Who’s Responsible for OSHA Violations at Multi-Employer Sites?

Date First Published on SafetySmart Compliance: March 2nd, 2012
Topics: Contractors |

OSHA requires “employers” to take measures to manage workplace hazards. But what if you hire outside contractors and subcontractors to carry out operations at your site? Which “employer” bears responsibility for compliance with OSHA requirements pertaining to the work? Here’s a look at how OSHA decides which employer(s) to hold liable for violations committed at sites where employees of more than one employer work.

The OSHA Multi-Employer Site Policy

There’s no OSHA standard that specifically addresses this question. The rules governing liability at sites with more than 1 employer are set out in a 1999 OSHA directive called  the “multi-employer site” policy. The policy is actually a set of directions telling OSHA inspectors how to determine which employer or employers to cite for a violation at multi-employer sites. There are 2 steps in the process:

Step 1: Determine Employer(s) Who May Be Held Liable, i.e., whether the employer is a creating, exposing, correcting or controlling employer; and

Step 2: Determine if Employer(s) Who Fall Into the 4 Categories Should Be Held Liable, i.e., whether its actions were sufficient to comply with the requirement.

The best way to explain the process is to go through the 4 kinds of potentially liable employers one at a time.

1. Creating Employers

Employers Covered: A creating employer causes a hazardous condition that violates the OSHA requirement.

Liability: The policy tells inspectors to cite creating employers even if the hazardous conditions it causes endanger the employees of other employers at the site.

Example: A factory owner hires a contractor to service machinery at the plant. The contractor asks the owner to cover drums of chemicals at the site; the owner doesn’t heed the request and, as a result, the contractor’s employees are exposed to the chemical above the PEL. The owner would be liable as a creating employer.

2. Exposing Employer

Employers Covered: An exposing employer is defined as one whose own employees are exposed to the hazard.

Liability: There are 2 possibilities:

  • If the employer created the violation, it should be cited as a creating employer; or
  • If the hazard was created by another employer, the employer can be cited as an exposing employer if:
    • It knew of the hazard or didn’t use “reasonable diligence” to discover it; and
    • It failed to take steps within its authority to protect its employees, i.e.:
      • If the employer has authority to correct the hazard, it must do so;
      • If the employer doesn’t have authority to correct the hazard, it must:
        • Ask the controlling and/or creating employer to do so;
        • Warn its employees of the hazard; and
        • Take “reasonable alternative protective measures.”

3. Correcting Employer

Employers Covered: The correcting employer is an employer engaged in a common undertaking on the same worksite as the exposing employer and who’s responsible for correcting a hazard, e.g., an employer given responsibility for installing or maintaining safety equipment or devices.

Liability: The policy instructs inspectors to cite the correcting employer(s) if it doesn’t take “reasonable care” to prevent and discover violations and correct the hazard.

Example: A carpentry contractor is hired to install, inspect, maintain and repair guardrails on a 15-story construction project. Subcontractors on the site are required to immediately notify the contractor if they see damaged or missing guardrails. The OSHA inspector finds a missing guardrail that wasn’t reported to the contractor. The contractor is the correcting employer; the inspector would then have to determine if it used reasonable care to detect and correct the missing guardrail. The failure of the subcontractors to report the missing guardrail might not be enough to get the contractor off the hook if the OSHA inspector thinks the contractor should have also conducted its own inspection.

4. Controlling Employer

Employers Covered: Includes employers with general supervisory authority over the worksite, including the power to correct or require others to correct health and safety violations. Control can be established in 2 ways:

  • By contract; or
  • If there’s no written contract explicitly giving the employer control, by exercising control in practice.

Liability: Controlling employers must use “reasonable care” to prevent and detect violations. The policy lists 5 factors for inspectors to use to judge if the controlling employer used reasonable care:

  • The scale of the project;
  • The nature and pace of work, including how frequently hazards change as the work progresses;
  • How much the controlling employer knows about the safety history and practices of the employer(s) it controls;

The controlling employer should inspect more frequently if it knows that other employers on the site have a history of non-compliance or hasn’t worked with those employers before and doesn’t know what their compliance history is.

Conversely, the policy instructs that less frequent inspections are necessary when the controlling employer has “strong indications” that the other employers are implementing effective health and safety measures.

See this article for a discussion of the recent controversy over the OSHA controlling employer rule.

Conclusion

One more point: The same employer can fall into—and thus be cited under—multiple classifications. Thus, for example, employers deemed creating, controlling or correcting employers are often exposing employers, too.

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