisions found in

subcontract agreements. The subcontract safety provisions were compared to the OSHA

regulations to determine if they required stricter safety measures.

Thirty-three subcontracts dated 2004-2006 were obtained from The Florida Roofing, Sheet

Metal and Air Conditioning Contractors Association (FRSA) as well as various contractors in the

state of Florida. Each subcontract agreement was assigned a number and then evaluated for the









inclusion of safety provisions. This was also done with sixteen subcontract documents from the

time period 1989-1990. This allowed for an historical reference for which the frequency that

safety provisions were included could be compared.

After compiling and enumerating the safety provisions found in the subcontract

agreements, I found that the inclusion of safety provisions has increased over time. The majority

of the provisions did not mandate any stricter safety measures than those already required by

law. The miscellaneous safety provisions found to only occur in one subcontract were found to

be more proactive in their safety measures.









CHAPTER 1
INTTRODUCTION

According to the Census of Fatal Occupational Injuries (CFOI) and the Survey of

Occupational Injuries and Illnesses published by the Bureau of Labor Statistics, there were 1,186

fatalities and 1,766,600 injuries and illnesses in the construction industry in 2005. More than

half of these fatalities and injuries were sustained by the employees of specialty contractors or

subcontractors. These findings are not surprising since a large portion of the construction put in

place is performed by subcontractors, putting their employees at greater risk of sustaining

injuries and fatalities than the employees of the general contractors.

So what role do general contractors have in ensuring the safety of all on-site construction

workers, including those of the subcontractor? General contractors have a responsibility for

worker safety, even when no employees are on site. For example, according to the Occupational

Health and Safety Administration (OSHA), general contractors are not relieved of their

responsibilities for ensuring the safety of everyone on a j obsite, including the employees of the

subcontractor and the subcontractors' subcontractors' employees.

While the role of general contractors for the safety of all workers is assumed by virtue of

being the controlling contractor, subcontractors are also responsible for the health and safety of

their employees. This creates a joint role and responsibility for both the general contractor and

the subcontractor in ensuring the health and safety of the subcontractors' employees. This role

may be altered contractually. Most general contractors include provisions and in some cases

additional addenda and exhibits in their subcontract agreements that pertain specifically to

safety. These are designed to shift risk or they may be included in contracts to help ensure safe

work performance.









Almost all subcontract agreements include indemnity clauses whereby the subcontractor

agrees to hold harmless the general contractor for any injuries or fatalities that may be sustained

on the j obsite either through the fault or no fault of the general contractor's actions.

Nevertheless, some contractors take more proactive steps for ensuring a safe jobsite by including

provisions directly in their subcontracts that address the protection of the health, safety, and

welfare of all employees.

The trend towards the inclusion of safety provisions in subcontract agreements can

probably be attributed to the decline of self-performed work by the general contractors and an

increase of subcontracted labor, as well as a concerted effort to improve safety performance.

General contractors are beginning to evaluate their own safety standards and practices and

demanding that the same safety standards be complied with by their subcontractors. The safety

provisions may simply require that subcontractors comply with existing rules and regulations

such as those of OSHA, the Environmental Protection Agency, or other applicable state and local

laws or ordinances. In some instances the contractor will even include its own company policies

that are stricter than existing governing laws.

While some general contractors still do not include safety clauses in their subcontract

agreements for fear of inadvertently assuming greater liability (taking control of means and

methods), studies have shown that a proactive and demanding employer for the protection of the

health and safety of employees, results in safer j ob sites with less injuries and fatalities than j obs

where employers are not involved with safety (Huang and Hinze, 2006).

My study is an examination of the extent to which general contractors address safety

within their subcontract provisions and the implication for safety on jobsites.









CHAPTER 2
LITERATURE REVIEW

Construction Industry Safety

In 2004, the construction industry accounted for 22,360, or 57. 1%, of all Occupational

Safety and Health Administration's (OSHA) inspections. This was followed by manufacturing

with 8,755 inspections (22.4%). Of the construction violations found, 71.1% were classified as

serious "where there is substantial probability that death or serious physical harm could result

and that the employer knew, or should have known, of the hazard" (OSHA Facts 2005). The

construction industry also accounts for approximately 20% of all industrial worker fatalities and

9.8 % of the non-fatal injuries. These statistics are particularly staggering when it is taken into

account that the construction industry only employs 5% of the industrial workforce (Hinze 1997;

2004 Survey 2005).

The construction industry's safety record has not improved as much as it needs to and it

still accounts for a disproportionately high percentage of worker fatalities and injuries. The

construction industry has approximately 50% higher injury rates than all other industries (Huang

and Hinze 2006).

Occupational Safety and Health Act

A maj or step towards creating a safe working environment was the passage of the OSHAct

of 1970. This act provides specific prescriptive safety measures to be complied with by the

employers in the private sector with specific regulations for the construction industry. In Section

Sa, the OSHAct outlines the ethical duties of the employer, stating:

Each employer

shall furnish to each of his employees employment and a place of employment which are
free from recognized hazards that are causing or are likely to cause death or serious
physical harm to his employees...











The OSH Act also created the Occupational Safety and Health Administration (OSHA),

which has the following mission:

OSHA's mission is to assure the safety and health of America's workers by setting and
enforcing standards; providing training, outreach, and education; establishing partnerships;
and encouraging continual improvement in workplace safety and health (www.osha.gov).

OSHA accomplishes this mission by investigating workplaces and enforcing the regulations

stipulated under the OSHAct. Violators are subject to fines, the amount of which is determined

by the severity of the offense. OSHA also assists companies in compliance through various

programs and safety training and education centers (www.osha.gov).

Contractual Agreements

The Occupational Safety and Health Administration defines the responsibilities of

subcontractors and general contractors in OSHA standard 1926.16(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.

In the somewhat conflicting OSHA standard 1926. 16(a), the general contractor and the

subcontractor are allowed some flexibility for determining the obligations of each party; but it is

clear that the general contractor' s obligations remain intact in the event the subcontractor fails to

suitably execute the contracted requirements.

The prime contractor and any subcontractors may make their own arrangements with
respect to obligations which might be more appropriately treated on a job site basis rather
than individually. ... In no case shall the prime contractor be relieved of overall
responsibility for compliance with their part for all work to be performed under the
contract.

The reason OSHA allows the contractor and subcontractor to determine obligations and

roles on site concerning safety is because of the dynamic nature of construction projects. The










responsibilities are usually outlined in the subcontract agreements and are established before the

start of construction. Whether a portion of the work is subcontracted or not, the prime contractor

is held accountable to OSHA for compliance with the regulations. Often, the subcontract

agreement includes provisions that are addressed in the contract that exists between the general

contractor and the owner. The intent of such provisions is to "shuffle, shift, and ultimately

allocate primary responsibility" for safety on the jobsite (Smith et al., 2005). While the ultimate

goal of the contractual agreements is to assign liability to one or more parties, the inclusion and

more importantly the execution of some safety provisions does aid in better safety performance.

Factors Affecting Jobsite Safety

No known studies have been specifically conducted to assess the inclusion of safety

provisions in subcontract documents. However, studies have been conducted on the

effectiveness of actual safety practices of general contractors and owners. Some of these studies

have also examined the subcontracting arena, albeit to a limited extent.

Subcontractor/General Contractor Relationship

Several construction safety studies have been conducted by the Construction Industry

Institute (CII), a consortium of approximately 50 contractors and 50 facility owners that has

funded studies in many aspects of construction including productivity, quality, safety,

technology, etc. In one study funded by the CII it was found that subcontractors had better safety

performance when the general contractor:

* provided a full time proj ect safety director,
* discussed safety at coordination meetings and pre-j ob conferences,
* monitored proj ect safety performance,
* insisted on full compliance with the safety regulations, and
* had top management involved in proj ect safety (Hinze and Gambatese 2003).










Furthermore, in a study conducted by Hinze (2003), it was concluded that the more frequently

workers had safety training, the better the safety performances were. It was also discovered that

when general contractors included subcontractors' employees in worker orientation, better safety

records resulted. Better safety practices were also observed if the worker orientation was formal

mn nature.

General Contractor/Owner Relationship

In another study conducted involving safety requirements that the owner placed on the

general contractor, many different safety practices were found to have a positive impact on

safety performance (Huang and Hinze 2006). Some of these safety practices included:

* the contractor was required to place at least one full-time safety representative on site,

* the contractor was required to submit the resumes of key safety personnel to be assigned to
a proj ect for the owner' s approval,

* the contractor must provide specified minimum safety training to workers,

* the contractor must submit a site-specific safety plan,

* the contractor must submit a safety policy signed by the CEO,

* the contractor must include emergency plans in the safety program,

* the contractors must conduct daily job safety analysis, and

* the contractors must implement a drug abuse program.

Subcontracts and Safety

The application of proven safety methods is especially important for subcontractors,

especially because they generally perform 80-90% of the actual construction work. As

mentioned before, the general contractor can have a positive impact on subcontractor safety

performance by implementing proven safety techniques. The general contractor can initially

address safety issues in the subcontract agreement. A subcontract agreement, once mutually










agreed upon, effectively becomes enforceable by law. Therefore, including safety provisions in

a contract (as long as they are not in conflict with existing laws) essentially creates a new 'law'.

Most subcontract agreements address safety to some extent, and it is common for

contractual agreements to reference existing laws and regulations. One of the most common

provisions found is for the subcontractor to comply with the OSHA regulations. However, such

provisions only require compliance that is already demanded by law. Most subcontract

agreements do not include substantial provisions that place more rigorous safety standards on the

subcontractors and their employees (Hinze 1997).









CHAPTER 3
METHODOLOGY

Introduction

With the passage of the Occupational Safety and Health Administration (OSH Act), stricter

regulations were placed on employers and the extent of their efforts to protect the safety and

welfare of their workers. At their commencement, the OSHA Standards were grudgingly and

slowly implemented in the construction industry.

Now contractors are taking more proactive measures in advancing the cause of safety.

Contractors are increasingly including provisions related to safety in their subcontract

agreements. By including safety provisions, assuming they do not conflict or undermine existing

laws, the contractor is either reinforcing the existing laws of governing bodies or placing even

stricter requirements on their jobs. Essentially, general contractors are fashioning safety laws for

their proj ects. This chapter focuses on how the study of safety in subcontract agreements was

conducted.

Subcontract Agreements

Laws that were created, or whose importance were reinforced by contractual agreements

between a general contractor and subcontractor were the main focus of this study. The following

details describe how the study of safety in subcontract agreements was conducted.

Obtaining Current Subcontract Agreements

This study was focused on the topic of safety as addressed in subcontract agreements;

therefore it was necessary to obtain a collection of subcontracts that would reflect a good cross-

section of the construction industry. Subcontract agreements were collected through different

means to evaluate and enumerate the inclusion safety in their provisions. A total of 37

subcontract agreements were solicited from willing participants of The Florida Roofing, Sheet









Metal and Air Conditioning Contractors Association (FRSA) as well as local Gainesville, Florida

sub contractors. Some subcontract agreements were also provided by general contractors in

Jacksonville and Orlando, Florida areas.

Obtaining Historical Subcontract Agreements

Subcontract agreements were also obtained to perform a brief historical comparison with

the agreements that are currently being used in the construction industry. These documents were

obtained from an archival record maintained at the M.E. Rinker Sr. School of Building

Construction at the University of Florida. Select documents were chosen from the years 1988-

1990.

Establishing the Validity of the Subcontract Agreements

After evaluating the 2004-2006 subcontract agreements, it was found that only 33 out of

the 37 agreements were valid for this study. Four subcontract agreements were determined to be

invalid for the purpose of this study because:

* one was a contractual agreement between an owner and a general contractor,

* two subcontract agreements were found to be incomplete as they only included the scope
of work, and

* one subcontract agreement consisted of only the odd numbered pages.

No subcontract agreements were discounted because of their lack of safety provisions as

the purpose of this study was to determine the current trends for the inclusion, or lack thereof, of

safety provisions in contractual agreements for subcontracts.

The general contractors who had adopted the subcontract agreements were found to vary in

size. Of the 33 agreements used in this study, ten general contractors were in the Engineering

News Record's Top 400 Contractors list. The remaining general contractors varied in size from

local area state contractors to regional contractors.










Data Coding Sheet Development

To quantify the various safety provision inclusions in the subcontract agreements, a data

coding sheet was developed. After the categories were all identified, the subcontract agreements

were examined again and all safety provisions were coded in the data base. This made the data

conducive to analysis.

Compiling a List of Safety Provisions

In order to create a list of safety provisions to be analyzed, each contract was read in its

entirety and all safety provisions were highlighted. A list of provisions was then generated of all

those that were found within the subcontracts. All provisions that were obscure and only

occurred in one subcontract agreement were set aside as extraneous, and would noted as

anomalies found within agreements.

Organization of the Provisions

The safety provisions found in multiple agreements were organized into categories. The

categories that the safety provisions were divided into were as follows:

* General Provisions
* Safety Provisions: General
* Compliance with Laws and Regulations
* General Contractor's Rights
* Programs, Submittals, and Requirements by Law
-General Safety
-Drugs and Alcohol
-Hazardous Substances
* Safety Meetings and Training
* Detailed Safety Requirements
-Personal Protective Equipment
-Barricading
-Other

Each of the safety provisions was placed into the appropriate category. Each subcontract

agreement was evaluated and all safety-related provisions were examined. Each of these safety









related provisions were noted as being incorporated in the respective subcontract agreements. A

matrix was created detailing if the provisions were included in a particular subcontract

agreement or not. Because the wording of the subcontract agreements did vary, the exact

wording of these provisions was not included, but only the overall intention.

Vague provisions were not categorized into specific groups. For instance, one subcontract

agreement stated, "The Subcontractor shall see to it that their job site supervisor is adequately

trained in the proper and safe use of scaffolding, ladders, power tools, and motorized

equipment," while another stated, "The Subcontractor shall designate a 'competent' person as

defined by OSHA." While the second provision is more specific and refers to the legal status on

a company employee as defined by OSHA, the former provision also requires that there be a

person on site responsible for safety. For the purpose of this study both of these provisions were

considered to be comparable. In cases where such differences occurred between the phrasing of

provisions, they were coded for their intentions. The differences in phrasing are discussed in the

results section of this study.

A supplement to the data coding sheet was also created, listing the provisions that were

unique, namely those found in only one contract. These safety provisions were generally very

detailed in their requirements. They are included in a section at the end of the Results chapter.

Safety Programs

Some of the subcontract agreements also included additional safety requirements in the

form of addenda. Some of these addenda included: company safety programs, site specific

safety policies, drug and alcohol policies, and hazardous communication and substances policies.

These documents were evaluated separately from the data coding sheet. The reason they were

not included in the coding is because some of the subcontract agreements mentioned the

inclusion of additional addenda, however, these were not submitted with the subcontracts.










Therefore, a case study was conducted on an additional safety addendum. It was evaluated in

terms of its safety requirements and whether or not they demanded stricter safety practices than

those mandated by the Occupational Safety and Health Administration.

OSHA Standards

After the subcontract agreements were compiled and coded for the inclusion of safety

provisions, they were compared to the requirements set by the Occupational Safety and Health

Administration (OSHA) Standards for the Construction Industry, Part 1926, and Industry in

general, Part 1910. It was then determined whether or not the provisions established by the

general contractors were more strict than those of OSHA.










CHAPTER 4
RESULTS

Introduction

This chapter presents the results of the analysis of the information obtained from the data

coding sheet used for the subcontract agreements, as well as an historical comparison. Sections

one through seven present information on groupings of related provisions and a comparative

analysis of the provisions from the 2004-2006 subcontracts. The information on the frequency

of use of these provisions is provided as well as actual examples of the provisions found in the

documents. The item number provided after each provision type is the corresponding coding

sheet number that can be found in Appendix A. Section eight is a brief discussion of the

miscellaneous safety provisions that did not recur in multiple provisions. Section nine is a

discussion of changes of the inclusion of safety provisions since approximately 1990. This

comparison was made using a select group of subcontract agreements that were used in 1988-

1990.

Section 1- General Provisions

The following section is a comparative analysis of provisions that are peripherally related

to safety. These provisions were typically found in the general requirements section of the

subcontract documents and not found under a 'safety' subheading. Provisions related to daily

trash removal, protection of work, potable water, toilet facilities, and electricity are included in

this section.

Protection of Work

Generally the protection of work clause only includes protection of the subcontractor's

work, other subcontractors' work, and an agreement to restore any damaged work at no cost to

the general contractor. When worker safety is included in this provision it demonstrates an









attempt to include the safety of workers that usually only addresses protecting work to prevent

damage or delays. As shown in Figure 4-1 a protection of work clause that included the

protection of workers (item 1) was only found in one of the 33 subcontract agreements.

The exact provision is as follows:

RESPONSIBILITY FOR SUBCONTRACTORS WORK. ... Subcontractor further agrees
to provide such protection as is necessary to protect the Proj ect and' the workers of the
Contractor, Owner and' other subcontractors, and adj acent property from Subcontractor's
operations. ... (italics added)

This provision could encompass a variety of safety measures that need to be taken by the

subcontractor. For instance, removing trash from the upper floors of a building could require

such measures as erecting barricades to prevent workers from walking through areas where there

is falling debris or installing trash chutes to safely remove debris from the upper stories.

Providing Potable Water for the Jobsite

Potable water is defined by the Occupation Safety and Health Administration in 29 CFR

1926.51(a)(6) as:

...water which meets the quality standards prescribed in the U.S. Public Health Service
Drinking Water Standards, published in 42 CFR part 72, or water which is approved for
drinking purposes by the State or local authority having jurisdiction.

29 CFR 1926.51(a) outlines the requirements pertaining to potable water as follows:

An adequate supply of potable water shall be provided in all places of employment.

Portable containers used to dispense drinking water shall be capable of being tightly
closed, and equipped with a tap. Water shall not be dipped from containers.

Any container used to distribute drinking water shall be clearly marked as to the nature of
its contents and not used for any other purpose.

The common drinking cup is prohibited.

Where single service cups (to be used but once) are supplied, both a sanitary container for
the unused cups and a receptacle for disposing of the used cups shall be provided.









Five subcontract agreements placed the obligation for providing potable water exclusively

on the subcontractors (item 3) and four placed this requirement on the general contractor (item

2). One of the subcontract agreements stated that the general contractor would provide potable

water, but should the potable water for any reason become unavailable that it was the

subcontractor's duty to provide potable water for its workers. Twenty four of the subcontracts do

not directly address the responsibility of providing potable water for the workers (Figure 4-2).

On the j obs where the general contractor contractually agreed to provide potable water, the

subcontractor could usually safely assume that that legal obligation would be carried out by

another party. However, if the general contractor failed to abide by the agreement, the

subcontractor would still be legally responsible for providing potable water and its

accoutrements for its own employees. In the subcontract agreements where the subcontractor is

explicitly required to provide potable water, it is simply a restatement of the existing OSHA

regulations. In the subcontract agreements where neither party is explicitly listed as being

responsible for providing the potable water, then by law, both bear some of the responsibility of

ensuring that water is provided for the employees. That is, when this issue is not addressed in

the subcontract, the default obligation would be that all employers must provide water for their

own employees.

Providing Toilets for the Jobsite

OSHA requires employers on construction jobsites to provide toilet facilities based on the

number of employees as outlined in section 1926.51l(c). If there are 20 employees or less on a

j obsite then one toilet is required, if there is 20 or more, then one toilet and one urinal is required

for every 40 workers. If there are more than 200 employees on a jobsite, then one toilet and one

urinal is required for every 50 workers.









As shown in Figure 4-3, it was found in the subcontract agreements that 7, or 23%, stated

that the general contractor would provide toilet facilities (item 4) and in two it was stated that the

subcontractor was responsible for providing its own facilities (item 5). Again, one agreement

stated that the general contractor would provide toilet facilities, but should they become

unavailable, it was the subcontractor's responsibility to supply facilities for its own employees.

One of the two subcontract agreements did not explicitly require the subcontractor to

provide toilet facilities, but only the necessary "temporary utilities" to get the job completed.

Twenty-three of the subcontract agreements did not directly address whose duty it would be to

provide the toilets. Providing toilet facilities is required by law, and therefore even if neither

party is designated as being responsible for them, both the general contractor and subcontractor

are mutually responsible. This shared responsibility is clearly stated in the OSHA regulations in

the OSHA Rules of construction, section 1926. 16.

Providing Electric for the Jobsite

Four of the agreements required the general contractor to provide electricity for the j ob

(item 6) and three required the subcontractor to provide their own electricity for their portion of

the work (item 7). This means that 26 of the subcontract agreements did not explicitly address

who was to provide electricity on the proj ect (Figure 4-4). When neither the general contractor

nor the subcontractor is listed as the provider for the electric power on the job, the subcontractors

must assume that they are required to provide it for their own respective portions of work. Note

that OSHA might not consider this to be a direct safety issue.

There is no specific OSHA regulation that requires the employer to provide

electricity/power on the construction site. However, this provision can be related to safety in a

variety of ways. Temporary and/or permanent power is necessary to adequately light work areas










for safe performance. It is also necessary to provide power for equipment, such as fans, to

properly ventilate work areas. Thus, the power requirements have direct implications for safety.

Providing Trash Removal/Dumpsters for the Jobsite

The removal of trash is addressed by the Occupational Health and Safety Administration in

Subpart C, 1926.25(c):

Containers shall be provided for the collection and separation of waste, trash, oily
and used rags, and other refuse. Containers used for garbage and other oily,
flammable, or hazardous wastes, such as caustics, acids, harmful dusts, etc. shall
be equipped with covers. Garbage and other waste shall be disposed of at frequent
and regular intervals.

Out of the 33 subcontract agreements, six explicitly stated that it would be the general

contractor's duty to provide dumpsters/trash removal (item 8) and one of the agreements said it

was the subcontractor's obligation (item 9)(Figure 4-5). In the absence of a provision in the

agreement, the subcontractor cannot assume that this duty will be undertaken by the general

contractor as the subcontractor has an equal responsibility. However, generally this duty is

carried out by the general contractor for efficiency and due to the number of subcontractors that

are typically onsite. It is not reasonable to require each subcontractor to be responsible for

providing trash receptacles for their own waste because of the space constraints found on many

j ob sites.

Section 2- Safety Provisions: General

The following section discusses provisions found in the subcontract agreements that

directly addressed safety. The provisions discussed below related to liability, safety compliance,

safety supervisory roles and responsibilities, cleanliness, worksite conditions and injuries. While

these provisions were directly related to jobsite safety, they were not provisions that described

methods to provide for worker and jobsite safety.









Indemnity Clause

Twenty eight (84.8%) of the subcontract agreements evaluated had a generalized

indemnity clause, however only 15, or 45.4% contained an indemnity clause that was mentioned

within the safety provision that directly related to safety violations. Two contracts also

contained a mutual indemnity clause (items 10a, 10b, 10c) (Figure 4-6). The indemnity

provisions are not included as a worker safety measure, but as a way to prevent legal action that

may be taken against the general contractor should an accident occur.

Contract Compliance

Only three of the subcontract agreements contained a provision requiring subcontractors

and suppliers hired by the subcontractor to abide specifically by the safety provisions contained

within the subcontract agreement; however, five required the subcontractor to include the entire

subcontract as part of the agreement between it and its subcontractors and suppliers (items 1 1a,

11Ib) (Figure 4-7). Only two of the subcontracts contained a provision requiring the

subcontractor to comply with safety regulations contained in the prime contract, or the contract

between the contractor and owner. Again though, twenty six contained provisions incorporating

the prime contract as part of the subcontract documents (item 12a, 12b) (Figure 4-8).

When such provisions are mandated in subcontract agreements they may also be found

within the prime contract, or the contract between the general contractor and the owner. This

creates a chain of responsibility, from the general contractor to the lowest tiered

subcontractor/supplier, to abide by the contents of the prime contract. An example of a typical

provision that requires the subcontractor to comply with safety provisions within the prime

contract is as follows:

.. Subcontractor shall be responsible for initiating, maintaining and supervising safety
precautions and programs in connection with the Work performed or to be performed by









its employees and its subcontractors' employees: (I) as stated in the general conditions of
the General Contract...

An example that explicitly requires compliance with safety from all workers,

subcontractors, and suppliers whether or not directly hired by the general contractor is as

follows:

Subcontractor shall adopt Contractor's Safety Policy attached hereto as Exhibit "I" or a
substantially similar policy for its own employees, agents and representatives who come
onto the job site and shall require its subcontractors and suppliers of any tier who come
onto the job site to do likewise...

The general provisions that require the subcontractor to incorporate the entire agreement in lower

tiered contractual agreements can be found in the scope of work provision or elsewhere in the

contracts that also requires compliance with the prime contract. They would ultimately have the

same effect as requiring the subcontractor to have its suppliers and subcontractors abide by the

contractors safety regulations. General provisions were found more often than one relating

specifically to safety but ultimately general provisions have the same effect as one specifically

requiring lower tiered subcontractor compliance with the safety provisions.

Responsibility for Safety

Fourteen (42.4%) of the agreements contained a provision where the general contractor

stipulated the subcontractor as the sole entity responsible for the health and safety of employees

(item 13). This included not only their employees but also the employees of other subcontractors

and those of the owner who may be affected by or in the vicinity of the subcontractor's work.

Seven of the subcontracts also contained a provision stating that the subcontractor would not

permit its workers to work in unsafe conditions (item 14). Figure 4-9 enumerates the inclusion

of provisions delineating the subcontractor's responsibility for safety. This provision reinforced

the first provision by placing responsibility on the subcontractor for identifying what constituted

a safe working environment.









Conversely, the provision that required the subcontractor to stop work if the general

contractor deemed it unsafe (item 15) did place some responsibility for the safety and welfare of

workers on the general contractor. As shown in Figure 4-10, three of the four subcontract

agreements that contained the provision requiring the stoppage of work if the general contractor

deemed it unsafe also stated that the subcontractor was responsible for safety and health at all

times. The inclusion of both these provisions is somewhat contradictory, allowing both the

subcontractor and general contractor to determine what is safe. However, one general contractor

tried to dismiss this contradiction by including the following clause in its subcontract agreement:

"Failure on the part of Contractor to stop unsafe practices shall, in no way, relieve Subcontractor

of its responsibility."

An example of a provision found in one of the subcontracts that places full responsibility

for safety on the subcontractor was:

Subcontractor is fully responsible for, and shall ensure, the safety of persons and property
in connection with the Work.

A more proactive provision that focused less on liability and emphasized the promotion of safety

and welfare stated the following:

The subcontractor agrees to take all necessary steps to promote safety and health on the job
site.

While many general contractors attempted to assign to the subcontractors the responsibility

for safety, according to the Occupational Safety and Health Administration Standards (29 CFR

1926. 16(a)) this is not entirely possible.

The prime contractor and any subcontractors may make their own arrangements with
respect to obligations which might be more appropriately treated on a job site basis rather
than individually. .

...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.










The provisions that probably most effectively aid in the cause of safer work practices are

those which address safety in a more proactive manner and less as an obligation which one party

is trying to evade.

Cleanliness and Safety

Provisions relating to the daily removal of trash and debris were generally addressed under

a "clean-up" or "housekeeping" subheading. Out of the 33 subcontract agreements 30, or 90.9%,

included a general clean-up provision with no mention of safety (item 16). The main intent of

such provisions is to maintain a clean and orderly working area. This prevents the buildup of

debris that the general contractor may then have to take the onus of clearing. This is especially

true when there are a large number of subcontractors on a jobsite at any given time.

A typical clean-up provision as found in one of the subcontract agreements is as follows:

Subcontractor shall, at its own expense keep the premises at all times free from waste
materials, packaging and other debris accumulated in connection with the Work by
collecting and removing such debris from the j ob site on a daily basis or other basis
requested by Contractor.

