OSHA Multi Employer Citation Policy CPL 02-00-124

Jim Shelton, HNAO CAS

Multi-Employer Work Site Policy

The U.S. Court of Appeals for the Eighth Circuit, in a 2-1 decision, ruled that in the case of Solis v. Summit Contractors Inc., OSHA regulation 29 C.F.R. Sec. 1910.12(a) “is unambiguous in that it does not preclude OSHA from issuing citations to employers for violations when their own employees are not exposed to any hazards related to the violations.” Therefore, according to the ruling, the Occupational Safety and Health Review Commission (OSHRC) “abused its discretion in determining that the controlling employer citation policy conflicted with the regulation.”

Multi-Employer Work Site Policy

• Employers’ have a statutory duty to comply with OSHA standards and to exercise reasonable diligence to determine whether violations of those standards exist

• On multi-employer worksites (in all industry sectors) more than one employer may be citable for a hazardous condition that violates an OSHA standard

Multi-Employer Work Site Policy

• To determine whether more than one employer is cited a two step process must be followed:

STEP ONE – Determine whether the employer is a Creating, Exposing, Correcting, or Controlling employer

STEP TWO – Determine whether the employers actions were sufficient to meet the obligations based on which category that applies

Multi-Employer Work Site Policy

• Important notes:– An employer may have multiple roles– Only exposing employers can be cited for

General Duty Clause violations– The measures that a controlling employer must

take to satisfy its duty to exercise reasonable care to prevent and detect violations is less than what is required of an employer with respect to protecting its own employees

‘Creating’ Employer

• Creating Employer – The employer that caused a hazardous condition that violates an OSHA standard

• An employer must not create a violative condition and is citable even if only employees exposed are of other employers

‘Creating’ Employer

• Example – Host employer operates a factory and contracts with Company S to service machinery. Host fails to cover drums of chemicals despite S’s repeated requests to do so. This results in airborne levels of a chemical that exceed the Permissible Exposure Limit

‘Creating’ Employer

• Step 1 – Host is a creating employer because it caused employees of S to be exposed to air contaminants above the PEL

• Step 2 – Host failed to implement measures to prevent accumulation of the air contaminant. It could have implemented the simple engineering control of covering the drums. Having failed to implement a feasible control the Host is citable

‘Creating’ Employer

• Example – Employer M hoists materials onto floor 8 damaging perimeter guardrail. Neither its own employees or other employees of other employers are exposed to the hazard. It takes effective steps to keep all employees away from the unprotected edge and informs the controlling employer of the problem. M lacks the authority to fix the guardrails themselves

‘Creating’ Employer

• Step 1 – Employer M is a creating employer because it caused a hazardous condition by damaging the guardrails

• Step 2 – While M lacked authority to fix the guardrails it took immediate and effective steps to keep all employees away from the hazard and notified controlling employer. Employer M is not citable since it took effective measures to prevent exposure to the fall

‘Exposing’ Employer

• Exposing Employer – An employer whose own employees are exposed to the hazard

• If the hazardous condition was created by another employer the exposing employer is citable if:– Knew of the hazardous condition or failed to

exercise due diligence to discover it– Failed to take steps consistent with its

authority to protect its employees

‘Exposing’ Employer

– If the exposing employer has authority to correct the hazard it must do so

– If the exposing employer lacks authority to correct the hazard, it is citable if it fails to:

• Ask the creating and/or controlling employer to correct the hazard

• Inform its employees of the hazard

• Take reasonable alternative protective measures

• In imminent danger situations the employer can be cited for not removing EEs from the job to avoid the hazard

‘Exposing’ Employer

• Example – Employer Sub S is responsible for inspecting and cleaning a work area in Plant P around a large permanent hole each day. OSHA requires guardrails. There are no guardrails and fall protection is not used even though it is feasible to do so. Sub S has no authority to install guardrails. They asked Plant P to do so but they refused.

‘Exposing’ Employer

• Step 1 – Sub S is an exposing employer• Step 2 – While Sub S has no authority to install

guardrails, it is required to comply with OSHA rules to the extent feasible ie. steps to protect employees and ask employer that controls the hazard (Employer P) to correct it. Although Sub S asked for guardrails to be installed, and it was not corrected, Sub S is responsible to take reasonable alternative measures such as using personal fall protection. Sub S can be cited

‘Exposing’ Employer

• Example – Unprotected rebar on either side of an access ramp presents an impalement hazard. Sub E, does not have authority to cover the rebar. Several times Sub E asked the general contractor, Employer GC, to cover the rebar. In the mean time, Sub E instructed its employees to use a different access route that avoided the rebar and required them to keep as far away as possible.

