Multi-Employer Worksites-Contractor Requirements Worksite Safety

The Occupational Safety and Health Administration (OSHA) issued a Compliance
Directive to OSHA Inspectors on September 26, 1994 with regards to evaluating the
parties responsible for jobsite hazards when more than one contractor is working on a site.
The Compliance Directive was issued in the Field Inspection Reference Manual (FIRM),
the Manual used by OSHA Compliance Inspectors to evaluate worksites. The Compliance
Directive (CPL) is Instruction CPL 2-0.124 and is called Multi-Employer Citation Policy.

The purpose of the Multi Employer Worksite Directive is to clarify OSHA’s position in
dealing with situations with multiple employers on a common worksite, which is often the
case in construction. This new directive gives clear and more detailed guidance than
earlier attempts in explaining when a citation should be issued and who should receive
citations for violation the OSHA standards.

The Compliance Directive explains that in a Multi-Employer Worksite one or more
employers’ may be cited for a hazardous condition(s) which violates an OSHA standard.
To determine which employer is citable OSHA will follow a two-step process:

Step 1: The first step is to determine if whether the Employer is the:

Creating,
Exposing,
Correcting or the
Controlling Employer.

Step 2: If an employer falls into one of these categories; it has obligations as it relates to
the OSHA laws. The OSHA Inspector will determine if the employer actions were
sufficient to meet the required obligations. The employer has a federal duty to exercise
reasonable care to detect and prevent safety hazards and a duty to protect employees from
such hazards.

The Creating Employer is the employer that caused (created) a hazardous condition
which violates the OSHA law. If an employer creates a hazardous condition, that employer
is citable even if the employees exposed are another contractors employees. The creating
employer has a duty to correct the unsafe condition for his employees and for the safety of
other contractor employees.

Example:

An employer operates a factory and hires a machinery repair company to come into the
factory and perform work on a machine. In the manufacturing process the factory uses
chemicals which are sitting in large open vats, which give off fumes of toxic vapors.
Assume the machinery repair contractor asked the employer to cover the chemical vats or
to provide appropriate ventilation to reduce the level of airborne concentrations. The
factory is the Creating and Controlling Employer and the factory employer is citable if it
does not take corrective action to reduce or eliminate the airborne concentrations. It
becomes clear that the Creating Employer has a duty to identify and correct unsafe
conditions not only for his workforce but for the workers of other employers.
The Exposing Employer is an employer whose own employees are exposed to the hazard.
The exposing employer is citable if it knew or should have known that the hazardous
condition existed and failed to take corrective action to eliminate the hazard and therefore
protect the employees. In the above example, the machinery repair company is the
exposing employer.

Example:

Rebar protrudes vertically 4 feet as a retaining wall in constructed at a building site. An
electrician using an access ramp to reach a higher elevation sees the uncovered rebar and
ask the General Contractor to install rebar cap protectors to prevent impalement in the case
of a fall. The GC refuses to cover the rebar so the electrician instructs his men to use a
different route to access the next level. In this case, the GC is the Controlling Employer as
he had the general supervisory authority over the worksite including the power to correct
of have other correct the unsafe condition. The electrical sub-contractor is the Exposing
Employer up until he gave instructions to use an alternative route to prevent impalement.

The rebar installers are the Creating Employer as they installed the rebar and created a
hazard that should have been recognized and corrected. Because the electrician instructed
his men to use a different route his action will be deemed a good faith reasonable attempt
to protect workers and prevent injuries and therefore would not be cited and fined by
OSHA. Also, because the electrician gave the GC notice (knowledge of a hazard) and
because he has a duty to identify and eliminate worksite hazards, he may be cited. The
rebar installer will also be cited for creating the hazard and not eliminating the hazard as
may have been required by the sub-contractor agreement.

The Correcting Employer is the employer is one who is engaged on a common worksite
as the exposing employer and who is responsible for correcting the hazard. This usually
occurs where an employer is given the responsibility of installing and/or maintaining
particular safety and health system, equipment or device.

Example:

Assume a significant amount of hot work, such as welding and cutting, is being performed
on a site. Because the General Contractor wants to keep rods burning he sub-contracts a

Fire Watch to a contractor. Under contract the fire watch personnel are to clear the general
area of combustible debris, provide visual observation of the general welding area and
apply fire suppression if a fire develops. Assume the Fire Watcher decides to go for a coffee break during the welding process and fire causes injury to the welder. The sub- contracted Fire Watch Employer would be citable as his employee failed to provide a level of safety that was contracted for and had his worker exercised reasonable diligence in the
performance of his duties the injury may have been avoided.

The Controlling Employer is the employer who has the general supervisory authority
over the worksite including the power to correct safety and health violations itself or
require others to correct or remove hazards. This appears to define the role of the General
Contractor. Such control authority can be established by contract or in the absence of a
contract or by the stated practice of verbal instructions to sub-contractors, such as in a
jobsite project safety meeting. The extent of safety measures that a controlling employer
must implement to satisfy his duty of reasonable care is less than what is required by an
employer that created the hazard.

In these cases OSHA will look at other factors such as:

►the scale of the project,
►the nature of the work,
►how much the controlling employer knows about the safety history of the Subs it
controls.