While the inclusion of this provision is usually to prevent subcontractors from leaving the j ob in

disorder, it also helps to create a safer j obsite by keeping the work area free of obstructions and

obstacles, allowing tasks to be carried out safely and efficiently.

Figure 4-11 shows the relationship found between the general cleanup provisions and the

cleanup provisions with a specific emphasis on safety. Only one subcontract agreement did not

have either provision. Eight (24.2%) of the subcontract agreements specifically referenced good

housekeeping with an emphasis on safety (item 17). This provision was contained within the

safety section of the subcontract agreement as opposed to the housekeeping section. They

specifically required the work area to be maintained in a "safe and clean" condition. This










provision is merely a restatement of 29 CFR 1926.25(a) in the Occupational Safety and Health

Standards requiring that:

During the course of construction, alteration, or repairs, form and scrap lumber with
protruding nails, and all other debris, shall be kept cleared from work areas, passageways,
and stairs, in and around buildings or other structures.

Including a provision calling for the maintenance of a safe and clean jobsite does not impose any

stricter obligations on the subcontractor than those already required by law.

Safety Supervisor

Seven of the 33 subcontract agreements required the subcontractor to have a person on site

who was responsible for the health and safety of its employees. Four other agreements

specifically required the person responsible for safety to be 'competent' as defined by OSHA

(items 18a, 18b) (Figure 4-12). An example of a provision that explicitly defined the person who

the subcontractor shall provide to oversee safety was:

Subcontractor's Work shall be directed and supervised by a competent person as defined by
OSHA. Such competent person shall have a thorough knowledge of the OSHA regulations
and shall be present at the Proj ect site at all times that Subcontractor's Work is in progress.

OSHA defines competent person in 29 CFR 1926.32(f) as "one who is capable of identifying

existing and predictable hazards in the surroundings or working conditions which are unsanitary,

hazardous, or dangerous to employees, and who has authorization to take prompt corrective

measures to eliminate them." Often it is the subcontractor's foreman or superintendent that is

designated as the competent person since as per the OSHA definition, they must be authorized to

stop work in order to take corrective action for unsafe jobsite conditions.

Other examples of provisions that do not directly reference compliance with OSHA

standards when designating a worker as responsible for safety were:

Subcontractor will agree to provide responsible supervision for this work.









The Subcontractor shall see to it that their j ob site supervisor is adequately trained in the
proper and safe use of scaffolding, ladders, power tools and motorized equipment.

Prior to commencing its Work at the job site, Subcontractor shall designate a responsible
employee at the site whose duty shall be the prevention of accidents. This employee shall
be the Subcontractor's j ob superintendent (or foreman, if there is no superintendent)...

The last two provisions very explicitly defined the safety roles that the jobsite supervisors were

expected to fill while the first provision made no specific mention of safety, but only

'supervision' for the work. The provisions that directly addressed safety and delineated the

responsibilities that the subcontractors' foremen must be capable of executing would be expected

to result in better safety performance.

Notification of Unsafe Work Conditions

As shown in Figure 4-13, nine of the 33 subcontract agreements contained provisions

requiring the subcontractor to notify the general contractor if hazardous or unsafe j obsite

conditions existed (item 19). One such provision that took a very proactive stance concerning

safety was:

Safety is a concern to all of us. If you feel there is a problem in some area, please notify
Contractor's Superintendent immediately.

This particular provision was the leading clause of the General Requirements Scope of Work

Attachment for the subcontract agreement. Placing safety as the number one value in the Scope

of Work emphasized its importance.

The purpose of immediately notifying the general contractor assures that prompt corrective

measures can be taken to abate the hazards and/or unsafe conditions. Another, less altruistic

motive for the inclusion of such a provision is so that not only can the general contractors and/or

subcontractors remedy the unsafe worksite, but also to prevent employee complaints to agencies

such as OSHA. According to OSHA 29 CFR 1960.28(c)










Any employee or representative of employees, who believes that an unsafe or unhealthful
working condition exists in any workplace where such employee is employed, shall have
the right and is encouraged to make a report of the unsafe or unhealthful working condition
to an appropriate agency safety and health official and request an inspection of such
workplace for this purpose.

By taking prompt action to correct unsafe or unhealthful work conditions, the general contractor

and subcontractor can avoid any fines or shut downs that could result from an OSHA inspection.

Jobsite Injuries

Nine of the 33 subcontract agreements contained provisions that required the subcontractor

to notify the general contractor of any injuries. Figure 4-14a shows the breakdown on the time

the subcontractor has to report the injuries. Six required the injuries to be reported immediately,

two required them to be reported within 24 hours, and one required any injury to be reported

within three days (items 20a, 20b, 20c). Of those nine agreements, six required the subcontractor

to also complete an accident report to submit to the general contractor (item 21) (Figure 4-14b).

One subcontract agreement that contained both provisions stated:

The Subcontractor shall report to the Contractor within 24 hours an injury to an employee
or agent of the Subcontractor which occurred on the site.

Subcontractor shall furnish the Contractor within three (3) days of any accidents)
occurring on the job, two copies of a completed accident report in the form usually
required by Worker's Compensation, Public Liability and Property Damage insurance
policies.

The general contractor can have many different motivations for wanting the subcontractor

to report any injuries that occur on the job site. The general contractor may want to be advised of

any injuries for insurance purposes, to perform an accident investigation (and take any corrective

measures to prevent further accidents), or to have the data available should OSHA investigate.

Also, depending on the severity of the accident, the general contractor may need to arrange for

medical assistance. Should OSHA investigate the accident/injury, it is beneficial for the

contractor to have pertinent information on hand. According to OSHA standard 29 CFR










1960.29(d) "the investigative report of the accident shall include appropriate documentation on

date, time, location, description of operations, description of accident, photographs, interviews of

employees and witnesses, measurements, and other pertinent information."

A provision that addresses more immediacy for reporting injuries would be more suitable

for investigation purposes as well as to provide any necessary medical attention. An example of

a provision that mandated this was:

Subcontractor shall notify Contractor immediately following any accident and promptly
confirm the notice in writing.

This provision expresses the seriousness and importance of safety by requiring the subcontractor

to report accidents without delay. It does not allow a window of time for reporting and may

dissuade the practice of non-reporting or under-reporting of injuries.

Section 3- Compliance

The following section is a comparison of three safety provisions that are related to

compliance with applicable laws and safety recommendations. The three provisions discussed

required compliance with:

* Laws, ordinances, rules and regulations
* OSHA, and
* Reasonable recommendations of insurance companies.

Applicable Safety Laws and Regulations

Twelve of the 33 subcontract agreements included a provision requiring the subcontractor

to comply with applicable safety laws, ordinances, rules and regulations. Twenty one

agreements require the subcontractor to comply with all laws, ordinances, rules and regulations.

Nine agreements contain both iterations (item 22a, 2b) (Figure 4-15). Twenty one (63.6%)

required the subcontractor to comply with the OSHA Regulations (item 23). One of the two

agreements that required the subcontractor to comply with reasonable safety recommendations of









their insurance companies also included compliance with OSHA (item 24) (Figure 4-16). One of

the 33 contracts included all three of these provisions. Two examples of provisions that required

subcontractor compliance with different safety regulating entities were:

Subcontractor shall comply with the reasonable recommendations of insurance companies
having an interest in the Proj ect...

Subcontractor shall take safety precautions with respect to performance of this
Subcontract, shall comply... with applicable laws, ordinances, rules, regulations and orders
of OSHA and public authorities for the safety of persons or property on the proj ect.

The first provision required the subcontractor to enact the safety recommendations of its

insurance company. Some insurance companies are more involved with their client's safety

performance. These proactive insurance companies may make jobsite inspections and offer

recommendations for safer job performance. Requiring the subcontractor to comply with the

insurance carrier's recommendations does go beyond what is required by law; however, liability

for safety may then be shifted. This shift in liability would be due to the insurance company

assuming the responsibility of ensuring a safe jobsite. It could also then be argued that the

general contractor is liable by mandating that the subcontractor comply with the

recommendations of the insurance company.

The second provision required subcontractor compliance with applicable safety laws and

regulations. Requiring the subcontractor to comply with OSHA or existing laws for the area

where the work is performed does nothing more than reinforce safety performance measures

mandated by law. The general requirements of OSHA are outlined in 29 CFR 1926.20(a)(1):

Section 107 of the Act requires that it shall be a condition of each contract which is entered
into under legislation subj ect to Reorganization Plan Number 14 of 1950 (64 Stat. 1267),
as defined in 1926. 12, and is for construction, alteration, and/or repair, including painting
and decorating, that no 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.









In summation, OSHA requires all employers to provide a safe and healthful work environment

for all employees as well as necessary requisite training to maintain such an environment.

The provision also requires compliance with all applicable safety laws. This can include

any local or state laws. Including provisions requiring conformance with 'applicable laws,

ordinances, rules, and regulations' only serves to reinforce legal safety requirements; however, if

specific laws affecting the work of subcontractors were presented to them for the local area,

greater strides would be made for safer performance on the jobsite. This is especially true for

subcontractors who may be from another area and may not be familiar with the local and state

laws. For instance, including specific mention of laws such as Florida's Call-Before-You-Dig

law required under the Underground Facility Damage Prevention and Safety Act would make the

subcontractor aware of specific safety measures that needed to be taken into account for the state.

This law requires anyone performing construction work to have all underground utilities marked

for the duration of the proj ect. Including specific laws pertinent to the subcontract agreement

can only serve to reinforce and improve j obsite safety performance.

Section 4- General Contractor's Rights

The provisions discussed in this section related to the general contractor' s rights with

regard to safety. These provisions allowed the general contractor to intervene when the

subcontractor failed at their duties and when j obsite safety was threatened. One set of provisions

allowed the general contractor to prohibit j obsite access for safety violations. Other provisions

discussed were related to enforcement of provisions, the contractor' s rights to maintain j obsite

safety at the expense of the subcontractor, and the contractor' s rights to instruct subcontractor

employees.









Restrict Job Site Access

Figure 4-17 shows the inclusion of the provisions relating to the general contractors right

to restrict jobsite access. Seven of the 33 subcontract agreements permitted the general

contractor to bar workers from the site for safety violations, drug/alcohol use, fighting, or

possession of weapons (item 25) and two subcontract agreements permitted the Contractor to bar

any party from the site who did not abide by or enforce safety policies established for the j ob site

(item 26). The latter provision provides the general contractor more authority for enforcing

jobsite safety with both those who have privy of contract and those who do not. For instance, if

a subcontractor's supplier is unloading materials in an unsafe manner, the general contractor can

remove both the supplier and the party who is responsible for enforcing the safety policy (the

subcontractor) from the premises.

Three examples of typical provisions found within the subcontract agreements were:

Anyone found on the jobsite under the influence (of drugs and alcohol) may be banned
from this proj ect.

(Contractor may) temporarilyy or permanently bar specific personnel from the site for
reasons such as but not limited to the following:

Drug or alcohol use
Safety violations
Fighting, possession of weapons...
Failure to cooperate with Contractor's supervisory personnel or to comply with
proj ect documents

If Subcontractor, or any person who enters the j ob site under an employment or a direct or
indirect contractual arrangement with Subcontractor, fails to enforce the said Safety Policy
or substantially similar policy, Contractor shall have the right to bar such party from the
job site.

These types of provisions serve to reduce the possibilities of accidents and injuries from

occurring on the j obsite. They also are a means for the general contractor to reduce liability by

not allowing such activities to ensue without taking the proper corrective actions.









Waiver of Provisions

Four of the 33 subcontract agreements contained a stipulation stating that the general

contractor's failure to enforce a safety provision is not a waiver of the provision. Six also

contained general non-waiver provisions (items 27a, 27b) (Figure 4-18). A typical provision that

specifically mentioned safety was as follows:

Contractor's failure to stop Subcontractor's unsafe practices shall not relieve Subcontractor
of the responsibility therefore.

This provision did not directly state that the general contractor's failure to act is not a 'waiver' of

the safety provisions. However, that is the intent of the clause. Another provision that directly

addressed the non-waiver of provisions was:

The failure of Contractor to insist, in any one or more instances, upon the performance of
any of the terms, covenants or conditions of this Subcontract; or to exercise any right
herein, shall not be construed as a waiver or relinquishment of such term, covenant,
condition or right as respects further performance.

The purpose for including provisions such as this is to reduce liability for the general

contractor should the subcontractor fail to abide by any of the provisions, specifically if the

general contractor fails to demand compliance with the provision. This is especially important

with respect to safety performance since OSHA allows the subcontractor and general contractor

to somewhat define their job site safety responsibilities. However, the inclusion of such

provisions does not do anything to enhance job site safety performance.

Maintaining a Safe Job Site

Figure 4-19 shows that seven of the 33 subcontract agreements contained provisions

allowing the general contractor to take action to correct safety deficiencies at no cost to the

general contractor or to withhold payments until the subcontractor complied with job site safety

requirements (item 28). Two examples of provisions related to the correction of unsafe

conditions were:









Should Subcontractor neglect to adopt such corrective (safety) measures, Contractor may,
but shall be under no obligation, to perform them and deduct the cost from payments due
or to become due Subcontractor.

.. the Contractor without prejudice to any rights or remedies shall have the right to any or
all of the following remedies:

b) contract with one or more additional contractors, to perform such
part of the Subcontractor's Work as the Contractor shall determine
will provide the most expeditious completion of the Work and
charge the cost thereof to the Subcontractor;
c) withhold payment of any moneys due the Subcontractor pending
corrective action in amounts sufficient to; cover losses and compel
performance to the extent required by and to the satisfaction of the
Contractor and Owner; and
d) in the event of an emergency affecting the safety of persons or
property; the Contractor may proceed as above without notice.

The second provision was much more encompassing of the general contractor's rights to

take corrective measures on the job site. The second provision also emphasized the importance

of safety by permitting the general contractor to correct safety deficiencies immediately and

without notifying the subcontractor. The general contractor's right to remedy safety deficiencies

and backcharge for them makes it more likely that subcontractor's would be cognizant of

maintaining a safe work environment, especially under threat of incurring extra costs that can be

avoided.

