Most contractors don’t know they can be cited for an OSHA violation even if their own employee is not exposed to a hazard. The construction industry is no stranger to jobsites with employees from multiple employers working on a common project. While such arrangements are necessary to competently and timely complete a project, the presence of multiple employers—and their employees—on the same jobsite can result in an increased risk of safety hazards and may expose employers to OSHA citations, even where their own employees are not exposed to a hazard.

Those in the construction industry are likely familiar with OSHA and its Multi-Employer Citation Policy (CPL 02-00-124) (the policy), first issued in 1999. The policy sets forth OSHA’s approach to jobsites where more than one employer could be cited for the same hazardous condition that violates an OSHA standard. In short, the policy states that even an employer with employees that are not being exposed to a hazard can be issued a citation if the employer created the hazardous condition, is responsible for correcting a hazardous condition or has general supervisory authority over the jobsite.

The policy is a strong enforcement tool for OSHA, especially in the construction industry. But being generally aware of the policy is not enough to avoid receiving OSHA citations. Construction employers should consider how the policy impacts their jobsite, in addition to regularly revisiting practices and contracts to ensure they are fulfilling their obligations under the OSHA standards.

Basics of the Policy

At a jobsite with more than one employer (e.g., general contractors, subcontractors), the policy places each employer into categories for purposes of analyzing each employer’s responsibilities under OSHA standards and, if necessary, issuing citations for violations of those standards. Employers fall into one or more of the following four categories.

Creating Employer
An employer that caused a hazardous condition that violates an OSHA standard. For example, an employer who fails to install or inspect fall-protection barriers that expose either its own or other employees at the worksite to a hazard could be a creating employer.

Exposing Employer
An employer whose own employees are exposed to the hazard can be an exposing employer if it:

1. knew about the hazardous condition or failed to exercise reasonable diligence to discover the condition; and
2. failed to take steps to protect its own employees from the condition.

If an exposing employer does not correct the condition (if it has the authority to do so) or ask the creating or controlling employer to correct the condition; inform its employees of the hazard; and take reasonable alternative protective measures (up to and including removing its employees from the jobsite), then it may receive a citation.

Correcting Employer
An employer responsible for correcting a hazard. Typically, the correcting employer is the party responsible for installing or maintaining safety and health equipment or devices, such as erecting guardrails or fall protection barriers on a jobsite.

Controlling Employer
An employer that has general supervisory authority over the jobsite, including the power to correct safety and health violations or require others to correct them, and fails to exercise reasonable care. A general contractor that hires and has full contract authority over a carpenter subcontractor can be a controlling employer. Reasonable care can typically be demonstrated through periodic inspections and implementation of a system for correcting hazardous conditions and enforcing a safety and health compliance program.

When categorizing employers on a jobsite, OSHA will conduct a robust inspection process. Typically, this includes separately communicating with each employer regarding its employees and their job responsibilities, as well as the contractual relationships with all other employers at the jobsite.

After categorizing the employers at a jobsite, OSHA evaluates whether each employer has met its respective obligations as a creating, exposing, correcting and/or controlling employer. These determinations follow a similar analysis as a typical OSHA citation evaluation, except they are done in the context of each employer’s categorization.

General Contractor-Specific Considerations

OSHA’s application of the policy to controlling employers has been especially controversial, and general contractors can be particularly impacted on construction jobsites. While controlling employers may have overall authority at a jobsite, often they do not have the specialized expertise of the subcontractors they use, including the ability to recognize and address all the hazards that subcontractors may face and need to correct. At other times, there might not be a clear, written plan as to which employer has responsibility for specified safety obligations, in which case responsibilities can slip through the cracks.

In a decision issued in May of this year, the Occupational Safety and Health Review Commission (the commission) upheld OSHA’s ability to cite general contractors as controlling employers under the policy. In this case, Secretary of Labor v. Summit Contracting Group, Inc., (OSHRC Docket No. 18-1451) the general contractor was cited following an inspection of a construction jobsite for a multi-family residential complex. The OSHA inspector found the employees of three subcontractors doing framing work were not protected from falls, a known hazardous condition.

OSHA issued citations to all three subcontractors. It also issued a citation, including a serious citation, to the general contractor as a controlling employer that failed to exercise reasonable care and correct safety violations or require others to do so. Ultimately, the commission vacated the serious citation because OSHA failed to show that, given the general contractor’s “secondary safety role at the worksite,” its practices were inadequate.

However, the commission still found the general contractor responsible as a controlling employer under the policy because, under the contract designating it as the general contractor, it was “solely responsible for, and ha[d] control over, construction means, methods, techniques, sequences and procedures,” was required to “evaluate the jobsite safety thereof,” and was “fully and solely responsible for jobsite safety of such means, methods, techniques, sequences and procedures.” Also, in the contracts with subcontractors, the relevant subcontractor was only to “commence work as directed by [the general contractor]” and the general contractor could suspend the subcontractor’s work “at any time and without cause.”

General contractors should be aware of the responsibility that comes with control and authority over other employers at a jobsite, especially with respect to safety and health matters. They should also carefully consider the language in their contracts to ensure that responsibility for safety and health matters is clearly set forth, especially if it will rest with a party other than the general contractor. However, simply delegating responsibility for safety and health matters to a subcontractor is unlikely to eliminate a general contractor’s responsibility to take reasonable measures to confirm its subcontractors are fulfilling their contractual obligations to comply with all safety and health requirements for the protection of their employees, as well as the other employees, at the jobsite.