OSHA Continues Its Focus on Multi-Employer Worksites

OSHA is continuing its focus on multi-employer worksites, and contractors that oversee the work of other employers’ and subcontractors’ workers need to be aware of the long reach the workplace safety agency has.

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.

Under its “Multi-Employer Citation Policy,” OSHA uses a two-step process to determine which employers it will cite in a workplace.

First, it defines the type of employer each employer on a worksite is:

• Creating – 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.
• Exposing – 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.
• Correcting – A correcting employer is 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 – 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.

A single employer may fall into more than one category.

Once the employer is defined, the agency tries to determine if the employer’s actions were sufficient to meet its obligations. If OSHA determines that the employer did not meet its obligations, the employer will be cited.

Controlling employers have highest burden

Worksite owners and operators are typically 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
• Effective enforcement of a site-wide safety and health compliance program.

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 they have hired.

The final test

If an OSHA inspector finds workers painting the ceiling under exposed, hot wires, which employer would be cited?

In a case like this, three employers could be on the hook:

• The general contractor – As the controlling employer, the general contractor can be cited for allowing all workers present to be exposed to the hazard.
• The electrical contractor – The electrical contractor is the creating employer and can be cited for not covering the exposed wiring. The electrical contractor’s employees do not need to be present at the time when OSHA finds the painters working around the exposed wires. The electrical contractor can also be the correcting employer.
• The painting contractor — The painting company is the exposing employer and can be cited for allowing its employees to work in a hazardous environment.

As you can see, it’s not hard for a contractor to be swept up in a multi-employer citation. Knowing where you stand as one of four types of employers, will help you understand your responsibilities to ensure a safe workspace.

Even if you don’t put your own employees at risk, you may be putting the workers of another firm in danger, and in OSHA’s eyes, you are equally liable for any accidents that might occur.