Instructing Subcontractor Employees

Two of the 33 subcontract agreements had provisions stating that the general contractor

would never give instructions to the subcontractor's employees except in emergencies (item 29)

and three stated that the contractor would never instruct the subcontractor's employees (item 30)

(Figure 4-20). These provisions are only intended to shift liability. The intent of this provision

is to make it clear that the general contractor is not directing the means and methods of the

subcontractor. The inclusion of such provisions does nothing to aid in job site safety

performance. However, the provisions that stated that the general contractor will direct









subcontractor's employees in an emergency did demonstrate the general contractor's concern for

safety and well being of all workers on the site.

Section 5- Programs, Submittals, and Requirements by Law

Safety program submission provisions and safety information submittals required from the

subcontractor are discussed in this section. Provisions mandating subcontractor compliance with

the general contractor's safety programs/policies are also evaluated. There are two sections

devoted to drugs and alcohol and two sections discussing hazardous substances.

Safety Information Submission

Eight of the 33 subcontract agreements required the subcontractor to submit their

company's general safety program. One of the two subcontracts that required the subcontractor

to submit any additional safety information that the general contractor requested also required

the subcontractor to submit the company safety program. Three subcontracts specifically

required proj ect specific safety programs to be submitted by the subcontractor (items 31la, 31Ib,

32) (Figure 4-21). The establishment and maintenance of a company safety program is required

by OSHA standard 29 CFR 1926.20(b):

Accident prevention responsibilities.

(1) It shall be the responsibility of the employer to initiate and maintain such
programs as may be necessary to comply with this part.

(2) Such programs shall provide for frequent and regular inspections of the
job sites, materials, and equipment to be made by competent persons
designated by the employers.

The following are typical generic provisions that required the subcontractor to submit its

safety program to the general contractor:

.. Subcontractor must have an established safety program as well.

.. and (the Subcontractor) will submit its own safety program, which shall be at least as
stringent as Contractor's safety program.









The requirements set forth by these provisions did not adequately address safety. They did not

require the subcontractor to provide a proj ect specific safety program nor did it demand any

conformity to safety standards such as the OSHA regulations.

The following was a provision that required a more proj ect specific safety program:

Subcontractor shall establish a safety program implementing safety measures, policies and
standards conforming to those required or recommended by government and quasi-
governmental authorities having jurisdiction and by the Contractor and Owner, including,
but not limited to, requirements imposed by the Contract Documents.

This provision required the subcontractor to develop a safety program that would conform to the

project requirements as well as comply with any government safety authorities for the area. This

would include state and local agencies as well as OSHA. Establishing a safety program to

conform to the requirements of this provision would more adequately prepare the subcontractors

and their workers for job specific safety hazards.

Two of the subcontract agreements also required that any safety information the general

contractor requested would be provided. One provision stated "and (Subcontractor) shall supply

any requested safety information." The general contractor could have used this provision to

require the subcontractor to submit any company safety information including, experience

modification rates (EMR) or OSHA recordable injury rates. Both of these are measurements of a

contractor's safety performance and are often used for pre-qualification and insurance purposes.

The other provision found in the subcontract agreements was more specific and required the

subcontractor to submit evidence of safety compliance upon request. This provision would be

more beneficial for current proj ect safety performance allowing the general contractor to ensure

that its subcontractors are in compliance with applicable safety standards.









Contractor's Safety Policy

Eighteen (54.5%) of the 33 subcontract agreements required the subcontractor to comply

with the general contractors safety policy (item 33). Also, nine (27.3%) of the agreements

included additional addenda or attachments related to safety (item 34) (Figure 4-22). These

attachments included safety policies, drug and alcohol abuse policies, or policies on hazardous

substances.

An example of a provision requiring subcontractor compliance with the general contractor

safety policy was:

Subcontractor will cooperate with Contractor on any overall safety program for the Proj ect
(including prevention and reporting of substance abuse)...

This provision mandated subcontractor compliance on a safety program that was specifically

designed for the proj ect. Job specific safety programs result in safer job performance.

Not all of the safety attachments referenced in the provisions of the subcontract agreements

were submitted to this study. Therefore, a review of only one of the attached general contractor's

safety policies was conducted. A brief discussion of this safety policy can be found in Appendix



Drug and Alcohol Policy

Three of the 33 subcontract agreements contained a provision requiring the subcontractor

to comply with the general contractor's drug and alcohol policy (item 35) and another three

contained a provision that required the subcontractor to implement and enforce its own substance

abuse control program (item 36). Three subcontract agreements also required that none of the

subcontractor's employees be under the influence, possess, or consume drugs or alcohol (item

37). Figure 4-23 shows the breakdown of the inclusion of drug and alcohol policy provisions in

the subcontracts.









An example of a provision requiring compliance with the general contractor's drug and

alcohol abuse policy was:

The Subcontractor acknowledges the receipt of (Contractor's) "Safety, Health and
Environmental Policy", "Drug and Alcohol Abuse Policy" and "Sexual Harassment
Policy". Subj ect to applicable law this Subcontractor further agrees to be bound to these
policies as a part of the supplemental and special conditions to the contract for construction
of the proj ect.

A typical provision that required the subcontractor to implement a safety program is as follows:

If requested by Contractor, Subcontractor agrees to implement, administer and enforce a
substance abuse control program. Contractor shall have no responsibility with regard to
such implementation, administration and enforcement.

Both of these provisions did not explicitly state the control measures which must be taken with

regard to the substance abuse programs. Drug and alcohol abuse programs could require

prescriptive measures such as at-hire drug testing, random drug testing, or drug testing following

accidents. It could also have included drug abuse education or programs to rehabilitate workers

found abusing drugs and/or alcohol.

Another provision that was more definitive in its drug and alcohol policy requirements was

the following:

Subcontractor agrees that no persons under its employ shall bring onto, possess, sell or use
alcohol, narcotics, drugs (other than prescription drugs, provided the person in possession
of the drug has a valid prescription in his or her name, or over-the-counter drugs which
may be purchased legally by the person), or controlled substances while on the
construction site, including parking lots, at any time, including all breaks and lunch
periods. Subcontractor further agrees that no persons under its employ shall report to, or
commence, or continue to work while under the influence of alcohol or any drugs,
regardless of whether those drugs were legally or illegally taken. Subcontractor otherwise
agrees to comply with all applicable Federal, State or other governmental requirements
which may exist pertaining to alcohol and drug and related testing programs, as may be in
effect or be required to be instituted.

This provision specifically required the subcontractor to know and determine whether its

employees were under the influence of drugs and/or alcohol while on the jobsite. Determining









whether or not employees are impaired on the jobsite is very important for the safety and welfare

of not only that worker, but those involved in work tasks with or near the impaired employee.

Drug and Alcohol Laws

Four of the 33 subcontract agreements required the subcontractor to comply with Drug

Free Workplace Statutes, specifically requiring compliance with Florida Statutes 440.101 and

440.102 (item 38) (Figure 4-24). Florida Statute 440 is for Workers Compensation and has

specific requirements for maintaining a drug free work environment. Florida Statute 440.101

states the legislative intent for a drug free workplace:

(1) It is the intent of the Legislature to promote drug-free workplaces in order that
employers in the state be afforded the opportunity to maximize their levels of productivity,
enhance their competitive positions in the marketplace, and reach their desired levels of
success without experiencing the costs, delays, and tragedies associated with work-related
accidents resulting from drug abuse by employees. It is further the intent of the Legislature
that drug abuse be discouraged and that employees who choose to engage in drug abuse
face the risk of unemployment and the forfeiture of workers' compensation benefits.

(2) If an employer implements a drug-free workplace program in accordance with s.
440.102 which includes notice, education, and procedural requirements for testing for
drugs and alcohol pursuant to law or to rules developed by the Agency for Health Care
Administration, the employer may require the employee to submit to a test for the presence
of drugs or alcohol and, if a drug or alcohol is found to be present in the employee's system
at a level prescribed by rule adopted pursuant to this act, the employee may be terminated
and forfeits his or her eligibility for medical and indemnity benefits. However, a drug-free
workplace program must require the employer to notify all employees that it is a condition
of employment for an employee to refrain from reporting to work or working with the
presence of drugs or alcohol in his or her body and, if an injured employee refuses to
submit to a test for drugs or alcohol, the employee forfeits eligibility for medical and
indemnity benefits.

The following is an example of a provision that required compliance with Drug Free

Workplace statutes:

Subcontractor shall comply with the provisions of the Drug Free Workplace Statutes
including, but not limited to, Sections 44.101 and 440.102, Florida Statutes, and shall
implement and maintain a drug free environment.









Including similar provisions in the subcontract agreements does not place any more stringent

safety requirements on subcontractors than those already required by law.

Hazardous Substance Laws

Three of the 33 subcontract agreements contained provisions that required the

subcontractor to abide by the contractor's hazardous communication program and three others

required the subcontractor to provide their own hazardous communication program(items 39a,

39b) (Figure 4-25). Sixteen (48.5%) required compliance with MSDS requirements (item 40), 5

required proper disposal of hazardous substance (some citing applicable laws) (item 41), and 5

required the subcontractor to stop work and inform the general contractor if asbestos or

polychlorinated biphenyl or any other hazardous substance was found to be present (item 42).

Figure 4-26 shows the overlapping occurrence of the inclusion of these three provisions.

Including any of these provisions does not place stricter requirements on the subcontractor and

only restates the subcontractor's obligations to comply with existing laws.

OSHA requires a hazardous material program under standard 29 CFR 1926.65(b)(1) which

states:

(i)Employers shall develop and implement a written safety and health program for their
employees involved in hazardous waste operations. The program shall be designed to
identify, evaluate, and control safety and health hazards, and provide for emergency
response for hazardous waste operations.

(ii)The written safety and health program shall incorporate the following:

(A) An organizational structure;
(B) A comprehensive workplan;
(C) A site-specific safety and health plan which need not repeat the employer's
standard operating procedures required in paragraph (b)(1)(ii)(F) of this
section;
(D) The safety and health training program;
(E) The medical surveillance program;
(F) The employer's standard operating procedures for safety and health; and
(G) Any necessary interface between general program and site specific
activities.











A typical provision that required the subcontractor to comply with the general contractor's

hazardous communication program was:

It is expressly understood and agreed that Subcontractor will comply with Contractor's
"Hazard Communication Program," as outlined in Contractor's Subcontractor Safety
Program .

Requiring the subcontractor to comply with the general contractor's hazardous communication

program only reinforces existing laws. It also relieves the subcontractor of having to create their

own program. The provision provides for a uniform response from all workers and employees

on the job site.

Other provisions related to hazardous materials on the j obsite were provisions related to

material safety data sheet (MSDS) requirements such as the following:

Subcontractor shall furnish a copy to Contractor the applicable Material Safety Data Sheets
(MSDS) for all hazardous materials or chemicals used in connection with or consumed or
incorporated into this Proj ect as required by the Hazard Communication Standard of the
Occupational Safety and Health Administration (OSHA).

Requiring the subcontractor to provide MSDSs on all toxic and hazardous substances that they

bring on site is also only a reinforcement of existing laws. Under OSHA standard 29 CFR

1910.1200(g)(1):

Chemical manufacturers and importers shall obtain or develop a material safety data sheet
for each hazardous chemical they produce or import. Employers shall have a material
safety data sheet in the workplace for each hazardous chemical which they use.

The standard continues by stating all of the information that is required on the MSDS form,

including but not limited to the common name, ingredients determined to be health hazards,

physical and chemical characteristics, signs of exposure, and the OSHA permissible exposure

limit.

There are also many different laws related to the proper disposal of hazardous substances.

An example of a provision found in one of the subcontract agreements was:









Subcontractor agrees not to dispose of any hazardous waste, asbestos, PCB's or VOC's,
including but not limited to paints, solvents, cleaning compounds, degreasers, paint
thinners, or any other associated products and their respective containers in any
dumpster(s) unless specifically designated for such purpose. ..

All haul off and disposal of debris and hazardous waste shall be by Subcontractor in
accordance with Specifications, Contract Documents, EPA, local, county and state and any
other associated agencies.

The illegal and inappropriate disposal of hazardous wastes can have adverse affects on the health

and safety of the construction workers as well as any others who may come into contact with the

substances without adequate protection. The disposal of hazardous substances also needs to be

controlled to prevent detrimental affects on the environment.

There are various laws that manage the disposal of hazardous substances. The

Environmental Protection Agency (EPA) has established standards for the handling,

transportation, and disposal of hazardous substances. The EPA also allows states to establish

their own laws providing they are at least as stringent as those of the EPA. In conjunction with

the EPA's laws, CERCLA gives further authority to the government to respond when necessary

to provide hazardous waste clean up. It is a 'superfund' that the federal government can use for

immediate response and then later pursue the parties responsible for the contamination for up to

three times the amount. By including a provision that specifically sites this law, the general

contractor is making the subcontractor liable for any monies that they might otherwise try to

recover from the general contractor for the subcontractor's inaction or improper disposal of

hazardous substances.

Lastly, OSHA also mandates proper disposal of hazardous and flammable substances (and

other waste) in designated containers in standard 29 CFR 1926.25(c):

Containers shall be provided for the collection and separation of waste, trash, oily and used
rags, and other refuse. Containers used for garbage and other oily, flammable, or hazardous
wastes, such as caustics, acids, harmful dusts, etc. shall be equipped with covers. Garbage
and other waste shall be disposed of at frequent and regular intervals.










Also, OSHA regulation 29 CFR 1926.65 deals with Hazardous Waste Operations and

Emergency Response (HAZWOPER). This section is more specific with regards to waste

disposal and references other regulations that need to be followed. OSHA also has established

standards that delineate how common hazardous substances found on construction sites need to

be stored and disposed of properly.

One of the specific hazardous substances that OSHA addresses is asbestos. Standard 29

CFR 1926. 1101 contains procedures for the protection of workers and proper disposal or

encapsulation of asbestos. A typical provision that required the subcontractor to notify the

general contractor of the presence of asbestos was:

In the event the Subcontractor encounters on the site material reasonably believed to be
asbestos or polychlorinated biphenyl (PCB) which has not been rendered harmless, the
Subcontractor shall immediately stop Work in the area affected and report the condition to
the Contractor in writing.

