Part I of this two-part article examined the safety statistics and what the compliance data reveals with respect to hazards exposure and problem areas on multi-employer worksites. Part II provides a brief explanation of the U.S. Occupational Safety and Health Administration (OSHA) Multi-employer Citation Policy and how an employer could be liable for a workplace event even if it did not directly affect its own employees or work activities, then provides recommendations on reasonable measures that can be taken to avoid citations and penalties.
Multi-Employer Worksite Citation Policy
OSHA’s “Multi-employer Citation Policy” was issued via Directive Number CPL 2-0.124 in 1999. Under this policy, OSHA categorizes employers at a multi-employer worksite as the Creating Employer, the Exposing Employer, the Correcting Employer and the Controlling Employer. It also accounts for employers that may functionally perform more than one of these roles. On these worksites, more than one employer may be citable for a hazardous condition that violates an OSHA standard.
Note: Excerpts from Directive Number CPL 2-0.124 are reproduced verbatim below to preserve intent. Readers are advised to refer to that document and obtain a more comprehensive understanding of the policy and its enforcement.
The Creating Employer is the employer who caused a hazardous condition that violates an OSHA standard. Such an employer is citable even if the only employees exposed are those of other employers at the site.
The Exposing Employer is one whose own employees are exposed to the hazard. Employee exposure is established if an OSHA Compliance Safety and Health Officer (CSHO) witnesses, observes or monitors exposure of an employee to the hazardous or suspected hazardous condition during work. If the Exposing Employer created the violation, it is citable for the violation as a creating employer. If the violation was created by another employer, the exposing employer is citable if it knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition and failed to take steps consistent with its authority to protect is employees. If an exposing employer has the authority to correct the hazard, it must do so. If the exposing employer lacks the authority to correct the hazard, it is citable if it fails to do each of the following:
- ask the creating and/or controlling employer to correct the hazard;
- inform its employees of the hazard; and
- take reasonable alternative protective measures. In extreme circumstances (e.g., imminent danger situations), the exposing employer is citable for failing to remove its employees from the job to avoid the hazard.
The Correcting Employer is an employer who is engaged in a common undertaking on the same worksite as the exposing employer and is responsible for correcting a hazard. This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices. The Correcting Employer must exercise reasonable care in preventing and discovering violations and meet its obligations of correcting the hazard.
The Controlling Employer is an employer who has general supervisory authority over the worksite and the power to correct safety and health violations itself or require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice. A controlling employer must exercise reasonable care to prevent and detect violations on the site. The extent of the measures that a controlling employer must implement to satisfy this duty of reasonable care is less than what is required of an employer with respect to protecting its own employees. This means that the controlling employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired.
Control may be established by Contract, a combination of other Contract rights, or without explicit contractual authority. And architects and engineers may be liable as Controlling Employers, as discussed below.
a. Control Established by Contract. In this case, the employer has a specific contract right to control safety. To be a controlling employer, the employer must itself be able to prevent or correct a violation or to require another employer to prevent or correct the violation. One source of this ability is explicit contract authority. This can take the form of a specific contract right to require another employer to adhere to safety and health requirements and to correct violations the controlling employer discovers.
b. Control Established by a Combination of Other Contract Rights. Where there is no explicit contract provision granting the right to control safety, or where the contract says the employer does not have such a right, an employer may still be a controlling employer. The ability of an employer to control safety in this circumstance can result from a combination of contractual rights that, together, give it broad responsibility at the site involving almost all aspects of the job. Its responsibility is broad enough so that its contractual authority necessarily involves safety. The authority to resolve disputes between subcontractors, set schedules and determine construction sequencing are particularly significant because they are likely to affect safety.
c. Architects and Engineers. Architects, engineers and other entities are controlling employers only if the breadth of their involvement in a construction project is sufficient to bring them within the parameters discussed above.
d. Control Without Explicit Contractual Authority. Even where an employer has no explicit contract rights with respect to safety, an employer can still be a controlling employer if, in actual practice, it exercises broad control over subcontractors at the site.
A two-step process is followed by OSHA to determine whether more than one employer is to be cited:
- determining whether the employer is a creating, exposing, correcting or controlling employer;
- determining if the employer’s actions were sufficient to meet those obligations.
