Multi-employer work sites are a fact of life in the construction industry. They are complex landscapes for liability and compliance with Occupational Safety and Health Administration (OSHA) regulations. Determining who is responsible for hazards impacting various workers can be a challenge.
OSHA can issue citations to one or more employers on multi-employer work sites. They do so through the agency’s multi-employer citation policy, which categorizes who is responsible for what hazards.
OSHA identifies four categories of roles on multi-employer work sites: creating, exposing, correcting and controlling. Individual employers can fit into multiple categories.
Creating employers are those that create a hazardous condition that violates an OSHA regulation. These employers should have a system in place to identify and correct hazards. If the employer does not have the authority to fix a problem, they must inform the controlling contractor of the hazard and keep workers away from the hazardous condition until corrected. To accomplish this, their responsibilities include implementing protective measures, making frequent and regular inspections and conducting safety briefings. Additionally, they must coordinate regular safety meetings with specialty subcontractors to protect employees from hazards on the work site.
Exposing employers are those who are exposed to a hazard on a multi-employer work site. Their responsibilities are the same as the creating contractors; however, only exposing employers can be cited for general-duty-clause violations on multi-employer work sites.
If an exposing employer causes an infraction, usually they are cited as the creating employer, as well. In the event that another employer created the violation, the exposing employer will be issued a citation only if they failed to protect their employees. If an exposing employer does not have the authority to correct a hazard, they can still be cited if they did not take reasonable protective and preventative measures.
Correcting employers fix identified hazards on multi-employer work sites. They are also required to abide by the previously mentioned conditions as creating employers. However, correcting employers can be cited if they don’t take reasonable care in preventing and discovering violations.
Controlling employers are the contractors with the overall supervisory authority of a project, typically the general contractor of the work site. They carry a bigger share of the responsibility than other employers on the work site.
OSHA holds the controlling employer responsible for preventing and detecting hazardous conditions. The controlling employer must do so with “reasonable care,” meaning periodic inspections must be conducted, a hazard-correction system and an effective enforcement and compliance program should be in place. However, they are not responsible for inspecting hazards as often or to be as knowledgeable of the specific regulations as hired subcontractors.
OSHA looks at a number of factors when determining how often and thoroughly a controlling contractor should conduct inspections. These include the work’s nature and pace and the contractor’s awareness of the safety history and practices of the hired subcontractors. For example, a history of incidents or noncompliance with OSHA standards will result in an expectation of more thorough and frequent inspections. The controlling employer can be cited for exposing any and all workers to a hazard.
After OSHA categorizes an employer, it determines whether an employer met its obligations in accordance with the regulation in the event an incident or inspection occurs. If OSHA deems the employer did not meet its obligations, it may cite the employer.
Multi-employer requirements are also applicable to the project owner, engineers, architects, subcontractors and other consultants whenever their actions represent the controlling employer. Additionally, if a general contractor addresses a subcontractor’s employees as their own, they are acting as the subcontractor’s safety person. As a result, a general contractor should interact with the subcontractor’s foreman, supervisor or safety representative only.
An additional legal challenge occurs when a general contractor trains a subcontractor’s employees as it would train its own employees. Doing so makes the general contractor liable for these employees.
Therefore, it is important that a general contractor gets involved with the individual safety of its subcontractor’s employees. The GC should be involved with overall project safety only by providing basic orientation on site-specific hazards. A general contractor should leave it up to a subcontractor to determine its own means, methods and safety practices of its specialty trade.