A reason the general contractor may have required notification of any asbestos present on the

jobsite is because OSHA standard 29 CFR 1926. 1101(d)(5) states that:

All general contractors on a construction proj ect which includes work covered by this
standard shall be deemed to exercise general supervisory authority over the work covered
by this standard, even though the general contractor is not qualified to serve as the asbestos
"competent person" as defined by paragraph (b) of this section. As supervisor of the entire
proj ect, the general contractor shall ascertain whether the asbestos contractor is in
compliance with this standard, and shall require such contractor to come into compliance
with this standard when necessary.

Therefore, if any asbestos is found on the j ob site, it is ultimately the general contractor's

responsibility to ensure that all workers on the job site comply with OSHA standard 29 CFR

1926.1101.

Permission for Hazardous Substances

Three of the 33 subcontract agreements contained provisions requiring the subcontractor to

give written notice of hazardous substances it will bring on site (item 43), four agreements









required the approval of the architect or owner for hazardous substances to be brought on the j ob

site, and one expressly forbid the subcontractor from bringing hazardous substances on the j ob

site (items 44a, 44b). Figure 4-27 shows the allowances and permission required to bring

hazardous substances on the job site. A hazardous substance is defined by OSHA in Standard 29

CFR 1926.65(a) (3) as any substance,

exposure to which results or may result in adverse affects on the health or safety of
employees:

(A) Any substance defined under section 101(14) of CERCLA;

(B) Any biological agent and other disease-causing agent which after release into the
environment and upon exposure, ingestion, inhalation, or assimilation into any person,
either directly from the environment or indirectly by ingestion through food chains, will or
may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer,
genetic mutation, physiological malfunctions (including malfunctions in reproduction) or
physical deformations in such persons or their offspring;

(C) Any substance listed by the U.S. Department of Transportation as hazardous materials
under 49 CFR 172.101 and appendices; and

(D) Hazardous waste as herein defined.

and, hazardous waste is defined as:

(A) A waste or combination of wastes as defined in 40 CFR 261.3, or

(B) Those substances defined as hazardous wastes in 49 CFR 171.8.

An example of a provision that required the subcontractor to forewarn the general contractor of

hazardous substances that it may bring on site is as follows:

If hazardous substances of a type of which an employer is required by law to notify its
employees are being used on the site by the Subcontractor, the Subcontractor's Sub-
subcontractors or anyone directly or indirectly employed by them, the Subcontractor shall,
prior to harmful exposure of any employees on the site to such substance, give written
notice of the chemical composition thereof to the Contractor in sufficient detail and time to
permit compliance with such laws by the Contractor, other Subcontractors and other
employees on the site.

Giving written notice to the general contractor allowed enough time for all other workers and

subcontractors to receive notice and proper safety training for dealing with the hazardous










substances. It also ensured that all applicable Material Safety and Data Sheets are available on

the jobsite as required by the OSHA Standards.

As a further step taken to control the hazardous substances that may be brought on site, six

subcontract agreements included provisions mandating that no hazardous substances were

allowed to be brought on site. A typical provision stated:

The Subcontractor warrants and agrees that it will not introduce, release, distribute, or
otherwise cause the introduction into any area, any toxic, pollutant, contaminate, or
hazardous materials including but not limited to, asbestos, fuels, petroleum products, and
PCB's.

In some instances, this included a stipulation that hazardous substances could be brought on site

with the approval of the architect or owner.

Section 6- Safety Meetings and Training

The following section is an analysis of provisions related to safety meetings and training.

This included provisions requiring the subcontractor to conduct their own safety meetings and

training as well as mandating that the subcontractor attend those conducted by the general

contractor.

Conducted by Subcontractor

Ten (32%) of the 33 subcontract agreements required the subcontractor to conduct weekly

safety/toolbox meetings (item 45) and moreover, they required the subcontractor to provide a

copy of the meeting minutes to the general contractor (item 46). Also, three of these agreements

required the subcontractor to conduct new hire safety training (item 47) (Figure 4-28).

Scheduled safety meetings are not specifically required by OSHA. As such, this was an

increased safety measure enforceable and effectively made a law through the subcontract

agreement. Safety meetings are an effective means of communicating information about hazards










or safety rules that may have become applicable to the project. A provision that required the

subcontractor to conduct weekly safety meetings stated:

The Subcontractor shall schedule a weekly safety meeting onsite for his personnel.

The subcontract continues:

Minutes shall be kept and attendance shall be taken. Copies of each shall be provided to
(Contractor) for inclusion in (Contractor's) site safety records manual.

By requiring the subcontractor to furnish proof of the meeting, the general contractor ensured

that the safety meetings were conducted. The proof of the meetings to be included in the

contractor's records manual served to decrease the contractor's liability since the subcontractor

has purportedly reported necessary safety information to its workers. Furthermore, should the

subcontractor have neglected necessary safety information, the general contractor is able to bring

it to the subcontractors attention for remediation.

Four of the contracts that contained provisions similar to those above also contained

provisions on conducting new hire training. A typical provision stated:

(Subcontractor shall) immediately instruct new employees of safety requirements and
hazards before allowing them to work.

Inclusion of such a provision does not require any more stringent demand than those placed on

the employer by OSHA part 29 CFR 1926.21 Safety training and education:

(a) General requirements. The Secretary shall, pursuant to section 107(f) of the
Act, establish and supervise programs for the education and training of
employers and employees in the recognition, avoidance and prevention of
unsafe conditions in employment covered by the act.
(b) Employer responsibility.
(1) The employer should avail himself of the safety and health training
programs the Secretary provides.
(2) The employer shall instruct each employee in the recognition and avoidance
of unsafe conditions and the regulations applicable to his work environment
to control or eliminate any hazards or other exposure to illness or injury.
(3) Employees required to handle or use poisons, caustics, and other harmful
substances shall be instructed regarding the safe handling and use, and be









made aware of the potential hazards, personal hygiene, and personal
protective measures required.
(4) In job site areas where harmful plants or animals are present, employees
who may be exposed shall be instructed regarding the potential hazards, and
how to avoid injury, and the first aid procedures to be used in the event of
mnjury.
(5) Employees required to handle or use flammable liquids, gases, or toxic
materials shall be instructed in the safe handling and use of these materials
and made aware of the specific requirements contained in Subparts D, F,
and other applicable subparts of this part.
(6)(i) All employees required to enter into confined or enclosed spaces shall be
instructed as to the nature of the hazards involved, the necessary precautions
to be taken, and in the use of protective and emergency equipment required.
The employer shall comply with any specific regulations that apply to work
in dangerous or potentially dangerous areas.
(ii) For purposes of paragraph (b)(6)(i) of this section, "confined or enclosed
space" means any space having a limited means of egress, which is subj ect
to the accumulation of toxic or flammable contaminants or has an oxygen
deficient atmosphere. Confined or enclosed spaces include, but are not
limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust
ducts, sewers, underground utility vaults, tunnels, pipelines, and open top
spaces more than 4 feet in depth such as pits, tubs, vaults, and vessels.

As found in this part, OSHA also requires specific hazard training determined by the hazards to

which the employee will be exposed. This can include training for the proper use of fall

protection or the handling of hazardous materials.

Conducted by General Contractor

Seven of the 33 subcontract agreements required the subcontractor to attend the

contractor's weekly subcontractor safety meetings and one required the subcontractor to attend

monthly safety meetings (items 48a, 48b). Of these, two required the subcontractor to participate

in a safety committee (item 49). Five of the subcontracts requiring the subcontractors presence

at the general contractors safety meeting, also required the subcontractor to conduct their own

safety meeting and provide minutes (Figure 4-29). Again, safety meetings are not mandated by

the OSHA Standards. Regularly scheduled safety meetings are a safety measure that exceed the










OSHA requirements and are an effective means of educating employees on safer work practices.

A typical provision stated:

Each employee shall attend the weekly jobsite safety meeting. This meeting shall be
administered by the designated person under the full supervision of the proj ect
superintendent.

This subcontract agreement was also the only one that contained a provision relating to a safety

committee. This provision stated:

Subcontractors shall participate in the Jobsite Safety Committee, by assigning a designated
person. The safety committee shall be created under the supervision of the project
superintendent.

Requiring the subcontractor to participate in the general contractor's safety meeting

demonstrates the importance that the general contractor places on safety. However, the meeting

may have a more profound impact if the upper management were to attend and not only the

superintendent. Top management involvement in safety results in safer work performance.

Also, involving all of the subcontractors in the safety committee allows contributions from all

trades on the job site to have input in the variety of safety matters that may need to be addressed.

Requiring involvement in a safety committee demonstrates a commitment to safety and a

dedicated team effort for producing a safe and healthful work environment.

Section 7- Detailed Safety Requirements

This section discusses provisions that delineate specific safety requirements. These

provisions directly address worker safety. There were multiple provisions related to personal

protective equipment, barricading, and hoisting which were compared. Safety provisions related

to lighting, electric grounding, underground utilities, fall protection, safety kits, equipment

operation, jobsite distractions, and fire safety were also analyzed.









Personal Protective Equipment


Eight of the 33 subcontract agreements contained provisions with the general personal

protective equipment requirement and/or proper dress for construction work (item 50). Eleven of

the agreements specifically required hard hats (item 51), two required hard sole or steel toed

shoes (item 52), and one mandated the use of safety glasses (item 53) (Figure 4-30). Two typical

safety provisions requiring the use of personal protective equipment were as follows:

Hard hats and safety glasses are mandatory.

Subcontractor shall see to it that their j obsite personnel are properly dressed (hard hats,
hard shoes, shirts, pants, etc.) and that they are provided with all necessary safety wear and
equipment, and tools necessary to safely perform the tasks assigned to them.

The provisions found in the subcontract agreements relating to personal protective equipment do

not go above and beyond what is already required by the OSHA Standards. OSHA's general

safety provision under Subpart C relating to personal protective equipment is as follows:

1926.28(a)

The employer is responsible for requiring the wearing of appropriate personal protective
equipment in all operations where there is an exposure to hazardous conditions or where
this part indicates the need for using such equipment to reduce the hazards to the
employees.

1926.28(b)

Regulations governing the use, selection, and maintenance of personal protective and
lifesaving equipment are described under Subpart E of this part.

OSHA also has standards relating to the use of personal protective equipment on construction

sites and hazards that may be encountered:

1926.95

(a) "Application." Protective equipment, including personal protective equipment for eyes,
face, head, and extremities, protective clothing, respiratory devices, and protective shields
and barriers, shall be provided, used, and maintained in a sanitary and reliable condition
wherever it is necessary by reason of hazards of processes or environment, chemical
hazards, radiological hazards, or mechanical irritants encountered in a manner capable of









causing injury or impairment in the function of any part of the body through absorption,
inhalation or physical contact.

(b) "Employee-owned equipment." Where employees provide their own protective
equipment, the employer shall be responsible to assure its adequacy, including proper
maintenance, and sanitation of such equipment.

(c) "Design." All personal protective equipment shall be of safe design and construction
for the work to be performed.

The specific requirements for head protection are found in 29 CFR 1926. 100:

(a) Employees working in areas where there is a possible danger of head injury from
impact, or from falling or flying obj ects, or from electrical shock and burns, shall be
protected by protective helmets.

(b) Helmets for the protection of employees against impact and penetration of falling and
flying obj ects shall meet the specifications contained in American National Standards
Institute, Z89. 1-1969, Safety Requirements for Industrial Head Protection.

(c) Helmets for the head protection of employees exposed to high voltage electrical shock
and burns shall meet the specifications contained in American National Standards Institute,
Z89.2-1971.

The specific requirements for footwear are found in 29 CFR 1926.96:

Safety-toe footwear for employees shall meet the requirements and specifications in
American National Standard for Men's Safety-Toe Footwear, Z41.1-1967.

The specific requirements for eye protection are found in 29 CFR 1926. 102:

(a) (1) Employees shall be provided with eye and face protection equipment when
machines or operations present potential eye or face injury from physical, chemical, or
radiation agents.

(2) Eye and face protection equipment required by this Part shall meet the
requirements specified in American National Standards Institute, Z87.1-1968, Practice for
Occupational and Educational Eye and Face Protection.

There are many additional requirements for eye protection depending on the hazard to which the

worker will be exposed. There are also stipulations for workers who require corrective lenses.

Effectively Barricading for Safety

Seven of the 33 subcontract agreements required the subcontractor to maintain traffic

control for its own operation, in some cases specifically mentioning the use of flagmen,









barricades, and closure permits (item 54). Four agreements required the subcontractor to post

danger signs and warnings against hazards (item 55) and eight required the maintenance of

barricades and other safeguards (item 56) (Figure 4-31).

The inclusion of these provisions reinforced OSHA' s 29 CFR 1926 Subpart G- Signs,

Signals, and Barricades. The standards relating to traffic control in part 29 CFR 1926.200(g)(2)

states:

All traffic control signs or devices used for protection of construction workers shall
conform to Part VI of the Manual of Uniform Traffic Control Devices (AMUTCD"), 1988
Edition, Revision 3, September 3, 1993, FHWA-SA-94-027 or Part VI of the Manual on
Uniform Traffic Control Devices, Millennium Edition, December 2000, FHWA, which are
incorporated by reference.

29 CFR 1926.201(a) states:

Fla~weet \. Signaling by flaggers and the use of flaggers, including warning garments worn
by flaggers shall conform to Part VI of the Manual on Uniform Traffic Control Devices,
(1988 Edition, Revision 3 or the Millennium Edition), which are incorporated by reference
in @l926.200(g)(2).

and, 29 CFR 1926.202 states:

Barricades for protection of employees shall conform to Part VI of the Manual on Uniform
Traffic Control Devices (1988 Edition, Revision 3 or Millennium Edition), which are
incorporated by reference in gl926.200(g)(2).

The following provision is typical of the clauses found on traffic control:

(Subcontractor shall provide) nuisance control, and traffic control as necessary. This
includes required coordination with city government departments to comply with all traffic
and building codes. Provide flagmen as necessary.

