CSM :- Are You Liable for Injuries to an Independent Contractor's Employee

www.safetygoodwe.com

Chapter: - Contractor Safety Management

Are You Liable for Injuries to an Independent Contractor's Employee

Topic: Injuries and Illness - Awarness Document

The supervisor of an independent contractor called his crew in for a quick rundown of their job responsibilities for an upcoming assignment. "Okay, guys, we have a job lasting several months repairing two cooling towers at the gas company. We're all going to attend a safety meeting over there where the gas company is going to show us a video and hand out a safety manual. I want everyone to pay attention and do a good job."

The supervisor at the gas company ran an informative safety meeting. After the meeting, the independent contractor's supervisor assigned two employees to work in a small dome used to store an ammonium sulfate by-product. They were instructed to perform welding work inside and to construct a doorway to prevent ammonium sulfate from leaving the dome.
The gas company supervisor informed the independent contractor's supervisor about a potential ammonium sulfate hazard in the dome.
For the first 20 minutes, everything seemed to be proceeding smoothly. Then suddenly on of the employee's eyes started burning, and he had difficulty breathing. He and his co-worker quickly left the dome and searched for their supervisor.
"We can't work in there. We can barely breathe," the workers told him
"Just finish the work quickly and come out," the independent contractor's supervisor told his employees.

The workers followed his orders and went back into the dome, but soon one of them collapsed from the fumes and was rushed to a hospital where he was diagnosed with reactive airway dysfunction syndrome.

Worker Sues

While collecting workers' compensation for his injuries, the independent contractor's employee consulted an attorney who advised him to sue the gas company for failing to provide for his safety.
In court, his attorney stated that although his client did not work for the gas company directly, the gas company was responsible for his safety because it controlled the work area.
The safety manual and video were presented as evidence that the gas company was in control of the well-being of the independent contractor's employees. And the injured worker's lawyer told the court that the gas company was negligent in failing to protect the worker.

The Court's Ruling

The gas company was not responsible for the worker's injuries, ruled the North Dakota Supreme Court. The contract clearly gave the independent contractor complete control over the injured employee's work. Also, it was clear that the independent contractor's supervisor directed the details of his employees' work, not the supervisor of the gas company. This meant that the independent contractor was completely responsible for making sure its employees were protected from the hazardous fumes of ammonium sulfate.

What This Means

Generally, a company that hires an independent contractor is not liable for the contractor's negligence. One exception is when the company retains control over the contractor's work. Such control would include directing the manner in which the job was done and retaining the right to supervise in detail so that the contractor is not entirely free to do the work in his own way. Usually this control is spelled out in the contract.
If you do hire independent contractors, however, you should provide them with all relevant safety information about your place of work and warn them of any hidden hazards. Also, be aware that certain OSHA standards, such as hazard communication and process safety, require you to provide this information to your contractors.
In the case described here, the independent contractor was told about the presence of ammonium sulfate in the dome. With this knowledge, it was up to them to carry out the work safely. Had the employer failed to provide hazard information to the independent contractor, however, the result might well have been different.

CSM :- How to Determine Independent Contractor Status

www.safetygoodwe.com

Chapter : Contractor Safety Management 

How to Determine Independent Contractor Status

Topic: Safety Management

When a company hires independent contractors to perform jobs in your workplace, the status of these workers could make a big difference in terms of your liability should one of them be injured. Are these workers truly independent contractors or are they in effect your employees?

The following factors assistance in determining independent contractor status. It is, however, always wise to check with your company's attorneys concerning contacts and worker status whenever your company hires independent contractors.

1. Is the individual under the direction or control of the independent contractor, not your employer, while working in your workplace?
2. Does the contractor have the right to control the means and progress of the work except as to final results?
3. Is the contractor engaged in an independently established trade, occupation, profession or business?
4. Does the contractor have the opportunity for profit and loss as a result of the services being performed for your company?
5. Does the contractor hire and pay his or her assistants (if any) and to the extent that these assistants are employees, supervise the details of their work?
6. Does the contractor make services available to other customers even if its right to do so is voluntarily not exercised or is temporarily restricted?
7. Do any 3 of the following elements apply?
   1. The individual has a substantive investment in the facilities, tools, instruments, materials, and knowledge used by the individual to complete the work.
   2. The individual is not required to work exclusively for your company.
   3. The individual is responsible for satisfactory completion of the work and may be held contractually responsible for failure to complete the work.
   4. You have a contract that defines the relationship and gives contractual rights in the event the contract is terminated by the you prior to completion of the work.
   5. Payment to the individual is based on factors directly related to the work performed and not solely on the amount of time expended by the individual.
   6. Such work is outside the usual course of the business for which the services is performed.
   7. The individual has an independent contractor status.
   
