OSHA's Multi-Employer Work Site Policy: Who's on First?

It categorizes employers without regard to the contractual relationships among them. The lines of liability do not necessarily follow subcontract relationships.

• By Michael C. Wright, Moniqua Suits, Thomas M. Green, Esq.
• Jul 01, 2006

YOU have been selected by the owner of a state university to serve as general contractor for a multi-story, multi-complex project site with numerous subcontractors. As the general contractor, you have contracted subcontractors to perform various specialized work activities, who have in turn hired subcontractors to assist them with their portions of this project. Also, you have hired additional subcontractors to assist you in directing and inspecting your subcontractors for various work activities.

Given the nature of the project, various vendors and visitors will be present on the project site during normal business hours. Since the project's start, three accidents have occurred on the site: the university's inspector was killed on the job from a fall that occurred during an in-house project pre-inspection to prepare for the state fire marshal's final inspection; a mechanical/electrical subcontractor was injured from a fall after he climbed from an aerial lift that could not reach an area due to construction debris; and a vendor's representative who arrived after hours to repair a piece of lifting equipment fell through an unmarked hole in the concrete floor that was covered by insulation board and Visqueen, leaving him paralyzed from the neck down.

How do you determine the sequence of events, who is responsible for preventing these incidents, who failed their safety duties, and who are not compliant with OSHA requirements?

Although the names have been changed, this scenario is a realistic representation of construction projects. Sorting through the maze of events, fact patterns, contract duties, and project team members' responsibilities when an accident occurs is similar to listening to the Abbott and Costello routine "Who's on First?" for the first time. If you're unfamiliar with the definitions established in the OSHA Multi-Employer Policy, untangling "Who's on First?" may seem tame by comparison. The Multi-Employer Policy identifies the types of employers present on a construction project site; determines the scope of safety duties and responsibilities for each employer type; and defines the reasonable care they are responsible for providing to ensure the safety of their employees.

The policy categorizes employers into four primary groups--Controlling, Creating, Exposing, and Correcting--and outlines the safety responsibilities of these employer types. The employer type denotes the safety duties and responsibilities employers have on a construction project, which include following the required safety practices for their work activities; assuming the responsibility of the safety of their employees; and not creating safety hazards for the employees of other subcontractors. Companies (owners, contractors, engineers, architects, and vendors) involved in a multi-employer construction work site can be designated and cited for more than one employer type. Employers also must be aware of the OSHA-defined reasonable care factors they are required to provide for each project site.

Understanding the Multi-Employer Policy will help you and your project team to recognize the different types of employers and their safety duties and responsibilities and also how to pre-plan the safety of your employees for each workplace activity in order to proactively prevent injuries and deaths.

The primary challenge to understanding how this policy relates to you as a contractor is to accurately identify what type of employer you are and the safety duties and responsibilities you have accepted (knowingly or unknowingly) by signing the project contract. It is important to remember that your contract and workplace activities can categorize you as one or more employer type depending on your actions on a project site. If you are the General Contractor/Controlling Employer yet directly correct the safety behavior or actions of your subcontractor's employee, you may establish yourself and your company as his safety supervisor--and if he is injured or killed, you become entangled in the safety duties and responsibilities of that incident.

If you are the Controlling Employer and require your employees and/or the employees of your subcontractors to perform work in a hazardous area, you also may become the Exposing Employer, liable and responsible for the safety duties and responsibilities to either correct the hazard or to make certain the hazard is corrected.

OSHA Directives CPL 02-00-124 and CPL 2-0.124--Multi-Employer Citation Policy (Dec. 10, 1999), Multi-employer Worksite Policy, states: "On multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA Standard." The following two-step process determines when one or more employers should be cited: 1. Establish if the employer falls into one of these categories: Controlling, Exposing, Creating and/or Correcting. 2. Establish the employer's obligations for the category(ies) in which they are grouped.

OSHA's criteria to establish the safety duty of contractors to exercise reasonable care in detecting and preventing safety hazards throughout the project site are based on:

1. Project scale.
2. The type and speed of the construction because it affects the frequency of how often the number and type of hazards change.
3. How often inspection should occur.
4. The contractor's trade knowledge and/or expertise.