Even though the provision did not specifically refer to the applicable OSHA standards, it is still

the duty of the subcontractor to be aware of and abide by the existing laws.

Another control measure required in the subcontract agreements was related to the use and

maintenance of barricades and the use of warning signs when and where appropriate. An










example of a provision that included both of these stipulations was as follows: "Properly

barricade all construction areas. Include warning signs as necessary."

Again, OSHA stipulates when and where the use of barricades and warning signs should

be used. Barricades can be used for a variety of safety reasons on construction sites. They can

be used for vehicular traffic control as mentioned above. They can also be used for pedestrian

traffic control to warn against areas with falling debris or to form perimeter barriers such as those

required for floor openings to prevent falls. Each particular safety use for barricades has

minimum distances required for their placement in the OSHA regulations. These regulations also

stipulate the color of signs, the size of the letters, and under what circumstances the different

signs should be used.

OSHA specifies that danger signs are to be predominately red and used only when there is

an immediate hazard. Caution signs are to be yellow and used when the potential for a hazard

exists. Exit signs, when required, are to be white with red letters that are at least six inches tall

and at least three-quarters of an inch thick. Directional signs (other than those for traffic) shall

have a white background.

Hoisting and Material Handling

Four of the 33 subcontract agreements contained provisions requiring the subcontractor to

meet or exceed safety requirements when hoisting (item 57). Four agreements also required the

subcontractor to safely and efficiently unload materials at the jobsite (item 58) (Figure 4-32). A

typical provision requiring safe performance during hoisting was:

Subcontractor shall provide all hoisting and scaffolding required to complete the Scope of
Work. Subcontractor shall comply with all applicable safety regulations, including the
requirements of the Occupational Safety and Health Administration.









The inclusion of this provision did not place requirements on the subcontractor that exceed those

required by law. OSHA has safety standards that delineate the exact safety precautions that must

be taken during hoisting activities such as:

1926.552

(a)(1)The employer shall comply with the manufacturer's specifications and limitations
applicable to the operation of all hoists and elevators. Where manufacturer's specifications
are not available, the limitations assigned to the equipment shall be based on the
determinations of a professional engineer competent in the Hield.

(a)(2)Rated load capacities, recommended operating speeds, and special hazard warnings
or instructions shall be posted on cars and platforms.

Also in this standard, OSHA details the maximum amount of damage that hoisting ropes are

allowed to have and still be used during hoisting operations. Another safety provision that

related to safety when hoisting was:

Subcontractor shall exercise due and proper care when loading, handling, and unloading
materials and/or equipment and shall meet or exceed all safety requirements, including
those of OSHA.

Again, OSHA has specific standards related to the safe handling of materials. Below are two

examples of specific safety requirements when using hoists to move or unload materials.

1926.552

(b)(1)(ii)No person shall be allowed to ride on material hoists except for the purposes of
inspection and maintenance.

1926.953 (a)Unloading. Prior to unloading steel, poles, cross arms and similar material, the
load shall be thoroughly examined to ascertain if the load has shifted, binders or stakes
have broken or the load is otherwise hazardous to employees.

Lighting

Seven of the 33 subcontract agreements required the subcontractor to provide its own task

lighting for the subcontractor's portion of the work (item 59) (Figure 4-33). Typically these

provisions were very basic in their requirements:

Subcontractor shall provide task lighting required for its work.









In some instances the general contractor or another subcontractor provided the power for small

tools and lighting, and the subcontractor was simply obligated for any distribution of that power

that was required. OSHA requires the proper amount of light to safely perform any task. The

general part of the standard states:

1926.56(a)

General. Construction areas, ramps, runways, corridors, offices, shops, and storage areas
shall be lighted to not less than the minimum illumination intensities listed in Table D-3
while any work is in progress: .

The table that is provided with the standard gives the amount of foot-candles that each type of

environment at a construction site must have. Depending on the task performed or the location,

the minimum illumination on construction sites must be 3 foot candles to 30 foot candles. When

the requirements are not met, additional light must be provided in order to perform the work.

Electric

Three of the 33 subcontract agreements contained provisions that stated the subcontractor

had to provide ground fault interrupters for its own equipment (item 60) (Figure 4-34). A typical

provision stated:

Each Trade Contractor shall be responsible for providing its employees with ground fault
interrupters for extension cords in accordance with OSHA requirements.

A Ground-fault circuit interrupter is defined by OSHA in Standard 29 CFR 1926.449 as, "a

device for the protection of personnel that functions to deenergize a circuit or portion thereof

within an established period of time when a current to ground exceeds some predetermined value

that is less than that required to operate the overcurrent protective device of the supply circuit."

Providing ground fault interrupters is already required by OSHA and does not exceed and legal

requirements. Below is the OSHA standard related to ground fault interrupters:

1926.404(b)(1)(ii)










Ground-fault circuit interrupters. All 120-volt, single-phase 15- and 20-ampere receptacle
outlets on construction sites, which are not a part of the permanent wiring of the building
or structure and which are in use by employees, shall have approved ground-fault circuit
interrupters for personnel protection. Receptacles on a two-wire, single-phase portable or
vehicle-mounted generator rated not more than 5kW, where the circuit conductors of the
generator are insulated from the generator frame and all other grounded surfaces, need not
be protected with ground-fault circuit interrupters.

Underground Utilities

Two of the 33 subcontract agreements contained provisions requiring the subcontractor to

ascertain the location of underground utilities and be responsible for any damage they may cause

(item 61) (Figure 4-3 5). One provision regarding the location of underground utilities is as

follows:

The subcontractor shall be responsible for the location of and/or damage cause by him to
any underground obj ects, including but not limited to sewer, water, gas, electric or
telephone lines, cables, pipes, and tunnel.

This type of provision was simply a way of assigning liability to the subcontractor. It is already

required by the Underground Facility Damage Prevention and Safety Act in Florida (the jobsite

location for the work covered by the subcontract agreements in this study) to have all

underground utilities marked before construction begins if work activities are likely to unearth

them. They also must remain marked for the duration of the project. Therefore this provision

did not stipulate any safety requirement that is not already required by law.

Fall Protection

Three of the 33 subcontract agreements specifically included provisions requiring the

subcontractor to comply with OSHA's fall protection standards (item 62) (Figure 4-36). A

typical provision stated:

Subcontractor will provide all fall protection including fall protection equipment as
required by OSHA, including but not limited to the latest interpretation of regional and
local OSHA offices.









This provision was very specific in mentioning the subcontractor's need to be aware of

interpretations for fall protection standards. OSHA contains a general provision for all

construction work tasks:

1926.501(a)(1)

This section sets forth requirements for employers to provide fall protection systems. All
fall protection required by this section shall conform to the criteria set forth in 1926.502 of
this subpart.

1926.501(a)(2)

The employer shall determine if the walking/working surfaces on which its employees are
to work have the strength and structural integrity to support employees safely. Employees
shall be allowed to work on those surfaces only when the surfaces have the requisite
strength and structural integrity.

In addition to general fall protection requirements, OSHA has standards pertaining to specific

tasks. Below is an example of a fall protection standard for steel workers:

1926.760(a)(1)

.. each employee engaged in a steel erection activity who is on a walking/working surface
with an unprotected side or edge more than 15 feet (4.6 m) above a lower level shall be
protected from fall hazards by guardrail systems, safety net systems, personal fall arrest
systems, positioning device systems or fall restraint systems.

Paragraph (a) (3) contains less stringent fall protection standards for connectors and employees

working in controlled decking zones. The subcontractor would need to be knowledgeable of any

fall protection standards that relate to any work they would be conducting on the j obsite.

Safety Kits

Four of the 33 subcontract agreements required the subcontractor to provide OSHA

compliant safety kits (item 63) (Figure 4-37). A typical provision stated:

OSHA approved safety kits must be provided completely stocked, accessible and visible to
employees.

First aid kits are not actually approved by OSHA as stated in the provision above. First aid kits

can be obtained that comply with the OSHA standards and the minimum requirements found in









ANSI Z3 08.1-1978. This type of provision does not exceed legal requirements. O SHA' s

standard on first aid supplies is as follows:

1926.50(d)(1)

First aid supplies shall be easily accessible when required.

1926.50(d)(2)

The contents of the first aid kit shall be placed in a weatherproof container with individual
sealed packages for each type of item, and shall be checked by the employer before being
sent out on each j ob and at least weekly on each j ob to ensure that the expended items are
replaced.

Appendix A to @ 1926.50 -- First aid Kits (Non-Mandatory)

First aid supplies are required to be easily accessible under paragraph Sec. 1926.50(d)(1).
An example of the minimal contents of a generic first aid kit is described in American
National Standard (ANSI) Z308.1-1978 "Minimum Requirements for Industrial Unit-Type
First-aid Kits". The contents of the kit listed in the ANSI standard should be adequate for
small work sites. When larger operations or multiple operations are being conducted at the
same location, employers should determine the need for additional first aid kits at the
worksite, additional types of first aid equipment and supplies and additional quantities and
types of supplies and equipment in the first aid kits.

Equipment Operation

Five of the 33 subcontractor agreements require the subcontractor to provide a competent

operator for equipment operation and to ensure it's in safe operating condition before utilizing it

(item 64) (Figure 4-3 8). A provision related to safe operation of equipment was:

Subcontractor shall make a thorough inspection to Subcontractor's satisfaction as to the
physical condition and capacity of the equipment as well as the competency of the
operator, there being no representations or warranties by Contractor with reference to such
matters.

This provision was specifically in reference to the subcontractor's use of the general contractor's

equipment. In all instances, OSHA already requires machinery to be operated by a worker who

is competent and has been trained in and is licensed to operate the equipment. OSHA also

requires all equipment to be inspected prior to each use and any deficiencies repaired before

operation of the equipment.









Distractions

Two of the 33 subcontract agreements stated that the subcontractor shall not allow the use

of radios or other sound-generating devices (item 65) (Figure 4-39). One such provision stated:

Sound reproducing devices and radios, other than those used for communications at the
site are prohibited.

OSHA has no specific standard on this subj ect; therefore the inclusion of this provision requires

safer practices than those required by law. Prohibiting the use of radios or sound-generating

devices ensures that workers can here the 'sounds of the j obsite.' In other words, they are able to

hear shouts of warnings, equipment and machinery that may be in their area and have an affect

on safety, or even the sounds from structural collapses. Also, the more distractions a worker is

subjected to, the more likely injuries will occur. Including provisions prohibiting distracting

devices on the jobsite should ensure safer work performance.

Fire Safety

Three of the 33 subcontract agreements contained provisions requiring the subcontractor to

provide fire extinguishers and/or fire protection (item 66) (Figure 4-40). One provision stated:

The trade contractor is responsible for providing all provisions associated with specific fre
protection requirements associated with the performance of his work.

While this particular provision did not specifically mention providing fire extinguishers, OSHA

has a standard requiring them for fire protection during construction operations. Furthermore,

contractors are also required to develop fire protection programs. These requirements are

outlined in the standards below:

1926.150(a)(1)

The employer shall be responsible for the development of a fire protection program to be
followed throughout all phases of the construction and demolition work, and he shall
provide for the firefighting equipment as specified in this subpart. As fire hazards occur,
there shall be no delay in providing the necessary equipment.










1926. 150O(c)(1)(i)

A fire extinguisher, rated not less than 2A, shall be provided for each 3,000 square feet of
the protected building area, or maj or fraction thereof. Travel distance from any point of the
protected area to the nearest fire extinguisher shall not exceed 100 feet.

Section 8 Miscellaneous Safety Provisions

The subcontract agreements that were evaluated for this study contained many

miscellaneous safety provisions that were not discussed in the previous sections. All of these

provisions were found to only occur in one subcontract agreement. The maj ority of these

provisions were task specific, though not necessarily specific to the subcontractor's work.

For example, one of the subcontract agreements included provisions dedicated to safety

related to:

* barricades, safety lines, and railings,
* scaffolds, access equipment, platforms and rails,
* cranes, hoists, and lifts,
* ventilation, and heating, and
* noise control.

The general contractor for this subcontract agreement was not in the Engineering New Records

Top 400 Contractors in 2006. While the exact size of this company is unknown, the majority of

its work has been performed in only a few cities in Florida and Georgia. Studies have found that

medium sized construction companies' employees are more prone to incur injuries than those of

small and large sized firms (Hinze 1997). This general contractor's extensive inclusion of safety

provisions is a step in the right direction for providing a safer work environment for its

subcontractors and employees.

An example of a provision relating to barricades, safety lines, and railings was:

Each trade contractor shall provide, erect, maintain, dismantle and remove any and all
barricades, scaffolding, railings, toeboards, ladders, flagging, covers and safety netting
required to complete his work, in accordance with OSHA and all other applicable code
requirements. At no time shall the Trade Contractor remove, alter or render ineffective,
any barricades, railings or cover on the proj ect without written permission of the









Construction Manager. Where these safety devices are to be turned over to others, upon
completion of the Work, the devices shall be repaired, or replaced so that they meet the
required standards prior to turnover.

This provision went beyond what is required by OSHA by requiring the subcontractor to obtain

permission from the general contractor to alter the equipment in any way. By doing this, the

general contractor was able to better maintain the effectiveness of on-site safety equipment. It

also kept the contractor (and thus other subcontractors) aware of when safety devices were

rendered ineffective during the course of the proj ect so that they could take the extra safety

precautions required in that area.

Another provision found in the subcontract agreement related to crane safety was:

The Trade Contractor is responsible for the safety of craning operations. He shall submit a
current Crane Inspection Certificate to the Construction Manager prior to starting hoisting
operations that ensures that the machine is in excellent operating condition together with a
written record of maj or repairs performed on the machine in the last three (3) years.

The Contractor will ensure the proper set up of the machine at every move including
checking the bearing capacity of the ground, leveling the crane to within 1% and
supporting it on adequate cribbing properly banded and bolted together with outriggers
fully extended.

The Contractor will ensure that the Crane Operator has at least three (3) years experience
operating the type and capacity of machine used on this Proj ect. The Crane Operator shall
have received adequate training in Crane Operation and Technology.

