Contract Provision: Combatting Controlling Contractors Status
January 5, 2021
By Trent Cotney | Cotney Construction Law
The Occupational Safety and Health Administration routinely cites prime roofing contractors for their subcontractors’ bad acts. Investigators often try to determine whether a prime roofing company was the “controlling contractor” on a job site and responsible for the safety of its subcontractors. The following contract provision is designed to combat controlling contractor status by placing the burden of safety monitoring and enforcement for a subcontractor’s employees on the subcontractor. This is only the first step in the defense of a multiemployer site-based citation, and OSHA will be investigating what transpired on the job site—not just what is written in the contract.
Subcontractor as Controlling Contractor Provision:
“Subcontractor understands and acknowledges that Subcontractor shall control and implement all required safety procedures, and that Contractor shall only perform occasional inspections to determine conformance with the plans and specifications for the project. As a result, Contractor shall not be able to ensure Subcontractor (while working for Contractor) adherence to safety standards and the OSH Act or applicable state health and safety plans because Contractor cannot reasonably be expected to prevent, detect, or abate violative conditions by reason of its limited role on the project. Therefore, Subcontractor shall be solely responsible for controlling safety on the jobsite as it relates to Subcontractor.”