Safety violations on a construction site or multi-employer work site often present a dilemma regarding responsibility. Who pays? When it comes to the Occupational Safety and Health Administration (OSHA), the answer is everyone. Consider the following scenario:
An electrical contractor is hired to install and maintain all wiring on a multistory construction site. Regular inspections are to be performed by all contractors. Subcontractors are required to report problems to the general contractor. The electrical contractor receives notices from the general and makes corrections as needed. As work progresses, the electrical contractor determines less time is needed on site. He feels notification of problems will be provided by the general contractor or other subcontractors and terminates his regular inspections. Several weeks later, during an OSHA inspection, it is discovered that a ground fault circuit being used by the employees of a painting contractor is not functioning properly. The circuit was installed correctly, but was damaged during operations. Neither the painting contractor nor the general contractor ever tested the integrity of the line. Who should be cited?
To answer the question, the role of each contractor must be assessed. OSHA has identified four entities on a job site that may be cited. They are the exposing, creating, correcting and controlling employers. The exposing employer is one “whose own employees are exposed to the hazard.” The correcting employer is one “who is engaged in a common undertaking, on the same work site, as the exposing employer and is responsible for correcting a hazard.” The creating employer is one who “caused a hazardous condition that violates an OSHA standard.” The controlling employer is one “who has general supervisory authority over the work site, including the power to correct safety and health violations itself or require others to correct them.” A single contractor may be in multiple roles.
In the scenario described, the exposing employers are easily identified. The painting contractor allowed his employees to work with the faulty line. Since it is clearly the responsibility of all contractors to perform regular inspections and no testing had been done, he will be cited. To avoid citations, an exposing employer who does not have the authority or ability to correct a hazard must ask the creating and/or controlling employer to correct the hazard, make employees aware of the hazard and provide alternate protection. The painting contractor failed to notify anyone and had the option of using a portable ground-fault circuit interrupter or avoiding use of that circuit altogether.
The cause of the damage in the line was not identified. Therefore, it is difficult to identify the creating employer. If the damage were a result of faulty installation, the electrical contractor would be held accountable. If the damage were the result of another contractor modifying the circuit, they could be cited.
In this case, the category that finds the electrical contractor would be the correcting employer. The agreement was for maintenance, as well installation. The fact that he discontinued inspections demonstrates a lack of “reasonable care.” It is not sufficient to rely on others. A correcting employer “must exercise reasonable care in preventing and discovering hazards.”
With respect to the general contractor’s responsibility, OSHA takes a broad view of the term “controlling.” As identified in the definition, the entity has some authority which may affect safety. It can be direct authority over safety explicitly stated in the contract. It may be implied authority. A general contractor—or other entity involved in the project who has the responsibility for resolution of subcontractor disputes, scheduling and establishing of construction sequencing—may be considered a controlling contractor with regard to safety as well.
It is easy to see our general contractor had direct control over safety. Even if it were not his responsibility, he could still be cited. This concept can also present a problem to architects and engineers. For example, an architect who controls construction sequencing that may affect safety can be cited. All entities must exercise “reasonable care.”
This situation was hypothetical. All responses are subjective. A controlling employer is not required to inspect for hazards as frequently or to have knowledge of hazards for a trade as the employer it has hired. In the case above, the general may not have been cited. The required frequency of inspections or proof of intent to perform additional inspections may be argued for the electrical contractor as well. It is remotely possible he may avoid a citation.
However, the purpose of presenting OSHA’s multi-employer citation criteria was to generate thought on responsibility and accountability. When a hazardous condition arises on the job site, take action. Share these thoughts on OSHA’s perspective of responsibility with others on the job site to prompt action on their part to improve job site safety. Consult www.osha.gov for more information. EC
O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 or email@example.com.