Elements of PSM: Contractors

“That’s why kings send ambassadors. This way, if someone gets captured, the king is still safe. We, my friend, are something Elend can never be: expendable.”  — Brandon Sanderson

When OSHA was first developing the Process Safety Management (PSM) standard (29 CFR 1910.119), there was a growing practice in the chemical process industries of contracting out the most dangerous jobs. One of the advantages of this approach was that when a worker was injured or killed doing these dangerous jobs, it didn’t count against the facility’s accident rate. It was as though contractors were expendable.

OSHA was having none of it, so the sixth of the 14 elements of the PSM standard is about contractors –  29 CFR 1910.119(h).

What Does OSHA Mean by “Contractor”

When many people think of contractors, they think of independent individuals or companies that perform construction work, either by building new facilities or by modifying existing facilities. They are not wrong, but the term is not limited to construction workers, be they laborers, carpenters, welders, electricians, or other trades. The term also applies to any worker employed by an entity other than the “host” employer. So, a temporary worker employed through an employment agency is a contractor. So is a worker “permanently” assigned to support a site, but employed by a service company.

In general, OSHA’s policy regarding worksites where the working environment is controlled by more than one employer is to hold multiple employers responsible for workplace hazards and other violations of OSHA regulations. “OSHA will issue citations not only to the employer whose employees were exposed to the violation, but to other employers such as general contractors or host employers.”

In terms of the PSM standard, however, OSHA is more specific. The provisions of 29 CFR 1910.119(h) apply to “contractors performing maintenance or repair, turnaround, major renovation, or specialty work on or adjacent to a covered process.” Unfortunately, OSHA does not define what it means by “specialty work”, neither in the standard itself or in the instructions to OSHA personnel inspecting PSM-covered chemical facilities, CPL 03-00-021. The standard does give a hint about the limits of applicability. “It does not apply to contractors providing incidental services which do not influence process safety, such as janitorial work, food and drink services, laundry, delivery or other supply services.”

Employer Responsibilities

The host employer has six responsibilities for contractors’ work that is subject to the PSM standard.

1. The host employer must evaluate the contract employers’ safety performance and safety programs before selecting the contract employer. As with all things OSHA, the host employer needs to document this evaluation.
2. The host employer must inform the contractor of any fire, explosion, or toxic release hazards related to their work.
3. The host employer must explain the facility’s emergency action plan as it relates to the contractor.
4. The host employer must control the entrance, presence, and exit of contractors to PSM-covered processes, and document this with a safe work practice. A sign in/sign out log meets this requirement, as long as there is also a procedure to describe how the log works.
5. In addition to evaluating the contract employers’ safety performance and safety programs at the time of selection, the host employer must periodically re-evaluate safety performance and programs. OSHA doesn’t stipulate how often these periodic re-evaluations must occur, but the host employer must document it in an evaluation program.
6. The host employer must keep their own injury and illness log for contractor’s work in the covered process.

Contract Employer Responsibilities

Contract employers also have responsibilities when working in processes subject to the PSM standard. The standard lists five contract employer responsibilities:

1. The contract employer must train their employees to safely perform their jobs.
2. The contract employer must ensure that their employees receive training on the safety information shared by the host employer, particularly about the fire, explosion, and toxic release hazards, as well as the facility’s emergency action plan. If the host employer and contract employer agree, the host employer may give this training, but the contract employer is still responsible to see that it happens.
3. The contract employer must keep training records for each contract employee working in the covered process, with all the usual information: name, training dates, and means used to verify that the employee understood the training.
4. The contract employer is responsible for ensuring that their employees follow all of the facility’s safety rules, which includes the rules for controlling access to the covered process.
5. The contract employer must inform the host employer of any hazards associated with their own work, and of any hazards the contractor discovers while doing their work.

Some Consternation

Most will find the responsibilities listed by OSHA for both host employers and contract employers to be unobjectionable. There are two, however, that cause a bit of consternation with some host employers.

One is the need to control access to the covered process, especially in smaller facilities, where host employers want to be able to assign workers to an area and allow them to come and go as they need to. This is not acceptable to OSHA. Access must be controlled and there must be a procedure in place that documents the work practice that controls access.

The other source of consternation is the need for host employers to keep their own injury and illness log for contractors. Yes, contract employers are already keeping an OSHA 300 Log, per the requirements of 29 CFR 1904.29, but this is not a substitute for the log kept by the host employer. However, the log doesn’t necessarily have to be in the form of an OSHA 300 log.

Contract Out Work, But Not Responsibilities

There are many good reasons for contracting the work in a covered process to third parties. These include relying on the skill and experience of contractors to perform the work more safely than employees of the facility are capable. The desire to shift the responsibility for hazards onto others is not one of them.

Regardless of the reasons for using contractors, those operating a PSM-covered process cannot delegate their responsibilities for keeping their covered process safe.