OSHA Clarifies Its Multi-Employer Work-Site Policy
 
March 1, 2000
 

Are you aware of what your obligations and liabilities are with respect to safety on a multi-employer work site? OSHA recently issued a change to its Field Inspector's Reference Manual to give clear and more detailed guidance on when citations should be issued to one or more employers at multi-employer work sites. Employers would do well to review the procedure that OSHA Compliance Officers follow in determining whether to issue a citation, and to whom to issue it.

The creating employer is defined as one who has caused a hazardous condition that violates an OSHA standard. A creating employer is citable even if the only employees exposed are those of other employers at the site.

The exposing employer is defined as one whose own employees are exposed to the hazard. If the exposing employer created the violation, it is citable for the violation as a creating employer. If the violation was created by another employer, the exposing employer is citable if it: (1) knew or should have known of the hazards; and (2) failed to take steps consistent with its authority to protect its employees. The exposing employer has a duty to correct any hazards for which it has authority to do so, or where it lacks the authority to correct the hazard, it is citable if it fails to do each of the following: (1) ask the creating and/or controlling employer to correct the hazard; (2) inform its employees of the hazard; and (3) take reasonable alternative protective measures.

The correcting employer is defined as one who is responsible for correcting hazards. A subcontractor whose sole duty is the responsibility for erecting and maintaining the fall protection equipment would be characterized as a correcting employer. The correcting employer would be citable if it failed to exercise reasonable care in discovering the violations in light of the amount of activity and size of the project site.

The controlling employer is defined as one who has general supervisory authority over the work site including the power to correct safety and health violations itself, or require others to correct them. The controlling employer normally is not required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards as the subcontractor which it employs. The directive gives a number of factors used in determining how frequently and closely a controlling employer must inspect to meet its standard of reasonable care.

Control can be established by contract, in the case of a general contractor with control of the site, or by the exercise of control in practice, as in the case of a construction manager who, although he does not have direct control over safety, does exercise control over the sequencing of work which may affect site safety. If the employer has broad responsibility involving almost all aspects of the job and the authority to resolve such things as disputes between subcontractors, set schedules and determine sequencing, he may be considered a controlling employer.

Because OSHA has published the analysis that its Compliance Officers will undertake in determining whether citations will be issued, employers may do well to track the language and analysis of the directive in their contracts and safety programs. For instance, a general contractor may want to incorporate into its safety manual and procedures those factors that are cited in the directive that will be measured by OSHA in determining whether the GC has met its standard of reasonable care.

For more information please call Michael G. Murphy at 1-888-688-8500.