OSHA’s Multi-Employer Citation Policy

“They are not my employees.”. While the need for employees from different companies may be necessary to perform the various tasks required by a project, the presence of multiple employers, and their employees, on the same worksite can result in an increased risk of safety hazards. Recovery efforts in Florida will likely require hiring outside contractors to aid with salvage, demolition, and rebuilding. Similarly, dock repair or replacement will likely have contractors at the marina. Many facilities may have tenants on site providing support services such as engine repair, canvas, detailing, and so on. An employer’s responsibilities may not be limited to only their employees.

Companies working with outside contractors or tenants should be aware of OSHA’s ability to issue citations for workplace safety violations. What many companies may not know, however, is that OSHA’s ability to cite employers is not limited to workplace conditions that are unsafe only to that employer’s direct employees. Rather, OSHA also has the ability to cite an employer, and often does issue such citations, for conditions that could result in injury or death to another company’s employees.

The policy which provides OSHA with this citation ability is CPL 02-00-124 and is called the Multi-Employer Citation Policy (the “Policy”). Under the language of the Policy, OSHA has the ability to cite multiple employers for violations of the Occupational Safety and Health Act for the same hazardous workplace condition. Critically, responsibilities under the Policy do not depend on the employer’s job title but are determined by the employer’s role.

Before an employer can be cited, however, OSHA must engage in a two-step process to first categorize the employers on the worksite and then determine whether they have met their obligations. The four categories of employer are:
creating employer;
exposing employer;
correcting employer; and
controlling employer.

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Creating Employer
A creating employer is defined by the Policy as “the employer that caused a hazardous condition that violates an OSHA standard.” A creating employer can be cited for a violation even when the affected employees are only those of another employer on the worksite.

Exposing Employer
An exposing employer is defined by the Policy as “[a]n employer whose own employees are exposed to the hazard.” In addition, employers should be aware that if the violation at issue was created by another employer, the exposing employer can still be cited if the exposing employer (1) knew of the hazardous condition or failed to exercise reasonable diligence to discover it; and (2) failed to take steps consistent with its authority to protect its employees. The Policy provides that, if an exposing employer has the authority to correct the hazard, it must take such action. In addition, even if the exposing employer lacks the authority to correct the hazard, it can still be cited for failure to ask the creating or controlling employer (explained below) to correct the hazard, failure to inform the employees of the hazard, or failure to take reasonable alternative protective measures. In addition, where danger is imminent, an exposing employer can be cited for failure to remove employees from the job to correct the hazard.

Correcting Employer
A correcting employer is defined by the Policy as “[a]n employer who is engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard.” The correcting employer is usually the company responsible for installing and/or maintaining safety equipment and devices. When performing services on a worksite, the correcting employer is required to (1) exercise reasonable care in discovering and preventing violations; and (2) meet its obligations to correct the hazard.

Controlling Employer
A controlling employer is defined by the Policy as “[a]n employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.” It is important for employers to understand that “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 worksite. The controlling employer’s duty of reasonable care, however, is less than for an employer required to protect is own employees. This means that a controlling employer is not typically required to inspect for hazards as frequently, or to have the same level of knowledge of the controlling standards, as the employer it has hired.

There are various factors which impact how often a controlling employer must inspect the worksite to meet its standard of reasonable care, including:
the scale of the project;
the nature and pace of the work; and
the controlling employer’s knowledge of the safety history and practices of the other employers working on its site.

Inspections are more frequently required if the controlling employer knows that the other employer has a history of non-compliance. Similarly, inspections may be needed with more frequency at the beginning of a project if the controlling employer has never worked with the hired employer before and does not know the employer’s compliance history. Factors to consider when determining whether a controlling employer has exercised reasonable care include conducting periodic inspections, implementing an effective system for promptly correcting hazards, and enforcing the other employer’s compliance with safety and health requirements.

Employers Can Have Multiple Roles
The Policy makes clear that an employer’s analysis of its safety obligations should not stop upon a determination that one category applies. For example, the Policy provides that a creating, correcting, or controlling employer will often also be an exposing employer. Likewise, the Policy states that exposing, creating and controlling employers can also be categorized as correcting employers if they are authorized to correct the hazard. In short, when evaluating an employer’s obligations on a multi-employer project, it is a best practice to compare the requirements for each category with the facts surrounding the employer’s role on the worksite.

Understanding The Key Takeaways
The Policy broadens the scope of potential liability for employers who control multi-employer worksites.

An employer can have multiple roles under the Policy (i.e., a controlling employer could also be an exposing employer depending on the circumstances). In addition, the actions required by an employer vary based on which category applies. As a result, companies performing tasks on multi-employer worksites should be aware of their potential responsibilities under each standard to ensure a safe workplace.

General contractors who do not control hazardous conditions at a multi-employer worksite can be cited by OSHA even if those conditions do not directly affect their employers.

Documentation regarding an employer’s safety efforts is key. When an OSHA inspection results in a potential citation, proof of strong safety training/programs, thorough and frequent audits, valid and correct permits, and appropriate worksite inspections can be helpful to an employer’s defense strategy.

From dock builders and electricians to service techs and marine surveyors, marinas and boatyards can play host to a number of employers. Understanding legal obligations under OSHA’s Multi-Employer Citation Policy and taking reasonable care to prevent and detect violations on site, will help employers prepare for an OSHA inspection.