Most construction sites contain teams of general contractors and various subcontractors, providing a perfect illustration of a “multi-employer worksite” – and a perfect storm of potential workplace safety compliance issues. Multi-employer worksites complicate regulatory compliance and may make it more difficult for employers to defend OSHA inspections and for their workers to identify hazardous conditions. However, there are practical steps contractors can take now to minimize the chances of safety problems or legal liability, and best practices to employ.
OSHA’s Multi-Employer Citation Policy
OSHA’s Advisory Committee on Construction Safety and Health defines the term “multi-employer worksite” as a “worksite at which two or more entities are performing tasks that will contribute to the completion of a common project.” The Advisory Committee also says that “the entities may or may not be related contractually” in order to be deemed part of a multi-employer site,” and that “the contractual relationship may or may not be in writing.”
This definition is of vital importance because, under OSHA’s multi-employer Citation Policy, more than one employer at a worksite can be cited for a hazardous condition that violates an OSHA standard. OSHA breaks employers down into four categories; the Creating Employer, the Exposing Employer; the Controlling Employer; and the Correcting Employer. To be cited under OSHA’s multi-employer policy, an employer only needs to fall within one of these four categories:
- A Creating Employer is one that caused a hazardous condition that violates an OSHA standard. A creating employer can be cited in instances where none of its employees are actually exposed to the hazard but employees of other employers are exposed.
- An Exposing Employer is one whose own employees are exposed to the hazard. Employee exposure is established if an OSHA compliance officer witnesses or observes an employee exposed to a hazardous condition during work. The exposing employer is citable if it knew of the hazard or failed to exercise due diligence to discover it and protect employees. The exposing employer can still be cited, even if lacking the authority to correct the hazard, if it fails to: ask the creating and/or controlling employer to correct the hazard; inform its employees of the hazard; and take reasonable protective measures.
- Employers with supervisory authority over the jobsite and that have the ability to correct OSHA violations or to make others correct the hazards are considered the Controlling Employer. This status can be established by contract or by practicing control over a worksite.
- Finally, a Correcting Employer is responsible for correcting onsite hazards. They may be the employer given the responsibility of providing and maintaining safety equipment or devices for a worksite. A correcting employer must prove it used reasonable care to identify and resolve hazards in the workplace to avoid a citation.
OSHA follows a two-step process when an issue is identified on a jobsite with more than one employer. First, the agency determines if the employer fits into one of the four categories. Then, it determines if the employer took the proper actions to meet its safety obligations. As noted above, the agency may end up issuing citations to numerous employers for the same hazard. Therefore, compliance with OSHA safety standards should be a primary concern for all employers and employees at a worksite. Employers should work together to ensure that each understands its role in safety on the worksite.
Best Practices for Multi-Employer Worksites
There are some proactive steps to minimize the chances of a multi-employer safety citation being found on one a jobsite. The general contractor should ensure that subcontractors have proper safety policies and would be well-served by inquiring into subcontractors’ history of incidents and safety violations. While each employer should have its own safety policies, the general contractor should develop a site-specific safety plan.
Such a plan is useful to provide guidance on the safety responsibilities for each entity on the jobsite, as well as providing information regarding the communication necessary for a multi-employer worksite. Also, a site-wide safety plan should establish clear hazard reporting procedures.
Importance of the Opening Conference
If a contractor finds itself in the crosshairs of an inspection at a multi-employer worksite, there are steps to take to ensure the best outcome. The opening conference is a crucial tool for employers facing an inspection to ensure their rights during the inspection are protected. All employers on the worksite should be present for this conference. If OSHA fails to conduct an opening conference with a particular employer, in fact, due process generally prevents the agency from prosecuting citations against that employer.
Contractors can utilize the opening conference to negotiate a narrowing of the scope of the inspection. Ask questions about the purpose of and probable cause that led to the inspection, and establish ground rules with OSHA about how the inspection will occur.
Walk-Around Rights During OSHA Inspections
Contractors have a right to accompany an OSHA compliance safety and health officer (CSHO) during an inspection of the workplace. Section 8(e) of the OSH Act provides that “a representative of the employer shall be given an opportunity to accompany the Secretary’s representative during the physical inspection.” In an inspection involving a multi-employer site—such as a construction site—a CSHO might present their credentials to the general contractor and attempt to conduct an inspection of the entire site, even though there may be multiple subcontractors working at the site. This likely violates the rights of the subcontractors.
For example, OSHA conducted an inspection of a worksite after it received a complaint of an alleged safety hazard. The general contractor consents to the OSHA inspection, and during the inspection, the CSHO sees a possible fall protection violation related to a subcontractor at the worksite. While the contractor’s rights may have been violated, no violation will be found if there is “substantial compliance” by OSHA with Section 8(e) of the OSH Act, and the court will not exclude subsequent citations that may be issued unless the employer can show actual prejudice.
Therefore, it is important that each employer at a worksite understand this possibility and communicate with other employers at the worksite about an OSHA visit. Having a process in place to alert the other employers who could be affected by the inspection will allow each exercise their rights.
Multi-employer worksites can complicate OSHA compliance and agency inspections. Contractors can protect their rights, however, by having a plan in place to prepare for such an inspection ahead of time, and develop some strategies for working with the other employers on the worksite should an issue arise.
