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Who's Responsible Under OSHA's Multiemployer Citation Policy?

Multiemployer worksites, not surprisingly, complicate labor law compliance and raise vexing questions. When are you responsible for hazards affecting another employer’s workers? What responsibility do other employers have for the safety of your workers?

Having employees who work for multiple employers on the same project or in the same facility is becoming more common. This is true especially in the construction and manufacturing industries but also anywhere a workspace is owned by one company but filled with multiple contractors, consultants and temporary workers employed in a variety of operations. The Occupational Safety and Health Administration (OSHA) can and will issue citations to one or more employers at a multiemployer worksite through its multiemployer citation policy. The policy describes the process for determining responsibility when more than one employer on a worksite might be citable under OSHA regulations.

Who Is Responsible for What?

OSHA will first categorize each of the relevant employers at a multiemployer worksite based on their respective roles: creating, exposing, correcting or controlling. A single employer may fall into more than one category. Once OSHA categorizes an employer, the agency will evaluate whether the employer met its obligations under OSHA requirements. If OSHA determines that the employer did not meet its obligations, the employer will be cited.

Creating employers are those whose workers create a hazardous condition that violates an OSHA standard. Employers that create violative conditions are citable even if the only employees exposed are those of other employers at the site. An example of a creating employer would be a host employer operating a factory that failed to cover chemical drums despite a servicing contractor’s repeated requests, resulting in airborne levels of the chemical that exceed OSHA’s permissible exposure limit.

Exposing employers are those whose workers are exposed to a hazard on a multiemployer worksite. Only exposing employers can be cited for a general duty clause violation. If the exposing employer created the violation, it is citable as a creating employer. If the violation was created by another employer, the exposing employer is citable if it knew of the hazardous condition or “failed to exercise reasonable diligence” to discover the condition and failed to take steps consistent with its authority to protect its employees. If the exposing employer lacks the authority to correct the hazard, it is citable if it fails to ask the creating and/or controlling employer to correct the hazard, inform employees of the hazard or take reasonable alternative protective measures. In extreme circumstances, the exposing employer is citable for failing to remove its employees from the job to avoid the hazard.

For example, the exposing employer would be cited if its workers were responsible for cleaning a work area around an unguarded hole and it had neglected to ask the host employer that operates the facility to install them.

The facility operator in that example is a correcting employer, defined as being engaged in a common undertaking on the same worksite as the exposing employer, and responsible for correcting the hazard. The correcting employer can be cited if it doesn’t exercise reasonable care in preventing and discovering violations and does not meet its obligations to correct hazards even if none of its workers were exposed to the hazard.

Controlling employers are the employers with general supervisory authority over the worksite, including the power to correct safety and health violations or require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.

Higher Compliance Burden

Worksite owners and operators are most likely the controlling employers under OSHA policy and carry a higher compliance burden than other employers at the site.

OSHA holds controlling employers responsible for exercising “reasonable care” to prevent and detect violations on the worksite. Reasonable care generally requires periodic inspections of the worksite, implementation of an effective system for correcting hazards and effective enforcement of a sitewide safety and health compliance program, although the standard is lower than what is required of an employer protecting its own employees. Controlling employers are not required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards as the employers it has hired.

Factors that affect how frequently and closely a controlling employer must inspect to meet its standard of reasonable care include the scale of the project, the nature and pace of the work, and the controlling employer’s knowledge about the safety history and safety practices of the employers it hired. OSHA will expect more frequent inspections if the controlling employer knows or should have known that the other employers on site have a history of noncompliance with safety regulations.

Final Test

If an OSHA inspector walks onto a construction site and finds workers painting a room with the wall plates removed and electrical wiring exposed, for example, who will be cited? In this case, the general contractor, the electrical contractor and the painting company could all be cited.

The electrical contractor is the creating employer and can be cited for removing the wall plates, even if it is not present at the time of the violation involving the painting crew. The electrical contractor can also be the correcting employer.

The painting company is the exposing employer and can be cited for allowing its employees to work in a hazardous environment.

As the controlling employer, the general contractor can be cited for allowing all workers present to be exposed to the hazard.

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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