August 31, 1995

Dr. Richard F. Andree
Vice President
Director
Safety & Health Services
Lovell Safety Management Company, Inc.
161 William Street
New York, New York 10038-2675

Dear Dr. Andree:

Your letters to Mr. Joseph Dear requesting clarification of the Occupational Safety and Health Administration (OSHA) standard 29 CFR 1926.32(f) addressing competent persons at construction sites has been forwarded to the Office of Construction and Maritime Compliance Assistance for response. I apologize for the delay of this response.

In view of your belief that the obligation to employ a "competent person" as called for in various standards rests on the "intermediate employer, the subcontractor," you have asked whether it is OSHA's policy that a general contractor must also have a competent person for each of the different trades or hazards at a construction site. Please be advised that your question can only be answered in general terms in view of the wide variety of fact patterns which multi-employer worksites present.

As you are aware, there are several specific standards, such as the crane standard and the excavation standard, which require the involvement of a competent person. Although you do not allude to it, there is also the general requirement at 1926.20(b)(2) to "provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers."

It is well settled that liability under the OSH Act may attach as a result of the employer's status as a creating, exposing, or controlling employer. It is also well settled that an employer's statutory obligations cannot be avoided through contractual arrangements. See, e.q. Baker Tank Co./Altech, Div. of Justiss Oil Co., 17 BNA OSHC 1177, 1995 CCH OSHD 30,734 (No. 90-1786-S, 1995) ("Even if the contract [with the storage tank's owner] had provided for the instruction of Baker's employees, Baker could not contract away its legal duties to its employees or its ultimate responsibility under the Act by requiring another party to perform them").

Another legal principle relevant to your inquiry is that

. . . the general contractor normally has responsibility to assure that the other contractors fulfill their obligations with respect to employee safety which affect the entire site. The general contractor is well situated to obtain abatement of hazards, either through its own resources or through its supervisory role with respect to other contractors. It is therefore reasonable to expect the general contractor to assure compliance with the standards insofar as all employees on the site are affected. Thus we will hold the general contractor responsible for violations it could reasonably have been expected to prevent or abate by reason of its supervisory capacity.

Blount Int'l. Ltd., 15 BNA OSHC 1897, 1991-93 CCH OSHD 29,854 (No. 89-1394, 1992), quoting Grossman Steel & Aluminum Corp., 4 BNA OSHC 1185, 1188, 1975-76 CCH OSHD 20,691 (No. 12775, 1976).

On the other hand, the Occupational Safety and Health Review Commission also noted in that decision that the duty imposed on a general contractor is a reasonable one and that a general contractor will not be held liable "for violations which it could not reasonably be expected to detect or prevent." 15 BNA OSHC at 1899, quoting Knutson Constr. Co., 4 BNA OSHC 1759, 1976-77 CCH OSHD 21,185 (No. 765, 1976), aff'd, 566 F.2d 596 (8th Cir. 1977). In a statement that is relevant to your inquiry, the Commission in Blount also noted that "[f]ar from requiring the contracting employer to duplicate the safety efforts of the specialist, the Act demands only that general contractors apprise themselves of which safety efforts their specialty subcontractors have chosen to make in completing their assignments." 15 BNA OSHC at 1900 n. 3. See also Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1018, 1991-93 CCH OSHD 29,317 (No. 87-1067, 1991), aff'd, 15 BNA OSHC 1953 (D.C. Cir. 1992) ("When an employer contracts with a specialist, the employer is justified in relying upon the specialist to protect against hazards related to the specialist's expertise, as long as the reliance is reasonable and the employer has no reason to foresee that the work will be performed unsafely"). In other words, a general contractor may rely on a subcontractor if there is a sound basis for that reliance.

We would normally expect that when an employer is engaged in an activity for which a competent person is required by a specific standard, the competent person will be provided by that employer. In many situations that employer will be a subcontractor rather than the general contractor. Other employers on the worksite, including the general contractor, who may have employees exposed to hazards associated with the activity need not provide a competent person of their own provided that they have taken appropriate steps to assure themselves that there is a competent person who is carrying out the prescribed duties. This point is illustrated not only by the Blount decision discussed above but by another decision of the Commission, Capform, Inc., 13 BNA OSHC 2219 (No. 84-556, 1989), aff'd 901 F.2d 1112 (5th Cir. 1990). In that case a citation was upheld against a formwork subcontractor whose employees worked in an excavation which it had not dug. The Commission held that if the subcontractor did not employ a competent person of its own, then it was obliged to assure itself that the requirements of the standard were being fulfilled by another party.

In addition to whatever responsibility it may have as an exposing employer, a general contractor would also share responsibility for those violations by its subcontractors which it could reasonably have detected and had corrected. We would expect general contractors to take the steps necessary to satisfy themselves that subcontractors engaged in activities which call for the involvement of competent persons will fulfill that obligation as well as the general inspection obligation imposed by 1926.20(b)(2). Alternatively, a general contractor may undertake to provide all or some portion of the competent person that may arise at the worksite. To the extent that a general contractor undertakes, by contract or otherwise, to inspect for worksite hazards, the persons performing such duties obviously must have sufficient competence to be capable of detecting the hazardous and violative conditions which may arise at the particular worksite.

In conclusion, we believe that good communications on a multi-employer worksite will prevent unnecessary duplication of effort while at the same time assure that each employer fulfills his obligations under the Act.

If we can be of any further assistance, please contact me (ext. 150) or Mr. Dale Cavanaugh (ext. 149) of my staff at (202) 219-8136.

Sincerely,



Roy F. Gurnham, P.E., J.D.
Director
Office of Construction and Maritime
Compliance Assistance