‘Exposing’ Employer

• Step 1 – Since Sub E employees were still exposed to some unprotected rebar, Sub E is an exposing employer.

• Step 2 – Sub E made a good faith effort to get the general contractor to correct the hazard and took feasible measures within its control to protect its employees. Sub E is not citable for the rebar.

‘Correcting’ Employer

• Correcting Employer – Employer engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard

• Usually occurs where an employer is given responsibility of installing and/or maintaining particular safety/health equipment or devices

• Must exercise reasonable care in preventing and discovering violations and must meet its obligations of correcting the hazard

‘Correcting’ Employer

• Example – Employer C is hired to erect and maintain guardrails throughout a large 15 story project. C inspects all areas each day in the morning and afternoon along with the area where material is delivered to the perimeter. Other subcontractors are required to report damaged/missing guardrails to the GC. Employee C corrects them when found or reported.

‘Correcting’ Employer

• Cont… On the project a few instances of damaged guardrails have occurred. After the afternoon inspection of Floor 6 workers accidently damage a guardrail in one area. No one tells C of the damage and C has not seen it. OSHA shows up the next day prior to the morning inspection of Floor 6. None of C’s own employees are exposed to the hazard but other EEs are exposed.

‘Correcting’ Employer

• Step 1 – C is a correcting employer since it is responsible for erecting and maintaining fall protection equipment

• Step 2 – The steps C implemented to discover and correct damaged guardrails were reasonable in light of the amount of activity and size of the project. It exercised reasonable care in preventing and discovering violations. It is not citable for the damaged guardrails since it could not have reasonably known of the violation

‘Controlling’ Employer

• Controlling Employer – Employer who has general supervisory authority over the worksite including the power to correct safety and health violations itself or require other to correct them. Control can be established by contract, in the absence of explicit contractual provisions, by exercise of control in practice

• A controlling employer must exercise reasonable care to prevent and detect violations on the site

‘Controlling’ Employer

• The extent of the measures that a controlling ER must implement to satisfy this duty of reasonable care is less than what is required of an employer with respect to protecting its own EEs. This means they are not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or trade expertise as the employer hired

‘Controlling’ Employer

• Factors Related to Reasonable Care:– The scale of the project– Nature and pace of work including frequency

with which the numbers or types of hazards change as the work progresses

– How much the controlling ER knows both about the safety history and safety practices of the ER it controls and the ER’s level of expertise

‘Controlling’ Employer

– More frequent inspections are normally needed if the controlling ER knows the other ER has a history of non-compliance or possibly at the beginning of the project if they have never worked with the ER before and doesn’t know their history

– Less frequent inspections may be appropriate where controlling ER sees strong indications that the ER has implemented effective safety and health efforts

‘Controlling’ Employer

• Factors Related to Reasonable Care cont:

– The most important indicator of an effective safety and health effort by the other ER is a consistently high level of compliance. Other indicators include:

– Effective, graduated system of enforcement for non-compliance coupled with regular jobsite safety meetings and safety training

‘Controlling’ Employer

• Evaluating Reasonable Care:– In evaluating whether reasonable care was

exercised in preventing and discovering violations, consider if they:

– Conducted periodic inspections of appropriate frequency

– Implemented an effective system for promptly correcting hazards

– Enforced compliance with an effective, graduated system of enforcement and follow-up inspections

Inspections

• A some standards do outline responsibilities between a site and its contractors. For example:– 1910.119(h) Process Safety Management– 1910.146(c)(8) Confined Spaces– 1910.147(f)(2) Lock Out Tag Out– 1910.1200 (e)(2) Hazard Communication– 1926.1402 Cranes in Construction

Finding a Compliance Directive

CPL 02-00-124 and many other directives can be found on the OSHA website www.osha.gov

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Disclaimer

• This information has been developed by an OSHA Compliance Assistance Specialist and is intended to assist employers, workers, and others as they strive to improve workplace health and safety. While we attempt to thoroughly address specific topics [or hazards], it is not possible to include discussion of everything necessary to ensure a healthy and safe working environment in a presentation of this nature. Thus, this information must be understood as a tool for addressing workplace hazards, rather than an exhaustive statement of an employer’s legal obligations, which are defined by statute, regulations, and standards. Likewise, to the extent that this information references practices or procedures that may enhance health or safety, but which are not required by a statute, regulation, or standard, it cannot, and does not, create additional legal obligations. Finally, over time, OSHA may modify rules and interpretations in light of new technology, information, or circumstances; to keep apprised of such developments, or to review information on a wide range of occupational safety and health topics, you can visit OSHA’s website at www.osha.gov.