How Far Must You Go to Ensure the Safety of an Independent Contractor’s Employees?

After an employee of National Meat Processors, Inc. (NMP) was killed when the machine he was cleaning unexpectedly started up, management decided to contract out the cleaning operation to an outside company, Cleanpro, Inc.

Not so fast, said OSHA officials involved with the case. You need to develop an extensive lockout/tagout program. Make sure that not your own employees comply with it, NMP was told, and your outside contractors, like Cleanpro, must follow your safety procedures as well.  NMP agreed and signed a settlement agreement with OSHA specifying that:

• Independent contractors would receive a copy of the lockout policy
• Their supervisors would be notified of violations observed by NMP
• Regular meetings would be held with contractor management where lockout safety would be stressed

NMP followed the requirements of the settlement agreement with Cleanpro. Included was a provision in the contract that said that if Cleanpro did not comply with the safety policy, its contract could be terminated by NMP with one week’s notice. Also, NMP could bar entry of any of Cleanpro’s employees at any time.

Despite these strict procedures, things did not go smoothly with Cleanpro.  On several occasions, several NMP managers observed the contractor’s employees cleaning machinery without locking out the equipment. They complained to Cleanpro, but nothing seemed to be done.

Procedures Not Followed

When a Cleanpro employee got his hand caught in a moving belt, NMP supervisor Bill Hadley went to speak to his own safety director.

“Jim, I’m fed up with Cleanpro. They’re just not following our lockout procedures,” Hadley complained. “This is the third time I’ve caught them sticking their hands into the machines while they’re running.  I even told one of them what he was doing wrong, and you know what he said to me? ‘You can’t tell me what to do—I don’t work for you.’ Do you believe that? And the supervisors all ignore us.”

“I’ll send a letter out right away to Cleanpro’s management and tell them to review LOTO procedures with their employees,” the safety director promised.

However, two weeks later, tragedy struck again. This time a Cleanpro employee was killed. The cause? The worker was hit on the head when the machine energized unexpectedly while he was cleaning it. Investigation revealed the employee had failed to lockout the machine and had removed a guard.

OSHA found willful violations of the lockout/tagout rule, citing Cleanpro and NMP.

After the Review Commission ruled in favor of OSHA, NMP appealed the decision in court, arguing:

• We had no control over Cleanpro’s employees.
• This incident occurred during the night when our supervisors weren’t even present.
• We did everything we could to communicate our lockout/tagout procedures to Cleanpro.

OSHA replied:

• NMP knew that Cleanpro wasn’t following safe practices, yet the company didn’t go far enough to stop them.
• NMP should have removed any Cleanpro employees who violated lockout/tagout procedures or exercised its right to terminate the contract.

DECISION: NMP should not be cited for its contractor’s violations because it did not control the contractor’s employees, ruled the court. Just because NMP had the ability to fire Cleanpro doesn’t mean that it had the power to discipline the contractor’s workers.

Of particular interest to the judges was the fact that Cleanpro employees thought NMP did not have authority over them. The court was also impressed with NMP’s overall compliance with the OSHA settlement agreement.

COMMENTS:  Your company should always make sure that an independent contractor is aware of your safety program.  However, this case shows that there are limits to how far OSHA can go in holding employers responsible for the safety of their contractors’ workers.