Construction contractors put safety first. They set policies requiring jobsite conditions to be safe, constantly track and improve upon processes to maintain safety during work, and collaborate with owners, subcontractors and consultants to consistently maintain jobsite safety requirements. Contractors maintain safe work practices for the sake of safety and not merely to avoid liability.

However, the way in which contractors operate to maintain safety can also help them avoid potential liability. The first and most obvious way for Oregon contractors to manage liability in connection with work accidents is to keep workers’ compensation insurance. This simple step is mandated by Oregon law and reflects a judgment made long ago by the Oregon Legislature that the workers’ compensation system is an effective way to equitably make an injured worker whole.

There are many opinions about the workers’ compensation system, but that is not the focus of this article. Instead, I’m looking at a much lesser known situation where a contractor can be sued for a jobsite injury under Oregon’s Employer Liability Law (ELL).

Such a scenario may surprise contractors who understand that the workers’ compensation system is the exclusive process in which injured workers can pursue compensation. The issue arises, however, where a worker is not directly employed by a contractor (or other entity) and is injured on a jobsite controlled by the contractor. In that situation, the injured worker would not be able to make a claim against the contractor’s workers’ compensation insurance because the worker is not employed by the contractor.

However, the ELL permits people who are not necessarily employees of a contractor to bring claims against contractors who are in control of a jobsite. As many contractors seek to achieve, the ELL requires employers that have control over dangerous work to
use every device and precaution that is practicable to protect employees. And, as noted, courts have applied the ELL to “indirect employers.”

A contractor might be an indirect employer if a court concludes that the contractor’s conduct satisfies one of three standards: first, if the contractor was in a “common enterprise” with the worker’s employer; second, if the contractor had a right to control the way the dangerous work was performed; or third, if the contractor actually controlled the way the dangerous work was performed. Any one of those three factors could result in an employer being responsible to satisfy the ELL’s high standards.

This potential issue calls for contractors to consider the distribution of safety responsibilities frequently when approaching a jobsite. This is because construction sites will frequently be considered to require dangerous work and implicate the high standards set by the ELL.

Several common practices could potentially implicate ELL exposure. Sometimes on a jobsite workers will use equipment belonging to another contractor. Courts have held that when one contractor shares equipment with another contractor, the two are engaged in a “common enterprise” for the purpose of ELL liability. So if a worker is hurt using equipment belonging to another contractor, the worker may have a claim against that contractor.

Another event that implicates the ELL arises when a contractor implements a safety protocol but then does not follow through with the protocol. For example, a general contractor may instruct a subcontractor to cover a dangerous condition to maintain jobsite safety. If the subcontractor fails to do so and one of its employees is injured, that person may sue the general contractor under the ELL.

One last example arises when a prime contractor retains in its subcontracts the right to specify safety protocols. An employee of the subcontractor who is injured may subsequently claim that the prime contractor’s retention of the right to control safety protocols supports liability under the ELL. Indeed, when a prime contractor in fact directs a subcontractor to install a safety measure, such as fall protection, and that fall protection fails, the worker who is injured as a result may have an ELL claim against the prime contractor that directed the fall protection even though the prime contractor did not employ the worker.

Safety was the starting point in each of these examples. The failure that led to potential liability in each example is that the entity initiating the safety requirement did not see the issue through. For example, workers are not put on equipment until they can satisfy their employers that they can operate the equipment safely. By allowing another worker to use equipment without proper vetting, an employer can face ELL exposure, or a contractor that demands a safety measure should in fact see it through. Why demand a safety measure if it is not worth the effort of full implementation? Following up on safety meeting minutes is therefore important.

Indeed, contractors are very good at maintaining jobsite safety. By staying vigilant about safety practices and appropriately managing common practices at jobsites, contractors can keep jobsites safe and also limit ELL exposure.

Column first appeared in the Oregon Daily Journal of Commerce on September 18, 2020.

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