Navigating the Multi-Employer Citation Policy

Who is responsible for safety on a multi-employer worksite? When are you responsible for hazards affecting another employer’s workers? What responsibility do other employers have for the safety of your workers? Multi-employer worksites, not surprisingly, complicate labor law compliance and raise vexing questions. The short answer is that all employers have obligations to their own employees and to the employees of other contractors when it comes to safety. OSHA can and will issue citations to one or more employers at a multi-employer worksite through its multi-employer citation policy. The policy outlines the agency’s process for determining responsibility when one or more employer on a worksite might be citable under OSHA regulations.

OSHA will first categorize each of the relevant employers based on their respective roles: creating, exposing, correcting or controlling. A single employer may fall into more than one category. Once OSHA categorizes an employer, the agency will then evaluate whether the employer met obligations under OSHA requirements. If OSHA determines that the employer did not meet its obligations, the employer will be cited. If the employer has met its obligations, it will not be cited.

Creating Employers

Creating employers are those whose workers create a hazardous condition that violates an OSHA regulation. Employers that create hazards are citable even if the only employees exposed are those of other employers at the site. However, if the creating employer took reasonable measures to prevent employee exposure to the hazard, then the creating employer is not citable. A creating, correcting or controlling employer will often also be an exposing employer. Consider whether the employer is an exposing employer before evaluating its status as a creating, correcting or controlling employer.

Exposing Employers

Exposing employers are those whose workers who are exposed to the hazard. Only the exposing employer can be cited under the General Duty Clause, which is understood as a “catch-all” safety regulation that requires employers provide employees with a workplace free of hazards. If the exposing employer created the hazard, then it is citable as a creating employer. If the violation was created by another employer, then the exposing employer can be cited if it knew or should have known of the hazard, possessed the authority to correct the hazard and failed to do so. However, if the exposing employer has knowledge of the hazard but does not have the authority to abate the hazard, then it is citable only if it fails to ask the creating and/or controlling employer to correct the hazard, inform employees of the hazard or take reasonable alternative protective measures. Take note, however, that in fatally hazardous situations in which imminent danger is present, an exposing employer will always be expected to remove its employees from the worksite and is citable if it fails to do so.

Correcting Employers

Correcting employers are those who are engaged in a common undertaking on the same worksite as the exposing employer, and responsible for correcting the hazard. Generally, this is the employer who is given the responsibility of installing or maintaining particular health or safety equipment or devices. The correcting employer can be cited if it does not exercise reasonable care in preventing and discovering violations and does not meet its obligations to correct hazards even if none of its workers were exposed to the hazard.

Controlling Employers

Finally, controlling employers are those with general supervisory authority over the worksite, including the power to correct violations or require others to correct them. These obligations generally (but not always) originate from contractual agreements, are required by law or are established through the exercise of control in practice. When established by contract, the responsibilities given to the employer must be broad enough that its contractual authority necessarily involves safety — of particular importance are the authority to resolve disputes between subcontractors, set schedules, and determine construction sequencing because they are likely to affect safety. Note, however, that an employer can never completely contract away its safety obligations with regard to the portion of work it actually performs.

OSHA requires controlling employers exercise “reasonable care” in preventing and detecting violations on the worksite, which generally requires periodic inspections of the worksite, implementation of an effective system for correcting hazards and effective enforcement of a sitewide safety and health compliance program. This standard is still considered lower than what is required of an employer protecting its own employees. Controlling employers are not required to inspect for hazards as frequently or have the same level of knowledge of the applicable standards as the employers it has hired.

Factors that affect how frequently and closely a controlling employer must inspect to meet its standard of reasonable care include the scale of the project; the nature and pace of the work, including the frequency with which the number of hazards change as the work progresses; how much the controlling employer knows both about safety history and safety practices of the employer it controls and about the employer’s level of expertise. More frequent inspections will be needed if the controlling employer knows that the other employer has a history of non-compliance. More frequent inspections may also be needed, especially at the beginning of the project, if the controlling employer had never before worked with this other employer and does not know its compliance history.

On the other hand, less frequent inspections may be appropriate where the controlling employer sees strong indications that the other employer has implemented effective safety and health efforts. The most important indicator of an effective safety and health effort by the other employer is a consistently high level of compliance. Less frequent inspections may also be appropriate where an effective, graded system of enforcement for non-compliance with safety and health requirements has been implemented coupled with regular jobsite safety meetings and safety training.

Ultimately employers should have a solid understanding of their contractual duties with regard to safety and ability to abate hazards on each project. Doing so will inform the employer of the steps it is obligated to take to avoid citation in the event of a violative hazard on a multi-employer worksite.

Authors’ note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

About the author: Casey Verville is an attorney at Cotney – Attorneys & Consultants and practices in various areas of construction law. For more information, contact the author at (866) 303-5868 or visit cotneycl.com.

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