Employer Categories
Controlling Employers
Contractors with general supervisory authority over the work site and with the power to correct safety and health violations or to require others to correct the hazards are Controlling Employers. This control is established by contract or by practicing control of the project site. (An example of practicing control is a smaller general contractor hiring a larger, nationally known specialty subcontractor who has a majority role in the construction of the site. The specialty subcontractor has a professional safety staff, safety inspectors, and established safety protocol and procedures of how they execute their work tasks. The general contractor's lack of a safety protocol and the higher level of the specialty subcontractor's safety protocol define the latter as the Controlling Employer.)

The Controlling Employer must take reasonable care to prevent and detect violations on the project site; however, its responsibility is less than what is required of a subcontractor to protect its own employees. The Controlling Employer is not normally required to inspect for hazards as frequently as or to have the same trade expertise or knowledge of the applicable standards as the subcontractor it has hired. The Controlling Employer's frequent and regular care responsibilities rely upon the scale of the project; work scope; how much it knows about the safety history and practices of the subcontractors it controls; and how much it knows about the subcontractor's level of expertise. If the Controlling Employer knows that its subcontractors have a record of non-compliance, then more frequent and regular inspections are required. Individual specialty subcontractors have a higher degree of responsibility to exercise reasonable care to protect their employees than the controlling contractor.

Controlling Employer's Reasonable Care Responsibilities

• Create a site-specific safety program
• Enforce the safety policy for the project site
• Provide general supervision of project activity and safety
• Fulfill budget and schedule requirements
• Exercise authority to correct safety hazards
• Exercise authority to require other specialty employers to correct safety hazards
• Conduct and document frequent and regular inspections of subcontractor site-specific work (frequent and regular inspections and/or safety meetings are established by the controlling contractor's knowledge of the subcontractors' level of experience, expertise, and knowledge of their safety history and practices)
• Conduct and document frequent and regular safety meetings with subcontractors

Creating Employer
A subcontractor who causes a hazardous condition that violates an OSHA regulation is categorized as the Creating Employer. This employer is citable even if the employees exposed to the hazard are other subcontractors' employees.

Example: Subcontractor A covers a hole with black Visqueen but does not barricade the area and mark it as a hole. Subcontractor B's employee falls through the unmarked Visqueen and goes through a fall. Subcontractor A would be considered the Creating Employer.

Creating Employer's Reasonable Care Responsibilities

• Frequent and regular inspections and safety meetings (usually daily) and safety meetings (usually weekly) must be conducted by specialty subcontractors on a consistent and regular basis to protect their employees from safety hazards on the project site.
• Provide an effective system to enforce the prompt correction of hazards, both recognized and foreseeable
• If the employer does not have the authority to fix a problem, it must inform the controlling contractor/employer of the hazard and take the appropriate steps to keep all employees away from the hazardous condition until it is fixed.

Exposing Employer
Subcontractors whose employees are exposed to hazards on the project site are defined as the Exposing Employer. If the exposing employer also created the violation, typically it will be cited as the creating employer. If the violation was created by another employer, the exposing employer will be cited if it neglected to protect its employees. When the exposing employer does not have the authority to correct the hazard, it is citable if it did not take reasonable protective measures for its employees.

Example: Subcontractor A requires its employees to work at heights without adequate fall protection equipment, proper training, or adequate anchorage locations. Its employee hooks his fall protection system to a sprinkler pipe, which fails as he falls to a lower level.

Exposing Employer's Reasonable Care Responsibilities

• Frequent and regular inspections and safety meetings (usually daily) and safety meetings (usually weekly) must be conducted by specialty subcontractors on a consistent and regular basis to protect their employees from safety hazards on the project site.
• Provide an effective system to enforce the prompt correction of hazards, both recognized and foreseeable
• If the employer does not have the authority to fix a problem, it must inform the controlling contractor/employer of the hazard and take the appropriate steps to keep all employees away from the hazardous condition until it is fixed.

Correcting Employer
Subcontractors on the same work site and responsible for correcting a hazard are classified as Correcting Employers. They are responsible for taking reasonable care measures to prevent and discover violations and to meet their obligations to correct the hazard.

Example: Subcontractor A is responsible for installing fall protection warning lines on the story where its own employees and employees of other subcontractors are working at height and exposed to the edge. The warning lines of plastic flagging were installed at 32 inches instead of 42 inches. Not only is Subcontractor A responsible for raising the height of the warning lines, but also it must use warning line material that meets regulatory requirements.