Conclusion:

OSHA has developed this system of classifying employers to help OSHA compliance
officers focus citation efforts on the appropriate party. Employers are dissected and placed
into groups for the purpose of identifying and evaluating who is responsible for what
safety activity. Understand that employers may operate in the mode of several capacities at
once. For example an employer could be a Creating, Exposing and a Correcting employer
all at once. Only exposing employers may be cited under the General Duty Clause which
is the clause that provides a catch all in the event that a safety hazard exists but there is not
standard on the books to cite. That would mean that for Creating, Correcting and
Controlling Employers actual OSHA standards have to be violated for citations to be
issued which is usually not a high barrier to overcome.
OSHA is looking for employers on Multi-Employer Worksites to take reasonable care in
the identification and elimination of worksite hazards to prevent injuries to workers.

The hazard control techniques to accomplish this are:

1) Explain sub-contractor safety responsibilities in contracts
2) Hold and in document job site safety meetings with contractors.
3) Conduct worksite inspections to identify hazards and give creating or
controlling contractors written notice to correct unsafe conditions.
4) Provide a graduated system of enforcement and follow-up of identified hazards to
document a progressive attempt to get the situation resolved and to appropriately place
the accountability on the employer ultimately responsible for the exposure.

Review Commission Eliminates OSHA’s ability to Cite Controlling Employers
OSHA will no longer be able to cite general contractors for safety violations at
construction sites with multiple contractors, under a ruling by the Occupational Safety and
Health Review Commission (OSHRC No. 03-1622). In vacating a citation issued to a
general contractor, OSHRC chair W. Scott Railton and Commissioner Horace Thompson
agreed that OSHA’s multiemployer worksite policy is invalid as applied to a “controlling
employer” which has neither created the cited safety hazard nor exposed employees to it.
In his opinion, Railton noted that under the plain terms of Section 1910.12(a), an employer
may be cited only for a violation of construction standards involving “his employees”.
Commissioner Thomasina Rogers wrote a dissenting opinion, calling the decision reversal
of “30 years of Commission precedent.” Rogers added that the action will “deprive the
Secretary of a very important tool to hold accountable those often in the best position to
ensure safety on construction worksites.”

The multiemployer worksite policy is described in OSHA’s Field Inspection Reference
Manual (FIRM) which provides guidance for the agency’s field officers. The FIRM states
that employers may be cited in four situations: if they expose their employees to a safety
hazard; if they create a hazard; if they control the worksite; or if they have the ability to
correct or abate the hazard. The case before the commission involved a “controlling”
employer situation. The contractor was citied in 2003 for a scaffolding violation
committed by a subcontractor at one of its worksites.

According to Railton, OSHA’s inconsistent application of the policy was a factor in the
decision. “The checkered history of the multiemployer doctrine as expressed in the
Secretary’s ever-changing compliance guidelines…taken in contrast with a regulation
which has not been amended since 1971, results in the latter trumping whatever reliance
the Commission can place on the varying nature of the policy.”

Update:

Eighth Circuit Overrules OSHARC in Summit Multi-Employer Case
Mar 3, 2009 12:30 PM, by Stephen C. Yohay

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.”
The Court of Appeals for the Eighth Circuit did suggest, however, that OSHA’s overall multi-employer
policy may need to go through rule making.

Summit Contractors Inc. was the general contractor for the construction of a college dormitory in Little
Rock, Ark. Summit subcontracted the exterior brick masonry work to All Phase Construction Inc. In June
2003, an OSHA compliance officer observed All Phase employees working on scaffolds over 10 feet
above the ground without fall protection or guardrails in violation of 29 C.F.R. § 1926.451(g)(1)(vii).
None of Summit’s employees were exposed to any hazard created by the scaffold violation, but OSHA nonetheless cited Summit for this violation based on the “controlling employer” aspect of OSHA’S so-
called multi-employer citation policy.

Summit contested the citation, arguing that OSHA’s regulation, 29 C.F.R. § 1910.12(a), requires an
employer engaged in “construction work” to protect only its own employees, not those of any
subcontractor. That regulation applies only to “construction work,” not “general industry” (operations and
maintenance). Therefore, according to Summit, § 1910.12(a) precluded citations to a controlling
employer whose own employees were not exposed to a hazardous condition created by another contractor
on the jobsite.

The administrative law judge upheld the citation, but in a 2-1 decision, the OSHRC reversed and held that
§ 1910.12(a) requires each employer to protect only its own employees.
On Feb. 26, in a 2-1 decision, a three-judge panel of the United States Court of Appeals for the Eighth
Circuit in St. Louis reversed OSHRC and held that §1910.12(a) does not preclude the citation to Summit,
even though the general contractor had no employees exposed to the unguarded scaffold. Essentially, the
court deferred to OSHA on the ground that the citation reflected one of several reasonable interpretations
of the ambiguously worded regulation (Solis v. Summit Contractors Inc., 2009 U.S. App. LEXIS 3755
(8th Cir. 2009)).

The vigorous dissenting opinion adopted the view that the regulation is clear, and that is does not allow
citations to employers whose employees are not exposed to the cited condition.
The decision, while important for construction work, does not resolve the long-standing debate over
OSHA’s multi-employer citation policy. The decision is narrow, it is not unanimous, and it only
addressed the meaning of 29 C.F.R. § 1910.12(a). The court expressly did not evaluate the overall policy,
and even suggested that OSHA might need to conduct rulemaking on the policy as a predicate to its
continued use in enforcement.

There also is a hint that the basic question whether Section 5(a)(2) of the act permits multi-employer
citations for violations of standards could be open for further litigation. The court also stated that to be
subject to a multi-employer citation, an employer must have employees at the cited worksite, a point that could become significant in the current rulemaking on the proposed cranes and derricks standard for
construction.