Oregon OSHA Construction Depot Safety and health newsletter for the Oregon construction industry

March 20, 2017

Sanitary facilities at construction projects: Who pays?

Some construction site owners and contractors might be familiar with section 654.150 of the Oregon Safe Employment Act, which requires toilets, warm water, and soap at projects estimated to cost $1 million or more. (Highway construction or maintenance projects, electricity, water, sewer, and gas transmission construction or maintenance projects are not covered by the requirement.)

But how many site owners and contractors understand ORS 654.160, which requires the construction project contract to state whether ORS 654.150 applies – and who pays for the toilets, warm water, and soap?

Want to know more about ORS 654.160? Here's a summary of the rule's key points (the entire rule follows at the end of the article):

  • ORS 654.160 requires the construction project contract to state whether ORS 654.150 applies. If ORS 654.150 applies, then the owner must state in the contract which party to the contract – the owner or the contractor – is responsible for the costs of providing sanitary facilities.
  • ORS 654.160 does not limit Oregon OSHA's authority to cite the construction project contractor for failing to meet the requirements in ORS 654.150.
  • ORS 654.160 does not allow the owner or the contractor to avoid responsibility for meeting the requirements of ORS 654.150.
  • If the construction contract does not state whether the owner or the contractor is responsible for providing sanitary facilities at the site, and Oregon OSHA determines that ORS 654.150 applies to the construction project, then the construction site owner is responsible for the contractor's costs to provide sanitary facilities. The construction site owner must also pay interest on the contractor's costs at the rate of 1 percent per month from the date the contractor asks for reimbursement until the contractor is paid.

654.160 Applicability of ORS 654.150 to be included in construction contracts; liability for cost of compliance.

ORS 654.160(1): A statement as to whether or not ORS 654.150 applies at the construction site shall be included in the contract for a construction project. If the contract states that ORS 654.150 applies, the owner shall also include in the contract documents a provision designating which party to the contract is responsible for any costs that may be incurred in complying with ORS 654.150 and the rules adopted pursuant thereto.

ORS 654.160(2): The owner of a construction site is liable to any contractor who is an employer at the site for costs incurred by the contractor if: (a) Representatives of the Director of the Department of Consumer and Business Services decide that ORS 654.150 applies to the construction project, and the contract documents did not designate which party to the contract for the project was responsible for complying with ORS 654.150 and the rules adopted pursuant thereto; and (b) The contractor incurs additional costs in complying with ORS 654.150.

ORS 654.160(3): In addition to being liable for the amount of the additional costs incurred, as provided by subsection (2) of this section, the owner is liable for interest on the amount at the rate of one percent per month from the date such contractor makes demand upon the owner to reimburse the contractor for such costs until the contractor is paid.