United States: OSHA's Multi-Employer Citation Policy: What Employers On Construction Sites Need To Know

Multi-employer worksites are a frequent occurrence in the construction industry as employees from various companies often occupy the same site while a project is being completed. While the need for employees from different companies may be necessary to perform the various tasks required by a project, the presence of multiple employers, and their employees, on the same worksite can result in an increased risk of safety hazards. 

Companies performing construction work should be, and generally are, aware of OSHA's ability to issue citations for workplace safety violations. What many companies may not know, however, is that OSHA's ability to cite employers is not limited to workplace conditions that are unsafe only to that employer's direct employees. Rather, OSHA also has the ability to cite an employer, and often does issue such citations, for conditions that could result in injury or death to another company's employees. 

The policy which provides OSHA with this citation ability is CPL 02-00-124 and is called the Multi-Employer Citation Policy (the "Policy"). Under the language of the Policy, OSHA has the ability to cite multiple employers for violations of the Occupational Safety and Health Act for the same hazardous workplace condition. Critically, responsibilities under the Policy do not depend on the employer's job title but are determined by the employer's role. 

Before an employer can be cited, however, OSHA must engage in a two-step process to first categorize the employers on the worksite and then determine whether they have met their obligations. The four categories of employer are:

  • creating employer;
  • exposing employer;
  • correcting employer; and 
  • controlling employer. 

Creating Employer

A creating employer is defined by the Policy as "the employer that caused a hazardous condition that violates an OSHA standard." A creating employer can be cited for a violation even when the affected employees are only those of another employer on the worksite.

Exposing Employer

An exposing employer is defined by the Policy as "[a]n employer whose own employees are exposed to the hazard." In addition, employers should be aware that if the violation at issue was created by another employer, the exposing employer can still be cited if the exposing employer (1) knew of the hazardous condition or failed to exercise reasonable diligence to discover it; and (2) failed to take steps consistent with its authority to protect is employees. The Policy provides that, if an exposing employer has the authority the correct the hazard, it must take such action. In addition, even if the exposing employer lacks the authority to correct the hazard, it can still be cited for failure to ask the creating or controlling employer (explained below) to correct the hazard, failure to inform the employees of the hazard, or failure to take reasonable alternative protective measures. In addition, where danger is imminent, an exposing employer can be cited for failure to remove employees from the job to correct the hazard. 

Correcting Employer

A correcting employer is defined by the Policy as "[a]n employer who is engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard." The correcting employer is usually the company responsible for installing and/or maintaining safety equipment and devices. When performing services on a worksite, the correcting employer is required to (1) exercise reasonable care in discovering and preventing violations; and (2) meet its obligations to correct the hazard.

Controlling Employer

A controlling employer is defined by the Policy as "[a]n employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them." It is important for employers to understand that "control" can be established by contract, or in the absence of explicit contractual provisions, by the exercise of control in practice. 

A controlling employer must exercise "reasonable care" to prevent and detect violations on the worksite. The controlling employer's duty of reasonable care, however, is less than for an employer required to protect is own employees. This means that a controlling employer is not typically required to inspect for hazards as frequently, or to have the same level of knowledge of the controlling standards, as the employer it has hired. 

There are various factors which impact how often a controlling employer must inspect the worksite to meet its standard of reasonable care, including:

  • the scale of the project; 
  • the nature and pace of the work; and 
  • the controlling employer's knowledge of the safety history and practices of the other employers working on its site. 

Inspections are more frequently required if the controlling employer knows that the other employer has a history of non-compliance. Similarly, inspections may be needed with more frequency at the beginning of a project if the controlling employer has never worked with the hired employer before and does not know the employer's compliance history. Factors to consider when determining whether a controlling employer has exercised reasonable care include conducting periodic inspections, implementing an effective system for promptly correcting hazards, and enforcing the other employer's compliance with safety and health requirements. 

Employers Can Have Multiple Roles

The Policy makes clear that an employer's analysis of its safety obligations should not stop upon a determination that one category applies. For example, the Policy provides that a creating, correcting, or controlling employer will often also be an exposing employer. Likewise, the Policy states that exposing, creating and controlling employers can also be categorized as correcting employers if they are authorized to correct the hazard. In short, when evaluating an employer's obligations on a multi-employer project, it is a best practice to compare the requirements for each category with the facts surrounding the employer's role on the worksite.

Understanding the Key Takeaways

  • The Policy broadens the scope of potential liability for employers who control multi-employer worksites. 
  • An employer can have multiple roles under the Policy (i.e., a controlling employer could also be an exposing employer depending on the circumstances). In addition, the actions required by an employer vary based on which category applies. As a result, companies performing tasks on multi-employer worksites should be aware of their potential responsibilities under each standard to ensure a safe workplace.
  • General contractors who do not control hazardous conditions at a multi-employer worksite can be cited by OSHA even if those conditions do not directly affect their employers.
  • Documentation regarding an employer's safety efforts is key. When an OSHA inspection results in a potential citation, proof of strong safety training/programs, thorough and frequent audits, valid and correct permits, and appropriate worksite inspections can be helpful to an employer's defense strategy.

From general contractors and electricians to crane operators and surveyors, construction sites can play host to a number of employers. Understanding legal obligations under OSHA's Multi-Employer Citation Policy and taking reasonable care to prevent and detect violations on site, will help contractors prepare for an OSHA inspection.

Originally published by Construction Executive.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions