By: Sean T. Devenney, Drewry Simmons Vornehm, LLP
Construction sites, by their nature, often have multiple employers (i.e., subcontractors) working on a site at any given moment. However, under OSHA each employer/subcontractor is always responsible for maintaining a safe work space for its own employees. Of course, this is complicated on a construction project where the subcontractor may (or may not) be in control of the actual space where the subcontractors’ employees are working. It is important to note that OSHA may cite more than one employer for a given set of facts depending on the role each contractor played on the project.
OSHA’s field manual attempts to describe how and when OSHA believes it is appropriate to cite a given employer on a multi-employer jobsite. According to the field manual, the first step is to determine what category the employer fits within to determine whether the employer should be cited. Once OSHA determines the category then OSHA must determine whether citation of the employer is warranted based on the particular facts at issue. In this regard, the question that OSHA asks is whether the employer is: (1) the creating employer; (2) the exposing employer; (3) the correcting employer; or (4) the controlling employer. Each category of classification is then used to determine what facts are important to the decision of whether to cite the employer.
A creating employer is the employer that caused the hazardous condition. A creating employer can be cited even if its own employees were not exposed to the hazard. In short, if an employer is determined to be the “creating” employer of a particular hazard the employer should expect to be cited.
An exposing employer is an employer whose employees were exposed to the hazardous condition (presumably created by another employer). The exposing employer is citable if the exposing employer knew of the hazard (or should have known of the hazard); and (2) failed to take steps consistent with its authority to protect its employees. If the employer has the authority to correct the hazard, it must do so. If the exposing employer lacks the authority to correct the hazard the exposing employer must (1) ask the creating/controlling employer to correct the hazard; (2) inform its employees of the hazard; and (3) take steps to eliminate exposure of its employees to the hazard. In extreme situations, the exposing employer could be cited for failing to remove its employees from the job site.
A correcting employer is an employer that is engaged in a common undertaking on the same work site as the exposing employer and is responsible for correcting a hazard. An example of a correcting employer is an employer that is responsible for maintaining guardrails on a construction project during the course of the project. A correcting employer can only be cited if it fails to take reasonable steps to prevent and discover violations that fall within the confines of its particular safety related obligations on the project. As an example, if the employer that was responsible for maintaining guardrails failed to install the guardrails required, it could be cited for the offense.
A controlling employer is the employer that has general authority over the work site either by contract or by simply exercising control over the site. A controlling employer must take reasonable steps to prevent and detect safety violations. There are many factors that OSHA is required to consider in making a determination of what constitutes “reasonable” steps to prevent and detect safety violations. These include the scale of the work site, the nature of the work, and the relative familiarity that the controlling employer has with the other employers on site including evidence of a safety culture (or lack thereof) of those other employers on site.
As noted above, the exposing, correcting, and controlling employer all have the ability to argue that they took reasonable steps under the circumstances to avoid OSHA citations. In this regard, documentation of the steps taken to minimize exposure to a work place hazard is helpful to avoid liability and defend against an OSHA citation. Obviously, an effective work site safety plan and a general project wide safety culture are a great start to avoiding liability under OSHA.
For more information from OSHA relating to the various classifications of employers on multi-employers, click on the link https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=2024