Correcting Employer's Reasonable Care Responsibilities

• Frequent and regular inspections and safety meetings (usually daily) and safety meetings (usually weekly) must be conducted by specialty subcontractors on a consistent and regular basis to protect their employees from safety hazards on the project site.
• Provide an effective system to enforce the prompt correction of hazards, both recognized and foreseeable.
• If the employer does not have the authority to fix a problem, it must inform the controlling contractor/employer of the hazard and take the appropriate steps to keep all employees away from the hazardous condition until it is fixed.

The criteria for these categories of employers are without regard to the contractual relationships among them. The lines of liability do not necessarily follow subcontract relationships.

Legal Issues
When the general contractor directs a subcontractor's employees as its own, it is acting as the subcontractor's safety person. As a result of communicating directly with its subcontractor's employees versus directly with the subcontractor's management (foreman, supervisor, safety representative), the general contractor may assume the additional safety duties of its subcontractor's employees. Also, if the general contractor trains a subcontractor's employees as it would train its own employees (versus an orientation training on site-specific hazards), then the general contractor may assume additional safety duties and liabilities as if these were its own employees.

It is critical that the general contractor does not involve itself with the individual safety of its subcontractor's employees and is involved with overall project safety only. The general contractor may assume the safety duties and responsibilities as the subcontractor's employer if it directs or controls the means or methods of its subcontractor's construction workplace activities. Instead, the general contractor must leave it up to the subcontractor to determine its own means and methods of its specialty trade.

These requirements are also applicable to the project owner, engineers, architects, subcontractors, and other consultants if their actions and direction reflect those of the Controlling Employer. Depending on how controlling their actions are, the potential for them to assume safety duties as their subcontractor's employer is a distinct possibility.

It is important to understand that multi-employer liabilities arise in both regulatory and civil arenas, and that any contractor meeting the definition of a Creating, Exposing, Correcting, or Controlling Employer also may be subject to a lawsuit for damages sustained by an injured worker. Some state worker's compensation systems may bar direct claims by an injured employee against his or her own employer; in other states, tort remedies may also be available. For example, the state of Ohio allows an employee to sue his employer of a so-called employer intentional tort. Such a claim arises where the employer knew or should have known of a dangerous condition, process, instrumentality, or procedure that was substantially certain to cause injury and required the employee to work in the environment. Fyffe v. Jeno's (1991), 59 Ohio St.3d 115.

Almost by definition, the violation of fall protection standards, confined space standards, and similar safety rules will give rise to this type of liability. This may leave the employer responsible for medical expenses, lost wages, pain, suffering, mental and emotional distress, and in egregious cases, punitive damages and attorneys' fees. Keep in mind there is no right of set-off for benefits paid pursuant to worker's compensation and that insurance policies may or may not apply. Some stop-gap coverages provide only a limited defense fund and no indemnity for this type of claim.

Pre-planning
The highest contributing factor to fall-related injuries and fatalities is the lack of pre-planning. Pre-planning a project facilitates a well-organized project with adequate safety policies and procedures in place prior to the start of work. Most safety hazards can be eliminated or controlled by thoroughly pre-planning project activities.

Identify your safety duties and responsibilities, develop a site-specific safety plan, conduct a job hazard analysis, provide adequate safety training for each work activity before the project starts, map out project staging, and have a practiced rescue plan in place. Contractors are experienced at pre-planning the materials, staff, timing and equipment needed for a project; however, statistics indicating that falls account for the greatest number of fatalities in the construction industry point to the lack of pre-planning for fall protection.

• Pre-plan work site fall protection with safety, supervisors, and skilled trades
• Incorporate fall protection requirements into contract documents
• Verify that adequate fall protection training has occurred--certificates with the type of training, date, and number of hours
• Develop site-specific fall protection safety plans and procedures
• Require a fall protection safety plan and procedures for each work activity
• Verify that fall protection safety meetings occur on a frequent and regular basis
• Verify that fall protection equipment is inspected correctly and on a frequent and regular basis.

Training
Visit OSHA's Fatal Facts section at www.osha.gov and conduct your own private poll on the number of responses that indicate "lack of training" as one of the most common causes of fall-related accidents. It is important that employees complete adequate fall protection training that provides them with the knowledge and confidence to perform their fall protection roles and responsibilities for work at heights.

