Safety 4Site Overview

The Messer Safety4Site™ Program (the “Program”) has been established by Messer with the objective of reducing unsafe conditions which could cause accidents on Messer projects. It is applicable to all Messer employees; and subcontractors, subsubcontractors and material suppliers of all tiers (all of the foregoing being referred to in this document as “Subcontractors”) in addition to the obligation of all Subcontractors, under the Subcontract Documents, to comply with all applicable federal, state, and local occupational safety and health laws including, but not limited to, standards, regulations, and requirements under the Occupational Safety and Health Act ("OSHA"). The Program does not create a Messer duty or assurance of safety to any Subcontractor or Subcontractor’s employee (see Additional Terms, below).

Each Subcontractor shall comply with the following project safety requirements:

• Eye Protection
  Each Subcontractor shall provide, and require its employees to utilize, eye protection at all times on this project. This requirement applies to all employees at all times while on site except during scheduled breaks away from potential eye hazards or while in a trailer performing office functions.
• Huddle Meetings
  Each Subcontractor shall conduct a “huddle” meeting prior to every work shift to discuss the activities of the shift and to establish a safe plan of action to accomplish the work. This meeting shall be conducted with all employees working on site by the onsite leader for each Subcontractor. It is to be an interactive meeting for all participants. Any potentially unsafe situations shall be assessed and dealt with prior to starting a particular activity. If the work intended to be performed changes over the course of the shift, it is the responsibility of the Subcontractor’s onsite leader to assure that the persons involved review and amend their safety plan accordingly before commencing the revised work. No activity shall proceed without a plan and the necessary equipment and processes to address any safety concerns.

Note that Messer has implemented the project safety requirements noted above for all Messer employees.

Each Subcontractor and Messer employee shall be subject to specific remedies set forth below in case of violation of the OSHA Focus 4 Hazards (falls, electrical, struck by, caught in/between) by its employees. For covered violations (either actions or omissions) related to the OSHA Focus 4 Hazards, the following shall apply:

First Violation by an Employee

1. Upon notification by Messer of the violation, Subcontractor shall remove the employee or Messer shall remove its employee from the site for the remainder of that working day (and for the next working day also if removal occurs in the second half of the employee’s shift). If the employee is a supervisor or if Subcontractor’s supervisor is not readily available, Messer may direct the employee to leave the site and the incident shall be reported to Subcontractor’s management.
2. Upon return, the Subcontractor (or Messer if a Messer employee is involved) shall give the employee a one-page handout on the Focus 4 Hazards. Employee must read, sign and date. Subcontractor must discuss the violation at the next huddle meeting.

Second Violation by the same Employee
This section applies in case of violation by an employee (of a subcontractor or of Messer) of the same Focus 4 Hazard within one year, or a different Focus 4 hazard within three months; otherwise a subsequent violation by the same employee is treated as a First Violation by that individual.

1. A subcontractor employee will not be permitted to work on any Messer project for one year. Prior to return to work on Messer projects, the Subcontractor must propose remediation/training for that employee and the training must be acceptable to Messer.
2. A Messer employee will not be eligible for re-hire for 30 days and the completion of a 10-hour OSHA training program.

Second Violation for a Subcontractor
This section applies in case of a second violation by a Subcontractor’s employees on this project (whether the same or different employees are involved in the two incidents).

1. Subcontractor is required to provide a dedicated, qualified safety person to the project to supervise the daily huddles and the work of the Subcontractor, at no additional cost to the Owner or to Messer. This safety person must be on site whenever the Subcontractor is performing work on the project, until such time that Subcontractor has demonstrated to Messer’s satisfaction that a significant improvement with the Subcontractor’s safety performance has occurred..

Multiple Violations
This section applies if Subcontractor fails to have a dedicated safety person on site at all times while its work is being performed after being cited for a Second Violation for a Subcontractor, or if a Subcontractor incurs a total of three or more covered violations on this and any other Messer projects collectively, during any 12-month period.

If the Subcontractor has a direct contract with Messer, Messer may terminate those contracts for cause without further notice or opportunity to cure, and thereafter pursue all other available remedies for such default. If the Subcontractor does not have a direct contract with Messer, Messer may direct the Subcontractor under which the violating Subcontractor is working to remove the violating Subcontractor permanently from the project; in that event, the higher-tier Subcontractor has the responsibility of fulfilling the violating Subcontractor’s work by other means at no additional cost to the Owner or Messer. If Messer elects not to terminate, Messer may impose other reasonable sanctions including additional safety assurance requirements.

Additional Terms

1. This Program is subject to change by Messer from time to time with notice to Subcontractor; however, Subcontractor is not required to accept material increases in its obligations or liability under the Program without its consent.
2. It is the intention of the Program to cover violations related to Focus 4 Hazards which are of a significant nature; however, it is NOT necessary to have an accident in order to find a violation. The attached summary outlines several examples of violations for each Focus 4 Hazard that are deemed to be covered; for any situation not listed on the attached summary, Messer’s good faith determination as to whether it is a covered violation or not shall be final. Every identified violation will be reviewed by the supervisor of the site manager to ensure consistency of interpretation of a violation of the Focus Four Non-negotiables.
3. In Messer’s discretion, a group of related individual violations may be treated as a single violation at the Subcontractor level. For example, if several Subcontractor employees engaged in related work are failing to use required fall protection, each such employee will be charged with an individual violation when the situation is discovered by Messer but if Subcontractor has no previous violations on this project, Messer may treat the incident as a single violation for Subcontractor and not impose Second Violation or Multiple Violation sanctions on Subcontractor.
4. For purposes of Multiple Sanctions, “Messer projects” include all projects in which Subcontractor is a subcontractor or material supplier of any tier under Messer, and all projects in which Messer provides construction management services covering Subcontractor pursuant to an agreement with the Owner.
5. It is not Messer’s intention to interfere in Subcontractor’s relationship with its employees. When feasible, significant actions under the Program such as excluding an employee from the project site will be notified by Messer to a supervisory employee of the Subcontractor for the Subcontractor to put into effect immediately, but Messer reserves the right to take immediate action to rectify unsafe situations, and to direct a Subcontractor employee to leave the site if Subcontractor management personnel are not on site. If Subcontractor is directed to remove an employee from the site, the disposition of the employee after leaving the site and any resulting compensation issues for the employee are solely between the Subcontractor and the employee, and the Program does not require that the Subcontractor withhold pay from the employee for the time that the employee is barred from the site, but there shall be no additional cost to the Owner or Messer for the Work as a result of exclusion of an employee or any other action taken pursuant to the Program.
6. Messer and the Owner do not assume any responsibility whatsoever to Subcontractor, to its employees, or to third parties, for supervising or monitoring the safety precautions or compliance of the Subcontractor and its employees; Subcontractor remains solely responsible for these matters and shall defend and fully indemnify the Owner and Messer, as provided in the Subcontract Documents, against any claims or damages resulting from safety violations or other negligence of Subcontractor employees. Messer assumes no duty to anyone to detect and require correction of violations. Messer may, but is not required to, make periodic inspections of the project site. By establishing the Program and conducting other safety-related activities on the project, Messer is not undertaking any duty to Subcontractor, to Subcontractor’s employees, or to third parties concerning safety on the project and any such duty is expressly disclaimed.
7. Sanctions provided under the Program for individuals and the Subcontractor are not exclusive and Messer reserves all other remedies provided under the Subcontract Documents or by law.
8. The Owner and Messer shall have no liability whatsoever to any Subcontractor or Subcontractor’s employee or any third party for actions taken by Messer pursuant to the Program in good faith, even if it is later determined that such action was factually or legally unjustified.
9. A Subcontractor is not charged with a violation under the Program for any violation committed by an employee of a subsubcontractor or material supplier to that Subcontractor, as long as the Subcontractor’s supervisory personnel did not know about or condone the violation prior to the violation being observed by Messer. However, each Subcontractor must take all necessary actions to make the Program binding on its lower tiers and to cooperate with Messer in implementing any applicable sanctions against its lower tiers. Subsubcontractors shall be entities with written agreements that include similar terms and conditions as those of Subcontractors with direct contracts with Messer. In the absence of such written agreements, Subsubcontractor employees and representatives shall be treated as employees of the Subcontractor.