The Crane Operator shall be familiar with all applicable local, federal and industrial safety
standards posted load limitations and have the sole decision to refuse to handle a load if, in
his opinion, unsafe conditions exists. At the start of each working day, the Crane Operator
will perform a "sight, sound and operational" test on the machine for a minimum of fifteen
(15) minutes in accordance with an Operational Check List acceptable to the Construction
Manager. The completed Operator's Daily Check List shall be attached to the Contractor's
Daily Report and submitted to the Construction Manager.

This provision included many more safety measures than those discussed under the previous

section related to hoisting. The provision mandated a minimum of fifteen minutes that must be

dedicated to ensuring that the equipment is in proper operating order. It also required the









operator to perform a specific check and fill out the requisite form. Both of these requirements

go above and beyond what OSHA requires stating:

1926.550(a)(5)

The employer shall designate a competent person who shall inspect all machinery and
equipment prior to each use, and during use, to make sure it is in safe operating condition.
Any deficiencies shall be repaired, or defective parts replaced, before continued use.

1 926. 5 50(g)(3)(i)(D)

The crane shall be uniformly level within one percent of level grade and located on firm
footing. Cranes equipped with outriggers shall have them all fully deployed following
manufacturer's specifications, insofar as applicable, when hoisting employees.

This crane safety provision also required the leveling of the crane to within 1% which is already

required by OSHA. However the required minimum three year operating experience and the

submission of documents related to the crane's maintenance again goes beyond what OSHA

requires.

Another subcontract agreement also included additional miscellaneous safety provisions.

These were related to safety meetings, as well as personal protective equipment and the proper

and safe use of equipment. The provision related to safety meetings was:

(Contractor) shall conduct bimonthly safety and quality control meetings at the j ob site.
All employees working on the job site shall attend these meetings.

In this provision, the general contractor mandated that all employees attend, not just the

subcontractors j obsite representative. While increasing the frequency of the meetings would be

more beneficial for the improvement of jobsite safety performance, it is a proactive safety

method that shows the general contractors commitment to safety and ceasing all work activities.

The provision related to the proper use of personal protective equipment and ensuring the

proper working order of equipment was:

Additional Safety Clarifications: (a) Audible-warning devices must be installed on all
forklifts, scissor lifts, man lifts and articulated platforms used on this proj ect work site.









Audible devices must activate on any movement and upon descent of platform. (b) All
safety equipment, such as lights, horn, etc., must be operational at all times. Forklift or
moving equipment operators are required to wear seatbelts. (c) Full body harness with
lanyard is required for personnel within scissor lifts or articulated platforms. The tie-in
point is a dedicated attachment point or as directed by the manufacturer. (d) All
subcontractors shall wear safety vests during the site and structure portion of the job as
well as when heavy machinery is being used inside the building. Vests are to be provided
by each subcontractor.

Only part (d) of this safety provision required safer work practices than those mandated by the

OSHA standards. Requiring all employees to wear safety vests during the more dangerous

portions of construction ensures that they are more visible to machine operators and other

employees who may be conducting overhead work.

Another miscellaneous provision embedded within the Scope of Work section of a

subcontract agreement stated:

All scaffolding will be constructed in accordance with OSHA requirements. This
Subcontractor will hire a scaffolding company to furnish, install, maintain, and
disassemble the scaffolding required to perform his Work, or he may do so with his own
forces provided that those forces can demonstrate their qualifications to perform this work.
At a minimum all levels of scaffolding will be 100% fully cross-braced, fully planked with
handrails (top rail/ mid rail) and toe board. Scaffolding base will have 2" x 12" structural
grade rough sawn wood (or other approved material) with adjustable screw j acks for
leveling the scaffolding. Scaffolding will be braced back to structure or by extensions
through window openings with screw j acks tied into scaffolding. Prior to the start of this
work, a sample scaffold of 3 frames in height will be erected to comply with the standards
stated above for approval by (Contractor) as the standard use on this proj ect.

Again, all parts of this provision are required by OSHA in 29 CFR 1926 Subpart L, with the

exception of the last sentence requiring the construction of a sample scaffold. This is an extra

safety precaution that the general contractor would share part of the liability on since it takes on

the responsibility of approving the safety of the scaffolding.

As demonstrated by the examples of miscellaneous safety provisions above, the more

unique provisions will result in improved worker safety performance. Generally these provisions

are task specific, and either restate OSHA standards or require even safer work practices. It is










these provisions in conjunction with their enforcement that will have the most positive impact on

construction worker safety.

Section 9 Historical Comparison

To examine the existence of a possible trend regarding the inclusion of safety provisions in

subcontract agreements, sixteen subcontracts utilized during the period from 1988 to 1990 were

also evaluated. It was recognized that the number of subcontracts that were evaluated provided

insufficient information to provide conclusive trend information, but that reasonable inferences

could be drawn.

The study of the historical subcontract agreements revealed that the indemnity clauses and

the housekeeping provisions occurred most often. One of the historical agreements also

delineated the responsibility for providing temporary utilities and water. Six of the subcontract

agreements required the subcontractor to comply with the prime contract and three required

lower-tiered subs to comply with the provisions of the subcontract document. However in these

instances, this was mentioned only as a general clause and not in direct relation to safety.

The most frequently occurring safety provision in the older subcontract agreements was

one which required the subcontractor to comply with existing safety laws and regulations. Seven

out of the 16 agreements contained this provision, while three others specifically cited OSHA as

a safety standard to comply with and two required compliance with the general contractor's

safety policy. Four of the 16 agreements also stated that the subcontractor was responsible for

safety. In two of these instances, this was only mentioned in regard to providing a "safe and

convenient environment for testing."

Below is a list of safety provisions that were found to occur in only one of the subcontract

documents :

*Subcontractor must comply with MSDS requirements.










* Subcontractor shall notify contractor of injuries within three days.

* Subcontractor must abide by hazardous communication program.

* Subcontractor must give written notice of hazardous substances it will bring on site.

* Subcontractor must submit their company's safety program.

* Subcontractor must comply with reasonable safety recommendations of insurance
companies.

* Subcontractor will stop work if Contractor deems it unsafe.

* Subcontractor must conduct weekly safety/toolbox meetings.

* Subcontractor must supply copy of safety meeting minutes to Contractor.

* Contractor's failure to enforce a provision is not waiver of that provision.

Two miscellaneous safety provisions were found in the historical subcontract agreements. They

were both contained in the same agreement and were as follows:

The Contractor shall not load or permit any part of the structure to be loaded with a weight
that will endanger its safety.

In any emergency affecting the safety of persons or property, the Contractor shall act, at
his discretion, to prevent threatened damage, injury, or loss. Any additional compensation
or extension of time claimed by the Contractor on account of emergency work shall be
determined as provided in Paragraph 14 for Changes in the Work.

Neither of these provisions is particularly progressive nor do they mandate safer standards than

those required by law.

As shown in Table 4-1 the average number of provisions found in current day subcontract

agreements was approximately 15.5. The minimum number of provisions found in any

subcontract document from 2004-2006 was two and the maximum was 31. The average number

of provisions found in the subcontract agreements dating 1988-1990 was approximately 3.8. The

minimum number of provisions found was zero and the maximum was 12. As demonstrated in

this brief analysis the inclusion of safety provisions has greatly increased over the past fifteen to




































includes the provision did not include the
provision

Protection of work clause


Who provides potable water for the
jobsite?


24


sixteen years. No irrefutable conclusion can be made that the inclusion of safety provisions has

helped create safer work environments in construction. However, the inclusion of safety

provisions can certainly aid in ensuring safer j ob sites by reiterating existing laws and also by

mandating safer work practices.



Protection of work clause includes
protection of "workers."


Figure 4-1


Subcontractor General Did not specify
Contractor


Responsibility for providing potable water


Figure 4-2




















7n


y

















y


Subcontractor General Did not specific
Contractor

Figure 4-3 Responsibility for providing toilet facilities


Who prov ides e le ctricity for the jobsite ?

30
26
S25
8 20
S15
10
E 3 4
5

Subcontractor General Did not specific
Contractor

Figure 4-4 Responsibility for providing electricity


Who provides toilet facilities for the
jobsite?













Who provides dumpstersitrash re moval for
the jobsite?

30
26
25

20

15

10
6
51
0


Subcontractor


General
Contractor


Did not specify


Figure 4-5 Responsibility for providing dumpsters/trash removal



Types of indemnity clauses found in the subcontract
agree me nts.


General Indemnity
and Mutual
Indemnity
Clauses, 2, 6%


No Indemnity
Clause, 5, 15%


General Indemnity
and Indemnity for
Safety Violation
Clauses, 15, 46%


General Indemnity,
11, 33%


Figure 4-6 Indemnity clauses




















4

3

2


the entire subcontract
agreement


the safety clauses within the
subcontract agreement


Figure 4-7 Sub-subcontractor and supplier compliance with subcontract agreement


General contractor requires the subcontractor to
comply with:


20 -

15-

10-

5-


1


1


the entire prime
contract


the safety clauses
within the prime
contract


both the entire
prime contract and
specifically the
safety clauses of
the prime contract


Figure 4-8 Inclusion of prime contract as part of subcontract


Subcontractor shall require all of its subcontractors
and supplies rs to comply with:




















-F-r5


Subcontractor Responsibility for Safety


Subcontractor is
responsible for
health and safety at
all times


Subcontractor shall
not permit workers
to work in unsafe
conditions/will
provide safe and
sufficient facilities at
all times.


Subcontract
contained both of
these provisions


Figure 4-9 Subcontractor responsibility for safety



Responsibility for Worker Safety


Subcontractor
is responsible
for health and
safety at all
times and must
stop work if
general
contractor
deems it to be
unsafe., 3, 10%




Subcontract
contains neither
provision., 16,
52%


Subcontractor
must stop work
if general
contractor
deems it
unsafe., 1, 3%


Subcontractor
is responsible
for health and
safety at all
times., 11, 35%


Figure 4-10 Responsibility for worker safety













Subcontract
contains both a
general
housekeeping
provision and a
clean-up
provision in the
safety clause., 6,
1 8%



SSubcontractcotisn

housekeeping
provisions., 1,
3%


Subcontractor
must maintain


S ubco ntra cto r
will rem ove all /
tras h and debris
(daily). No
mention of
safety., 24, 73%


Figure 4-11 Cleanliness and safety


Subcontractor
shall designate
a 'com petent'
:Iperson as
defined by
OSHA, 4, 12%


Subcontract
does notspecify
that the
subcontractor
m ust designate
res ponsi ble
party for s afety.,
22, 67%


Subcontractor
shall designate
an employee
whose duty is
accident
prevention., 7,
21%


Figure 4-12 Designating a safety supervisor


Cleanliness and Safety


Designating a Safety Supervisor


















































6
21


Subcontractor shall immediately notify contractor of
hazardous or unsafe conditions.


included the provision did not include the provision



Figure 4-13 Notifying contractor of unsafe work conditions


Injury Notification


Subcontractor
shall notify
general
contractor of
injuries
immediately.


Subcontractor
shall notify
general
contractor of
injuries within 24
hours.


Subcontractor
shall notify
general
contractor of
injuries within 3
days.


Subcontractor
not required to
report injuries to
the general
contractor


Figure 4-14a Notifying general contractor of injuries

















































9 9



3


Injury Notification and
Accident Reports






Subcontractor
not required to
report injuries to
the general
contractor, 24,
73%


Subcontractor
must report
injuries to the
general
contractor, 9,
27%


Subcontractor
not required to
submit a
completed
accident report.,
3, 9%


Subcontractor
must submit a
completed
accident report to
the general
contractor, 6,
18%


Figure 4-14b Correlation of injury notification and accident reports


Compliance with Applicable laws


Subcontractor
must comply
with applicable
safety laws,
ordinances, rules
and regulations.


Subcontractor
must comply
with all
applicable laws,
ordinances, rules
and regulations.


Subcontract
contains both
provisions


Subcontract
contains neither
provision.


Figure 4-15 Compliance with applicable laws














































7
2
II


Compliance with Safety Laws and Recommendations


20


Subcontractor must
comply with OSHA
Regulations.


Subcontractor must
comply with reasonable
safety
recommendations of
insurance companies.


Subcontracts
Containing Both
Provisions


Figure 4-16 Compliance with safety laws and recommendations


General Contractors Right to Restrict Job Site Access


Contractor can prohibit
people from the site for
safety violations, and/or
drug or alcohol use,
and/or fighting, or
possession of
weapons.


If the Subcontractor
fails to abide by or
enforce safety policies
then Contractor can bar
such party from the job
site.


No provision for the
general contractors
right to restrict job site
access.


Figure 4-17 General contractors right to restrict job site access















26








3 3
1


Non-Enforcement is Not a Waiver of Provisions


Contractor not
enforcing a
safety provision
is not a waiver of
the provision.


Contractor not
enforcing a
provision is not
waiver of the
provision.


Subcontract
contained both a
a general and a
safety non-waiver
provision.


No non-waiver
provisions
contained in the
subcontract.


Figure 4-18 Non-enforcement is not a waiver of provisions



Contractor may provide safety personnel and services
and backcharge the subcontractor if subcontractor is
unwilling or unable to maintain a safe work site (or
withhold payments until the subcontractor complies.)


26


included the provision


did not include the provision


Figure 4-19 General contractors right to correct safety deficiencies

























3
2


Figure 4-20 General contractor's right to instruct subcontractor employees



Subcontractor Safety Programs

9
8 8
C

S6-


4-
0 3

E 2
3 1 1
z1-


General Contractor's Right to Instruct
Subcontractor Employees


Contractor shall never
give instructions to
Subcontractor's
employees except in
emergencies.


Contractor shall never
instruct
Subcontractor's
employees .


Subcontract contains
neither provision.


Subcontractor must Subcontractor shall
submit a project supply any
specific safety requested safety
program. information


Subcontractor must Subcontractor must
submit their submit their


company's safety
program.


company's safety
program and any
other requested
s afety i nform ati on


Figure 4-21 Subcontractor safety programs

















14


10
8




1


3


- -2 2

1


General Contractor Safety Programs


Su contractor m ust Subcontract
com ply with includes additional
Contractors safety addenda or exhibits
policy. concerning safety.


