Workplace safety should always be a major concern for employees and workers alike. The Bureau of Labor Statistics maintains a database of workplace injury statistics, but notes the most common “Fatal Four” causes of injuries as:
- Being struck by objects
- Being caught in or between objects
Along with the risk of injury is the risk of corporate liability. To illustrate, one of the highest workplace injury jury verdicts amounted to $64.5 million in a case where a prefab building fell on a construction worker.
It is the mission of the Occupational Safety & Health Administration (OSHA) to assure safe working conditions by performing inspections and taking enforcement actions. However, this can get complicated when a jobsite has multiple employers, as is typically the case on construction sites. So how does OSHA issue citations in these cases? Enter OSHA's Multi-Employer Citation Policy.
What Does the Policy Require?
In 1999, OSHA issued a directive covering workplace violations involving multiple employers. The directive was a continuation of basic policy, but with greater clarification for cases where more than one employer could be citable for hazardous conditions that violate OSHA standards.
To determine whether an employer should be cited, the policy requires an OSHA inspector to first categorize the employers involved and then to decide whether they have met their respective obligations. The four categories, which are not mutually exclusive, are listed below:
- Creating employer
- Exposing employer
- Correcting employer
- Controlling employer
Creating employers are those who are responsible for actually causing a hazardous condition in violation of OSHA standards. They are citable for their violations even where the only employees affected are those of a separate employer.
Exposing employers are those whose own employees were exposed to the hazard. If the violation was created by another employer, the exposing employer can be cited if it:
- Knew of the hazardous condition or failed to exercise reasonable diligence to discover it, and
- Failed to take steps consistent with its authority to protect its employees.
If the exposing employer has authority to correct the hazard, it must do so. If it lacks the authority to correct the hazard, it can be cited if it fails to ask the creating or controlling employer to correct the hazard, fails to inform its employees of the hazard, or fails to take reasonable alternative protective measures. Where there is imminent danger, an exposing employer is citable for failing to remove employees from the job to avoid the hazard.
Correcting employers are those who are on the same work site as the exposing employer and who are responsible for correcting a hazard. They are usually employers responsible for installing and maintaining safety equipment or devices. The correcting employer must:
- Exercise reasonable care in discovering and preventing violations, and
- Meet its obligations to correct the hazard.
Controlling employers are employers who have general supervisory authority over the work site, such as a general contractor on a construction site. These employers have the power to correct safety and health violations or to require others to correct them. Control can be established by contract or by the exercise of control and practice. A controlling employer must exercise reasonable care to prevent and detect OSHA violations. However, this duty is less than what is required of an employer protecting its own employees. A controlling employer also doesn't need to inspect for hazards as frequently as the employer it hired and is also not held to the same knowledge of applicable standards as that employer.
In determining whether a controlling employer has performed adequate inspections and met its standard of reasonable care, OSHA looks to the following factors:
- Scale of the project
- Nature and pace of work
- Frequency of inspections
- Knowledge of the safety history/practices and expertise of the employer it hired (if a controlling employer is aware of a hired employer's past non-compliance, more frequent inspections may be required)
- Presence of an effective system for correcting hazards and enforcing other employers' compliance
Note that a creating, correcting, or controlling employer will often also be an exposing employer. Exposing, creating, and controlling employers can also be correcting employers if they are authorized to correct the hazard. So, if you represent construction companies, contractors, or companies that hire contractors, it's important to advise them of their overlapping duties under OSHA's Multi-Employer Citation Policy. Learn more about OSHA requirements, construction law and corporate liability at FindLaw's section on Corporate Counsel.