   If the answer to all or most of the 7 questions above is yes, the individual or entity you are dealing with is likely an independent contractor, not an employee. And this fact can play an important role in limiting your company's liability for injuries to an independent contractor's employees.
   

   Minimize Risks When Hiring Independent Contractors

   The implementation of the Act and emerging economic sectors may lead businesses to make greater use of independent contractors and blur traditional definition of "employment." The Department of Labor and many states are responding with legislation to crack down on business and impose a greater share of the liability for the acts or omissions of their independent contractors.
   With more organizations hiring independent contractors to deal with economic, staffing, and business challenges—with typical duties including janitorial duties, building construction and renovation, different production activities, security, and maintenance—it's important to understand the risk of liability your organization could face if those workers aren't properly trained on safety protocols.
   Sure, in theory independent contractors are responsible for their activities, including safety, and their liability is not transferred to the company that has hired them. However, in the real world it's not always so black and white. In fact, there are many situations where your organization could be liable.

Important Points:-

• Conditions that could result in safety-related liability when you hire an independent contractor to perform services for your organization
• Circumstances that could lead to claims of contributory negligence, negligent en-trustment, and more against your organization
• Examples of "non-delegable duties" and "inherently dangerous activities"
• How to determine if someone is an independent contractor or an employee, and strategies to make sure the relationship is clear
• What OSHA requires when you hire independent contractors
• Tips on how to select safe and dependable independent contractors
• What types of safety expectations to include in your independent contractor agreements
• Factors to consider when your independent contractor hires sub-contractors
• How can you limit the "mixing" of your employees and independent contractor staff on the job site to avoid potential risks
• The three types of documentation you should require before you let an independent contractor perform their services for your organization
• Why it's important to assure that the independent contractor has a process in place for providing first aid and medical care to its workers

 

CSM :- Requirements : SHE : P4 : Schedule of Fines

www.safetygoodwe.com

Chapter: - Contractor Safety Management

SAFETY, HEALTH & ENVIRONMENTAL REQUIREMENTS

Part - 4 - Sub Contractor : Schedule of Fines

• The Employer reserves the right to fine any Contractor who fails to comply with any of the requirements set out in this Schedule and non implementation of  EH&S minimum requirements.
• Statutory requirements are to be treated as a minimum only and the Employer may impose higher standards.
• Schedule of Charges to Contractor who are in breach of the Employer’s Site Safety, Site Safety Cycle and Environmental Rules and Regulations

 Schedule of Fines (Recommended ONLY) : Fine amount can be plan as per organization  requirements