What About Imminent Danger?
The feedback we receive regarding this topic and its relationship to the liability contractors assume for accidents and fatalities on project sites ranges from outraged ("Under any circumstance it is everyone's responsibility to immediately respond to an individual's safety") to puzzled ("We did not know this policy pertained to us as the general contractor or our subs").

Regarding "it is everyone's responsibility," it is important to use a little proactive caution to prevent you and your company from becoming liable for another subcontractor's employee. As a general contractor or subcontractor, it is more proactive and advisable to have a policy in place that requires your supervisors to contact the supervisor or safety director of another subcontractor's employee who is demonstrating unsafe behavior or work practices, which is called peer-to-peer communication. Rather than assume the responsibility of supervising another contractor's employee, you want to make certain its supervisor or safety director is made aware of the unsafe work actions. If, however, that employee is in imminent danger, then our role of a safety steward kicks in, and you will want to stop him and immediately notify his employer of what occurred. It will not prevent you from being caught up in liability issues; however, it is a personal decision that we all need to be able to live with.

The purpose of the Multi-Employer Policy isn't to create a hands-off reaction to unsafe work behaviors, but rather, to inform employers of the legal liabilities they can assume on a project site and to require them to pre-plan a site-specific safety plan for their employees. If each contractor has a site-specific safety plan for employees to follow that involves a project safety audit, then all will be much more aware of the hazards they may be exposed to and the safety plan to follow in order to eliminate or control dangerous work conditions.

A Case Study
A general contractor is hired by the owner to build a 12-story concrete office building and, in turn, hires multiple subcontractors to work for him on the project.

Subcontractor A is contracted to install all of the concrete formwork. During the installation of the concrete formwork for each floor, its workers remove some existing guardrails to bring in the concrete formwork they failed to re-install after the forms were set in place. Subcontractor B, another specialty reinforcement contractor, is hired to install reinforcing steel (rebar) on top of the concrete formwork. Employees of both subcontractors must work in the same area to prepare to place the concrete for the office building floor slab. While working, both subcontractors' employees are exposed to the unprotected edges of the working surface because Subcontractor A did not reinstall the guardrail system.

How would you categorize the General Contractor, Subcontractor A, and Subcontractor B using OSHA's Multi-Employer Policy?

General Contractor: _________________________________
(Controlling, Correcting, and Exposing Employer)

Subcontractor A: _____________________________________
(Creating, Exposing, and Correcting Employer)

Subcontractor B: _____________________________________
(Exposing and Correcting Employer)

The general contractor's safety duty is to maintain a safe project site for its employees and the subcontractors' employees and to make certain that its subcontractors do not create safety hazards for other subcontractors throughout the site. OSHA requires the general contractor, as its safety duty, to perform frequent and regular site inspections to verify its subcontractors are not creating additional safety hazards for other subcontractors' employees. Also, the general contractor has a safety duty to provide general safety requirements for the work site and its subcontractors to follow.

Given the parameters of the requirements for frequent and regular inspections, the general contractor is responsible for making certain the guardrail system is reinstalled in a timely manner to prevent employees of subcontractors A and B from being exposed to the hazard and experiencing serious injury or death.

Subcontractor A is the Creating Employer because it did not reinstall the guardrail system before Subcontractor B's employees were exposed to the safety hazard of an unprotected edge. As the Creating Employer, A is responsible for correcting the safety hazard in a timely manner. Subcontractor B is the Exposing Employer because it exposed its employees to an unsafe work environment. If it does not have the authority to stop work, its responsibility is to inform the Controlling Employer of the hazard, to inform its employees, and to take protective measures to guard its employees against exposure to the safety hazard.

Each contractor is required by OSHA to provide a safe workplace for its employees and not to create safety hazards for the employees of other subcontractors. OSHA requires each contractor to provide adequate safety training before the work activity begins; to perform a job safety analysis of the workplace prior to employees starting their work; to provide a written company safety manual and policy; and to perform a site safety inspection that could involve stopping work until the safety hazard is eliminated or controlled. Note: All three contractors can also be cited as the Exposing Contractor if their employees are working in the unprotected edge area of the floor.

This article appeared in the July 2006 issue of Occupational Health & Safety.

This article originally appeared in the July 2006 issue of Occupational Health & Safety.