In 1990, the Washington Supreme Court held in Stute v. PBMC1 that a general contractor could be held liable for an injury to a subcontractor’s employee that occurred as a result of a WISHA violation committed by that employee.  This rule (WRD 27.00) was subsequently extended to include any upper-tier subcontractor who, like a general contractor, has a non-delegable, specific duty to ensure compliance with all applicable WISHA regulations for “every employee on the jobsite,” not just its own employees.[1]  A general or upper-tier contractor is deemed responsible for protecting workers on the jobsite, including “any employee who may be harmed by the employer’s violation of the safety rules.” [2]

Subsequent lawsuits since 1990 have worked vigorously to extend this duty also to owner/developers, landowners whose independent contractors fail to comply with safety and health regulations, and now property owners and other employers, depending on the degree of control exercised and whether they control or create a hazard.  Examples of criteria for determining that a property owner falls under these regulations are:

The essence of the contract with the contractor (whether written or verbal) is the contractor’s personal labor
The homeowner is in some manner controlling or directing the contractor’s day-to-day activities such as:
Directing and/or supervising the contractor on how to do the work
Setting specific work hours, like workday start and end times, or lunch or rest breaks
Controlling how payment occurs, whether monetary or another form of compensation
Supplying materials, tools or equipment required to complete work activities.

On October 30, 2016, The Department of Labor and Industries expanded WRD 27.00. The basis for this expansive duty to ensure safety for all employees and non-employees on the jobsite arises from the top entity’s (general contractor, upper-tier contractor, owner, developer, landowner, etc.) “ innate supervisory authority,” which “constitutes sufficient control over the workplace.”[3]  The law determines that this entity is in the best position, financially and structurally, to ensure WISHA compliance.  Because this entity has authority to direct the working conditions on a construction site, they have ultimate responsibility under WISHA for job safety and health at the job site.

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