Subcontractor m ust
com ply with
contractors safety
policy and the
ag ree m ent i ncl udes
additional safety
addenda.


Subcontract
contains neither
provision.


Figure 4-22 General contractor safety programs



Drug and Allcohol Policies


4


03


o



Z


Subcontractor must
complywith
Contractors drug
and alcohol abuse
policy.


Subcontractor will
implement and
enforce a substance
abuse control
program.


None of the
subcontractors
employees shall
possess, consume,
or be under the
influence of drugs or
alcohol, either
legally taken or not.


Subcontractor will
implement and
enforce a substance
abuse control
program and ensure
that their employees
do not possess,
consume or be
under the influence
of drugslalcohol.


Figure 4-23 Drug and alcohol policies


































Figure 4-24 Drug free workplace statutes


Hazardous Communication Program

30 27

S25

O 20
m15
10

E 5

0


Subcontractor must comply with Drug Free Workplace
Statutes (may include 440.101, 440.102)


included the provision


did not include the provision


Subcontractor must
abide by Contractors
hazardous
communication
program.


Subcontractor must
provide its own
hazardous
communication
program


Subcontract did not
require the
subcontractor to abide
by any hazardous
communication
program.


Figure 4-25 Hazardous communication programs











Subcontractor
must not dispose
of hazardous
waste in
undesignated
containers or
dumpsters and
must comply with
disposal laws, 2,
6%



Subcontract
contains both
hazardous
disposal and
MSDS provisions,
3, 9%


Subcontract
contains no
provisions relating
to hazardous
substance laws.,
12, 37%


Subcontractor will
stop work and
inform contractor if
-asbestos or PCB
or other hazardous
/materials are
/present., 3, 9%

SSubcontract
Contains both
Asbestos and
MSDS provisions,
2, 6%
Subcontractor
must comply with
MSDS
requirements on
toxic materials ,
11, 33%


Hazardous Substance Laws


Figure 4-26 Hazardous substance laws


Subcontract
contains no
provisions for the
restriction of
hazardous
substances., 25,
76%




Subcontractor
must give written
notice of
hazardous
substances it will
bring on site., 3,
9%


Hazardous Substances on the Job Site


Hazardous
materials are -
prohibited., 1, 3%


Hazardous
materials are
prohibited without
approval of
architect or
owner., 4, 12%


Figure 4-27 Hazardous substances on the jobsite






















7 3


3 5 5


Safety Meetings and Training Conducted by the Subcontractor


Subcontractor must
conduct weekly
safety/toolbox meetings
and supply copy of
safety meeting minutes
to Contractor.


Subcontractor must
conduct weekly
safety/toolbox meetings,
supply copy of safety
meeting minutes to
Contractor, and conduct
new hire safety training.


Subcontract contains no
provisions requiring the
Subcontractor to provide
safety training or
conduct safety meetings


Figure 4-28 Safety meetings and training conducted by the subcontractor


Safety Meetings


Subcontractor
must attend
Contractor's safety
meetings .


Subcontractor
must conduct its
own weekly safety
meeting and
provide minutes to
the contractor.


Subcontractor
must attend
Contractor's safety
meetings and
conduct their own.


Subcontract
contains no
provisions requiring
the subcontractor
to attend
contractor safety
meetings or to
conduct their own.


Figure 4-29 Safety meetings
























6


Personal Protective Equipment Provisions


Subcontracts
containing 2 PPE
provisions


Subcontracts
containing no PPE
provisions


Subcontracts
containing 1 PPE
provision


Subcontracts
containing 3 PPE
provisions


PPE Provisions:
1. Subcontractor must supply or subcontractor's employees must have all required
PPE and dress appropriately
2. Hard hats are mandatory.
3. Hard sole/steel toe shoes are required.
4. Safety glasses are mandatory.

Figure 4-30 Personal protective equipment provisions

























I I I I 1 I I ;1 ~1 '


25






4 4


10


Subcontracts
that did not
contain
barricading
provisions


Subcontracts
that
contained
barricading
provision #1


Subcontracts
that
contained
barricading
provision #2


Subcontracts
that
contained
barricading
provision #3


Subcontracts
that
contained
barricading
provision #1
and #3


Subcontracts
that
contained
barricading
provision #2
and #3


Su bco ntracts
that
contained all
three
barricading
provisions


Provisions:
1. Subcontractor must maintain traffic control for its own agents and operations:
includes flagmen, barricades, and closure permits.
2. Subcontractor must post danger signs and other warnings against hazards.
3. Subcontractor shall provide and/or maintain all perimeter barricades or
safeguards required for safety and/or keep them in place.



Figure 4-31 Effectively barricading for safety


When hoisting,
Subcontractor must
meet or exceed
safety requirements
including those of
OSHA.


Subcontractor will
safely and efficiently
unload materials.


Subcontracts that
contained no
provisions on hoisting
or material handling


Figure 4-32 Hoisting and material handling


Effectively Barricading for Safety


Hoisting and Material Handling



































Subcontractor must provide their own ground fault
i nte rru pte rs for e le ctri cal e qu ipme nt.

30










3


Subcontractor will provide their own task lighting.

26


included the provision did not include the provision


Figure 4-33 Task lighting


included the provision


did not include the provision


Figure 4-34 Providing ground fault interrupters

















































3


Subcontractor is responsible for the location of
underground objectsiexisting facilities, including
electric lines.


31


I I
included the provision


did not include the provision


Figure 4-35 Locating underground objects/facilities


Subcontractor will provide all fall protection required
by OSHA.


included the provision


did not include the provision


Figure 4-36 Fall protection























4


When using equipment (contractor's, rented, or own),
subcontractor shall ensure it is in safe condition,
takes all responsibilities for safety, and shall provide
a competent operator.


OSHAapproved safety kits must be provided.


included the provision

Figure 4-37 OSHA safety kits


did not include the provision


included the provision


did not include the provision


Figure 4-38 Equipment safety
















31







2

I I


3


No radios or sound-generating devices not used for
jobsite communication are alloweRd.


included the provision


did not include the provision


Figure 4-39 No radios/sound-generating devices


Subcontractor shall provide fire
exti nguishe rs/prote action


included the provision


did not include the provision


Figure 4-40 Provide fire extingui shers/protection












Table 4-1. Descriptive statistical data for the inclusion of safety provisions in subcontract documents
2004-2006 Subcontracts 1988-1990 Subcontracts


Mean
Standa rd error
Median
Mode
Standa rd deviation
Sa mple variance
Kurtosis
Skevvness
Range
Minimum
Maximum
Sum
Count


15.48484848
1.356187568
16
17
7.790704446
60.69507576
-0.840496169
0.031739609
29


3.75
0.819044158
2.5

3.276176633
10.73333333
1.954683949
1.514523227
12

12
60
16









CHAPTER 5
CONCLUSION

The inclusion of safety provisions within subcontract agreements could help lead to safer

work practices on construction sites. While restating existing laws and regulations will only

stress or emphasize safety practices that are already mandatory; stressing compliance with

existing safety laws demonstrates a general contractor's commitment to jobsite safety. The level

of management commitment to safety is very influential for overall jobsite safety and

specifically for subcontractor safety. It is very important that the general contractor place the

same emphasis on safety as say, cost and schedule, because this could lead to safer worker

performance .

Nonetheless, due to the lag the construction industry still experiences with regard to

worker safety when compared to other industries, more proactive measures need to be taken to

aid in jobsite safety. As shown in the historical comparison section, it is becoming a more

common practice for general contractors to include safety provisions in their subcontract

agreements. Fifteen years ago, it was hardly widespread for subcontract agreements to contain

safety provisions requiring compliance with existing safety laws. Now, not only do most

subcontract agreements contain such provisions, but some also include proj ect or task specific

safety measures. Continuing to include provisions that require safety measures that go above

and beyond what is required by OSHA or other regulatory agencies is one way to help improve

the construction industry's safety record. Requiring safer work practices than those necessitated

by law is probably the most effective demonstration of a general contractor's commitment to

safety (always assuming that they are regularly and strictly enforced).

Another way that general contractors have included safety in their subcontract agreements

is through the inclusion of additional safety addenda. This included safety policies, drug and










alcohol abuse policies, and material safety data sheet and hazardous communication policies.

Some also included proj ect specific safety manuals or safety measurements specifically related to

the subcontractor's tasks. These addenda would have the same legal effect as those safety

provisions included in the general conditions section of the subcontract agreement; however,

they probably do not stress the importance of safety as much as the safety provisions that are

embedded within the general requirements of the subcontract agreement or in the subcontractor's

scope of work. While the safety policies/programs may be more encompassing in their

prescriptive safety measurements, they give the impression that safety is an afterthought and not

important enough to include in the main body of the contract.

Embedding the safety measures in the subcontract agreements, the general contractor

effectively changes the subcontract agreement from a focus only on price and time, to one that

also focuses on worker safety. The general contractor's role in subcontractor safety is more

significant than that of the subcontractor. As such, the general contractor could make a real

contribution to worksite safety by mandating and enforcing safety policies that require safer

work practices than those of OSHA or other safety regulatory agencies.









CHAPTER 6
RECOMMENDATIONS

Recommendations to the Industry

General contractors have an enormous ability to positively affect job site safety. As such,

general contractors should be more diligent in including safety provisions in their subcontract

agreements and focus on enforcing them. Contractors should not shy away from addressing

safety in their subcontracts from fear of assuming liability. The assumption that liability will be

shifted towards them should not be a deterrent because it is generally accepted among experts

that the more proactive you are, the less likely injuries are to occur, and therefore the less

possibility there is for liability claims.

Recommendations to Researchers

This study was limited to using the generalized improvement of the construction industry's

safety record as a comparison for the effectiveness of safety provisions found in subcontract

agreements, as well as factors that are known to have an effect on worker safety. Further studies

evaluating the inclusion of safety provisions in subcontract agreements in comparison with other

safety related data are needed. More conclusive statements with regard to the effectiveness of

safety provisions could then be made. However, due to the nature of the construction industry

and its variable environment such conclusions would still only be generalizations, albeit more

accurate ones.

A study that would give more insight into the effectiveness of the safety provisions is

needed. This would require not only obtaining subcontract agreements, but also the safety

records of the projects on which they were in effect. Also, the general contractor's and

subcontractor's overall safety record could be used for comparison.









It has been shown that factors affecting safety vary depending on the size of the proj ect as

well as the size of the company. Therefore evaluating subcontract provisions in agreements as

well as jobsite safety performance would only be the start of a new study. Classifying the safety

provisions into positive effect factor categories as related to j ob and company size could show

why some proj ects have more success in safety than others. Comparison of the size of the

proj ect and company and the most effective provisions would probably provide the most insight

into worker safety performance. Publishing the enumeration of the most effective safety

provisions and measures that general contractors have used could benefit worker safety in the

construction industry.

Another comparative study that could be conducted is one in which a survey is used to

ascertain the effectiveness and means with which the general contractor enforces the safety

provisions. An analysis of only the written safety documents will only give half the story. The

general contractor's commitment and enforcement of its own policies must also be evaluated.









APPENDIX A
CODING FORM FOR SUBCONTRACT AGREEMENTS

The subcontract agreements for this study are coded as:
Yes, this provision is included, or
No, this provision is not included.
NOTE: The subcontracts were not evaluated for the inclusion of the provisions as exactly
stated below, but for the inclusion of the underlying safety principle.

Section 1- General Provisions

1. Protection of work clause includes protection of "workers."
2. Contractor provides potable water.
3. Subcontractor provides potable water.

4. Contractor provides toilets.
5. Subcontractor provides toilets.
6. Contractor provides electricity.
7. Subcontractor provides electricity.
8. Contractor provides trash removal/dumpsters.
9. Subcontractor provides trash removal/dumpsters.


Section 2- General Safety Provisions

10. a) Subcontractor will bear costs and hold harmless the Contractor for any violations.

b) Subcontractor will bear costs and hold harmless the Contractor for any safety violations.
c) Subcontractor and Contractor mutually indemnify one another for violations for which
the other is not responsible.
11. Subcontractor will require all of its subcontractors and suppliers to comply with:

a) the entire subcontract agreement.

b) with the safety clauses in the subcontract agreement.
12. Subcontractor must comply with:

a) the contract between the general contractor and the owner.
b) the safety requirements of the contract between the general contractor and the owner.
13. Subcontractor is responsible for health and safety at all times.










14. Subcontractor shall not permit workers to work in unsafe conditions/will provide safe and
sufficient facilities at all times.

15. Subcontractor will stop work if Contractor deems it unsafe.
16. Subcontractor will remove all trash and debris (daily). *No specific mention of safety.
17. Subcontractor must maintain work site in safe and clean condition.

18. a) Subcontractor shall designate a 'competent' person as defined by OSHA.

b) Subcontractor shall designate an employee whose duty is accident prevention.
19. Subcontractor shall immediately notify contractor of hazardous or unsafe conditions.
20. Subcontractor shall notify contractor of injuries:

a) immediately.
b) within 24 hours.
c) within 3 days.
21. In the event of an accident, Subcontractor must submit a completed accident report to the
contractor (for insurance purposes or otherwise).


Section 3- Compliance

22. a) Subcontractor must comply with applicable safety laws, ordinances, rules and regulations.

b) Subcontractor must comply with all applicable laws, ordinances, rules and regulations.
23. Subcontractor must comply with OSHA Regulations.
24. Subcontractor must comply with reasonable safety recommendations of insurance

companies.


Section 4- General Contractor's Rights

25. Contractor can prohibit people from the site for safety violations, and/or drug or alcohol use,
and/or Eighting, or possession of weapons.
26. If the Subcontractor fails to abide by or enforce safety policies then Contractor can bar such

party from the j ob site.
27. a) Contractor not enforcing a safety provision is not a waiver of the provision.

b) Contractor not enforcing a provision is not a waiver of the provision.