(1) The employer did not create the hazard;

(2) The employer did not have the responsibility or the authority to have the hazard corrected;

(3) The employer did not have the ability to correct or remove the hazard; (4) The employer can demonstrate that the creating, the controlling and/or the correcting employers, as appropriate, have been specifically notified of the hazards to which his/her employees are exposed;

(5) The employer has instructed his/her employees to recognize the hazard and, where necessary, informed them how to avoid the dangers associated with it.

(a) Where feasible, an exposing employer must have taken appropriate alternative means of protecting employees from the hazard.

(b) When extreme circumstances justify it, the exposing employer shall have removed his/her employees from the job to avoid citation.

(1) The exposing employer must protect its employees from the hazard if the employer has the authority to correct the hazard, it is citable if it failed to exercise reasonable care to correct it. The reasonable care standard for the exposing employer is very high; it must frequently and carefully inspect to prevent hazards and must correct hazards found promptly. (2) If the exposing employer lacks the authority to correct the hazard, it is citable if it fails to take all feasible measures to: minimize its employees' exposure to the hazard and ask the controlling employer or manager to get the hazard corrected. 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.

Example: A contractor hoisting materials onto a floor damages perimeter guardrails. None of its own employees are exposed to the hazard, but employees of other contractors are exposed.

Analysis: The creating employer is citable if it failed to take immediate steps to keep all employees, including those of other employees, away from the hazard and to notify the controlling employer or manager of the hazard. If it had the authority to repair the guardrails, it is also citable if it failed to promptly correct the hazard.

Example: A carpentry contractor is hired to erect and maintain guardrails throughout a project. None of its own employees are exposed to the hazard but the employees are exposed where guardrails are missing or damaged.

Analysis: The correcting employer is citable if it failed to exercise reasonable care in its efforts to install and repair guardrails and to discover missing or damaged guardrails.

Note: Exposing, creating, and controlling employer or manager can also be correcting employer if they are authorized to correct the hazard.

(1) By a Specific Contract Right to Control Safety To be a controlling employer or manager it must be able to require other employers to prevent or correct a violation. The source of this ability is contract authority. This can take the form of a specific contract right to require an employer to adhere to safety and health requirements.

Example: A general contractor or construction manager holds a contract with an owner to build a project and to provide all construction services including administration of all subcontracts along with the specific contract responsibility to exercise reasonable care to prevent, discover or correct a hazard.

Analysis: The reasonable care standard is still higher with each employer on the job which may expose its workers to a hazard. If there is a contractual relationship with a provision to identify, prevent or order corrective action and reasonable care to do so cannot be established a violation may be issued to the general contractor or construction manager as an exposing contractor.

(2) By a Combination of Other Right Where there is no specific contract right to coordinate safety or where the contract says the employer does NOT have such a right, an employer may still be a controlling contractor or manager. Its ability to control or manage safety in this circumstance can result from a combination of contractual rights that, together, give it broad responsibilities at the site involving almost all aspects of the job including aspects that affect safety.

Example: A large project with several prime contractors contracted to build different phases of the job could each become controlling contractors in the process of completing their part of the project. A prime contractor in charge of steel erection coordinates their erection sequence with the prime in charge of concrete placement but has no specific rights to coordinate safety of the prime contractor placing the concrete.

Analysis: In construction, some of the contractual rights that typically combine to result in this authority include: the right to set schedules and construction sequencing, require contract specifications to be met, negotiate with trades, decisions that affect safety. Where the combination of rights results in the ability of the employer to direct actions relating to safety, the employer is considered a controlling employer or manager. Where this combination of rights does not exist, then citations will not be issued other than for exposure to employees.

(3) Responsibility to Control Work Without Contractual Authority An employer can still be a controlling contractor or manager if, in actual practice it exercises control and/or management authority between subcontractors at the site. However when authority to control and/ or manage work between subcontractors is unclear, before issuing a citation the CSHO will consult the Regional Solicitor's office.

Example: A construction manager does not hold the contracts for construction work and provides oversight of the project but holds no authority to direct work. Site inspections are done periodically to determine progress of the work with all reports presented to the property owner who holds all construction contracts. All observed safety violations are reported to the property owner who is the sole entity empowered to affect corrective action. The construction manager is not the controlling employer in this example and will not be cited other than for exposed employees.

Analysis: The construction manager did not have any contractual authority over the exposing employer and did not have the power to order corrective action. The reasonable care standard was met to inspect and provide recommendations to the appropriate authority. No citation would be given.

(4) Reasonable Care Knowledge, identification, authority, and expertise to take corrective action.

(a) A controlling employer or manager will be cited if it failed to exercise reasonable care in preventing or correcting a violation.

(b) The reasonable care standard for a controlling employer or manager is not as high as it is for exposing, creating, or correcting employers.

(i) This means the controlling employer or manager is not normally required to inspect as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the subcontractor,

(ii) Factors that affect how frequently and closely a controlling employer or manager must inspect to meet its standard of reasonable care include the scale of the project, the nature of the work, how much the contractor knows about both the safety history and safety practices of the subcontractor and about the subcontractor's level of expertise.

Examples: A general contractor hires an electrical subcontractor. The electrical subcontractor installs an electrical panel box exposed to the weather and implements an assured equipment grounding conductor program, as required under the contract. It fails to connect a grounding wire inside the box to one of the outlets. This incomplete ground is not apparent from a visual inspection. The general contractor inspects the site twice a week. It saw the panel box but did not test the outlets to determine if they were all grounded because the electrical contractor represents that it is doing all the required tests on all receptacles. The general contractor knows that the subcontractor has a good safety program from previous experience. It also knows that the subcontractor is familiar with the applicable safety requirements and is technically competent. It has asked the subcontractor if the electrical equipment is OK for use and was assured that it is.

Analysis: The general contractor exercised reasonable care. It has determined that the subcontractor has technical expertise, safety knowledge and used safe work practices. It also makes some basic inquiries into the safety of the electrical equipment. Under these circumstances it was not obligated to test the outlets itself to determine if they were all grounded. It would not be citable for the grounding violation.

(5) A checklist for examining reasonable care:

(a) Did the coordinating entity have knowledge of the hazard or violation of the creating or exposing employer?
(b) Is there evidence of an effective safety and health program in place for this site?
(c) Is there a system in place for identifying and correcting hazards for this site?
(d) Is there any indication of regular jobsite safety meetings and or safety training?
(e) Does the creating or exposing employer have a previous history of similar violations, and are steps being taken to identify and correct these situations?