- Posted by Matt T. Paxton
- On January 15, 2015
In Washington, general contractors are primarily responsible for compliance with the Washington Industrial Safety and Health Act of 1973 (“WISHA”), even when it comes to the conduct of their subcontractors. If a subcontractor commits a violation, the Washington Department of Labor and Industries (“L&I”) may still issue a general contractor a citation. The Board of Industrial Insurance Appeals – the quasi-judicial administrative body charged with reviewing L&I citations – has found a limited exception to a general contractor’s “primary responsibility,” but only if the general contractor has a safety program that is effective in practice and the violation was the result of unpreventable misconduct.
General Contractor’s Primary Responsibility
A general contractor has a duty to comply with WISHA and associated regulations, even with regard to its oversight of its subcontractors.[i] In Stute v. P. B. M. C., an employee of a subcontractor on a project fell from a wet, slippery roof while installing gutters.[ii] Neither the contractor nor subcontractor provided any safety equipment. The subcontractor’s employee sued the general contractor for negligent safety conditions on a job site and presented evidence of the general contractor’s failure to ensure that its subcontractor complied with WISHA regulations. The trial court found that the general contractor did not owe the subcontractor’s employee a duty to provide safety equipment, and the Court of Appeals summarily affirmed. On appeal, the Washington Supreme Court reversed, finding that a general contractor must assume “primary responsibility” for WISHA compliance because of its innate supervisory authority. The general contractor’s primary responsibility cannot be delegated.[iii]
The Board of Industrial Insurance Appeals extended the reasoning in Stute to a general contractor’s exposure to L&I citations. Based on the reasoning in Stute, the Board has stated that a general contractor “would be responsible for any WISHA violations committed by” its subcontractor.[iv] Later, however, the Board took a step back, cautioning that “proof of a cited safety violations [does not] constitute sufficient proof” that the general contractor failed to meet its primary responsibility of ensuring.[v]
Unpreventable Subcontractor Misconduct as a Defense
In order to satisfy its “primary responsibility,” a general contractor must, at a minimum, establish a safety program that is “effective in practice.” If a general contractor creates and enforces such a safety program, it may avoid responsibility for isolated instances of code violations. In deciding whether a general contractor has satisfied its primary responsibility, the Board of Industrial Insurance Appeals looks at whether the general contractor has (1) a thorough safety program designed to prevent the violation; (2) adequately communicate its safety requirements to its employees and subcontractors; (3) taken steps to discover and correct violations of its safety rules; and (4) effectively enforced its safety program as written in practice.[vi]
For example, In Re: Intracorp Real Estate, LLC, a subcontractor committed several serious violations of WAC Ch. 296-155, including failure to use fall protection devices, failure to ensure the stairway have four or more risers with stair rail systems, failure to use eye protection, and failure to hold safety meetings. As a result, L&I issued a citation to the general contractor.[vii] The Board of Industrial Insurance Appeals reversed the citation, finding that the subcontractor had the contractual duty to comply with WISHA regulations. In addition, the Board found that the general contractor had in place a process designed to discover and control hazards and safety violations, which included pre-construction meetings, communicating safety expectations, weekly walk-throughs, site inspections, audit reports, an on-site safety representative, site-specific safety plans, safety training, weekly safety meetings, violation documentation processes, and a written disciplinary policy. As a result, the Board held that the subcontractor’s violations “were the result of unpreventable subcontractor misconduct” and that the general contractor had “fulfilled its primary responsibility as a general contractor…”
Creating a Safety Practice That is “Effective in Practice”
On August 1, 2001, in an attempt to clarify the requirements of Stute and its progeny, L&I issued a WISHA Regional Directive, which provides some “best practices” tips to general contractors for satisfying its primary responsibility of ensuring compliance with WISHA. Some of the suggestions of a safety program that is “effective in practice” include the following:
- Contractually requiring subcontractors to provide all safety equipment required to do the job and to indemnity the general contractor for any liability incurred as a result of a safety violation;
- Establishing policies and procedures designed to prevent safety violations, including defining roles and responsibilities, providing training, taking corrective action, outlining a disciplinary schedule, etc.;
- Developing written site-specific Safety Plan and Accident Prevention Program that identifies potential hazards and means to address those hazards, and requiring its subcontractors to do the same;
- Setting clear expectations that subcontractors comply with all regulations and effectively communicating those expectations, including making all safety documents available and accessible to all employees and subcontractors, holding mandatory safety meetings with written agendas, and promoting communication between itself and its subcontractors;
- Creating safety incentive or recognition programs to reward employees and subcontractors that comply with safety regulations or make safety suggestions;
- Conducting audits, assessments, and/or reviews of its employees’ and subcontractors’ compliance with safety regulations; and
- Enforcing its Accident Prevention Program and/or Safety Plan when safety violations are discovered, including documenting violations and following disciplinary schedules (such as, verbal or written reprimands, demotion, suspensions of work, reduction in pay, or termination).
[i] RCW 49.17.060; see also, WAC 296-155-040.
[ii] 114 Wn.2d 454, 788 P.2d 545 (1990).
[iii] Degroot v. Berkley Const., Inc., 83 Wn. App. 125, 130, 920 P.2d 619 (1996).
[iv] In re Atkinson-Dillingham, J.V., Dckt. No. 88 W091 (1990).
[v] In re: Exxel Pacific, Inc., Dckt. No. 96 W 182 (1998).
[vi] Id.; see generally, Washington Cedar & Supply Co. v. State, Dep’t of Labor & Indus., 119 Wn. App. 906, 83 P.3d 1012 (2003); see also RCW 49.17.120(5) (applying these elements to unpreventable employee misconduct).
[vii] Dckt. No. 99 W 0349 (2001).