Contractors Beware: You May Have "Constructive" Knowledge of Safety Violations And Not Even Know It

by Ryan McLane
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The Kentucky Court of Appeals issued a decision this summer reinforcing the strict burden placed on contractors to comply with safety regulations. The decision requires employers to take personal responsibility to ensure that their employees on the work site follow those safety regulations. To issue a monetary fine for a safety violation, the Kentucky Occupational Safety and Health Review Commission (KOSHRC) must find that the employer had knowledge of the violation. However, the knowledge requirement includes either "actual" or "constructive" knowledge. KOSHRC and the Kentucky Courts interpret "constructive knowledge" very broadly.

In a recent case, the Court of Appeals affirmed a $4,000 penalty against a roofing contractor for safety violations. A compliance officer with the Kentucky Labor Cabinet responded to telephone complaints that the roofers were not wearing fall protection safety equipment. The owner appealed the citation arguing he had no actual knowledge of the violations, he provided safety training to the employees and he provided the employees with safety equipment they were required to wear.

The Court found that despite the owner's efforts, the violations existed and he had "constructive" knowledge of them. The owner responded by claiming that he cannot be present at each work site to ensure his workers comply. He also argued he cannot afford to hire someone to perform that oversight. The Court labeled the argument "troubling and without merit."

The Court ultimately ruled that "constructive knowledge" includes the responsibility to use reasonable diligence to inspect work hazards and anticipate hazards, including the duty to actively supervise employees on the job.

Contractors must personally make sure workers on site are following their training and using their safety equipment.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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