The extent of the actions required of employers varies based on which category applies. Note that the extent of the measures that a controlling employer must take to satisfy its duty to exercise reasonable care to prevent and detect violations is less than what is required of an employer with respect to protecting its own employees.
Recommendations for safe work on multi-employer construction sites
The following recommendations are provided for the guidance of project managers, site supervisors and personnel tasked with safety responsibilities. They are by no means a comprehensive listing and may not apply to all work situations. Each contractor has its own specific and unique situations and circumstances which may require additional measures.
- Plan early and thoroughly.
- Ensure health and safety language in the Master Service Agreement/Contract, Job Orders, Recurring Orders etc. addresses multi-employer worksite responsibilities and accountabilities (e.g., “Contractor shall disclose health and safety hazards associated with its products and services, communicate those hazards to work parties that may be affected while Contractor’s work is being executed, and take reasonable measures to eliminate the hazard and minimize exposure to personnel on location”).
- Prequalify contractors and select those with a compatible safety culture and acceptable performance and compliance history. Emphasize safety over cost in analyzing contract bids.
- Implement a Simultaneous Operations Plan (SIMOP) for the worksite that:
- Identifies a Person in Charge (PIC) or how the PIC will be selected in case of disagreement,
- includes a risk assessment of each contracted service, hazard impact zones (how one party’s activities affect the other) and required mitigations, and
- outlines the incident and emergency response procedure. Sites employing more than 10 workers must have an Emergency Action Plan conforming to 29 CFR 1910.138 (a).
- Develop a Health, Safety and Environmental Master Plan for the project that serves as an umbrella document under which individual contractor-submitted safety plans reside. Ensure that project safety performance objectives, responsibilities, communications, common safe work systems and practices (e.g. Permit to Work, lockout-tag out, incident reporting, behavior-based hazard observation and reporting), training expectations, worker participation, hazard prevention and control, and performance monitoring and measurement are defined and communicated to contractors for incorporation within their own safety plans. Consider developing ‘bridging documents’ with self-managed contractors to ensure compatibility with health and safety policies, programs, and procedures, and to identify which party’s policies, etc. will take primacy in the event of conflict.
- Convene a meeting with the leadership of all parties – contractors and subcontractors – prior to commencement of onsite activities and ensure they have a clear understanding of the safety management plan, roles and responsibilities for hazard prevention and how OSHA’s multi-employer citation policy applies to their scope.
- Hold leadership engagements with each contractor and subcontractor (to the extent practical) to review their understanding of and preparation for life-critical work activities. These include high risk activities, such as work at heights, work inside permit required confined spaces, working on energized (or that could become energized) systems and equipment, trenching and excavation, activities over water, critical crane lifts, activities involving special hazards and licensing (e.g. radiography, blasting using explosives), and any other work covered by the Permit to Work system.
- Provide a safety orientation to all personnel prior to permitting first access to the worksite. Safety orientations include an overview of activities, potential hazard exposures, site safety rules, incident reporting, emergency action plan, STOP WORK authority, training requirements, drug and alcohol requirements, expectation to participate in safety programs and employee rights and duties under OSHA.
- Plan and schedule regular safety meetings with all parties to review performance, address issues and concerns and obtain feedback for continuous improvement of the safety plan and programs. Contractors and subcontractors should be required to conduct daily/pre-job safety meetings with their crews and attend the project owner’s daily/weekly meeting with site leaders.
- Implement site safety tours or hazard hunts by project managers and leaders and a program of planned safety inspections so that issues are addressed when identified.
- Monitor the implementation of safety plans and measure safety performance on an ongoing basis. When performance dips are noted, make immediate and effective interventions to correct the situation and hold those contractors accountable. Likewise, commend contractors that deliver good safety performance.
- Ensure each party, as minimum, meets employer’s responsibilities under OSHA.
The construction industry is synonymous with multi-employer worksites. It is therefore vital that each contractor employer on the worksite is committed to safety and has a clear understanding of exposures and liabilities under OSHA’s Multi-employer Worksite Policy. A project safety plan that is properly implemented, has management backing, and provides for worker involvement in safety programs and initiatives will help assure that desired safety performance results are achieved and the project is completed to scope, on time and within budget.