No.	Nature of Offence	Amount of Safety or Environmental Charge to be levied against the Sub Contractor for each breach of the Employer’s Rules & Regulations (Indian Rs)
1.	Smoking in an unauthorised area and/or consumption of alcohol and/or use of illegal substances.	Rs XXX.00
2.	Burning of waste or smouldering of combustible materials on site other than for heat treatment processes required for the execution of the Sub Contract works.	Rs XXXX.00
3.	Failure to wear personal protective equipment (P.P.E.) eg. Safety helmets, safety boots, goggles etc. respirator, ear plugs, safety belts which shall include failure to anchor belt to a secure structure. Where any site operation requires the use of PPE then all workmen must use the required PPE eg. grinding, welding, burning, unloading hazardous materials etc.	1)    Rs.XXX.00 per worker when lack of enforcement of the usage of P.P.E. by the Sub Contractor is observed by the Employer. OR 2)  Rs.XXXX.00 where issuance of the required P.P.E. by the Sub Contractor equipment is not carried out.
4.	Failure to attend general safety induction course conducted by the Employer / the Employer.	1)       Rs.XXX.00 per worker for not attending the course; and Workers to attend course within 2 working days or be dismissed.
5.	Failure to attend a notified site safety meeting.	Rs XXXX.00
6.	Failure to submit, within the specified time to the Employer, safety supervisor reports which shall include other relevant statutory reports made under the F&IUO Cap. 59, tool box briefing records, weekly labour return, issuance of personal protective equipment records, safety data sheets of toxic and harmful materials and others related certificates.	Rs XXXX.00
7.	Failure to submit a written report for an accident and/or other dangerous occurrence, to the Employer within 24 hours of its occurrence.	Rs XXXX.00
8.	Failure to carry out within the specified time the necessary improvement action against any notified safety violation.	Rs XXXX.00
9.	Damaged to or misuse of the Employer’s property.	1)       Rs.XXXX.00; and in addition the Sub Contractor to pay for the cost of items damaged.
10.	Failure to maintain work area, facility storage and preparation yard, office premises and workers changing and rest area in a clean and orderly state and free from health and fire hazards.	1)       Rs XXXX.00;  and n addition the Sub Contractor shall clean up the disorderly and untidy areas within 3 days.
11.	Obstruction of passageways, entrances, door ways, stairs, access to fire fighting equipment etc. and/or the erection unsafe accesses and crossings.	Rs XXXX.00
12.	Use of equipment that has not been examined by an approved person as required under the Factories and Industries Undertaking Ordinance and its related regulations.	Rs XXXX.00
13.	Using defective or uncertified slings for lifting operations.	Rs XXXX.00
14.	Executing unsafe hoisting of materials and include unsafe use of lifting appliances.	Rs XXXX.00
15.	Erecting and/or using unsafe or unstable, scaffolds, working platforms and temporary structures.	Rs XXXX.00
16.	Failure to provide and use proper working platforms and safe means of access to the work place, where work is required to be carried beyond a person’s normal reach.	1) Rs.XXXX.00; and 2) the worker to be immediately banned from the site if an individual receives X violations.
17.	Allowing workers to occupy or work on unguarded elevated platforms, floor edges and without adopting adequate safety measures against the risk of a person falling from height.	Rs XXXX.00
18.	Not providing safety barricades/barriers to hazardous floor edge openings, gaps and shafts.	Rs XXXX.00
19.	Rendering scaffold or working platform unsafe by tampering/alternation.	1) Rs XXXX.00 and all rectification costs to be borne by the subcontractor.
20.	Placing of heavy items unsafely on scaffold or working platform.	Rs 2,000.00
21.	Throwing or allowing objects to drop from heights.	1) Rs XXXX.00 and Workers to be immediately banned from the site.
22.	Stacking or leaving materials including work in progress articles and tools in unstable condition and or along floor edges such they are likely to endanger workers.	Rs XXXX.00
23.	Failure to effectively cordon off guard and warn other workers from entering into the danger areas when they are likely to be affected by falling materials from the Sub Contract Work.	Rs XXXX.00
24.	Violating the permit to work system for example, but not limited to:- a)     Look out procedures                 ) Failure b)     Confined space entry permits    ) to c)      Other hazardous work               ) comply          eg. hot work                              )	1)    Rs XXXX.00; and   2)    Workers to be immediately banned from the site.
25.	Dismantling and rendering any safety guards or protective features of any part of a machine or any part of a building structure to the extend that such guards and protective  features are not operational or are incapable of providing the necessary protection for its design and purpose.	Rs XXXX.00
26.	Adopting unsafe tapping, connections, termination of electrical lines and including the use of defective electrical fittings, power cables and electrical tools. Allowing cables / equipment to be submerged in water.	Rs XXXX.00
27.	Using any defective or unsafe equipment.	Rs XXXX.00
28.	Unauthorised use of fire equipment provided for emergency purposes.	Rs XXXX.00
29.	Failure to comply with an order issued by the Employer’s Construction manager, site agent, site safety supervisor safety officer and environmental officers in regard to safety/environmental matters.	Upto Rs XXXX.00
30.	Threatening safety/personnel misbehaviour, fighting or intentional causing hurt to others.	1)    Rs XXXX.00 & to be blacklisted and Worker to be banned from the site and a report will be made to the police.
31.	Other safety/environmental violations which are in breach of safety or environmental ordinances and regulations.	Rs XXXX.00
32.	Failure to wear safety harness and anchor to a secure structure, whilst working on a gondola.	Rs XXXX.00 and worker to be banned from site immediately.
33.	Tampering with the safety features of a gondola /  winches ./ scaffolding	Rs XXXX.00 and worker to be banned from site immediately.
34.	Access and egress to gondola other than at a designated landing.	Rs XXXX.00 and worker to be banned from site immediately.
35.	Failure to provide valid certificates for lifting appliances and accessories including any lifting appliances / accessories on vehicles delivering goods to the site, or for plant being used on site.	Rs XXXX.00
36.	Failure to provide voltage-reducing devices on welding machines.	Rs XXXX.00
37.	Obstruction of passageways, entrances, door ways, stairs, access to fire fighting equipment etc. and/or the erection unsafe accesses and crossings.	Rs XXXX.00
38.	Failure to attend the Morning Site Assembly Meetings.	Rs XXX.00
39.	Failure to tidy up the Sub contract works after each day work	Rs XXXX.00
40.	Failure to attend the Site Safety Walk	Rs XXXX.00
41.	Failure to provide Site Safety Supervisor/Representative as per the requirement of the latest ordinance.	Rs XXXX.00

For your any clarification on safety matters, contact should be made to the relevant the Employer site management.

Special Note : If the Contractor fails to meet the EH&S guidelines, the Personal Protective Safety Equipment will be provided by the Employer and the cost of the same will be deducted from Contractor’s bill.