20 Duck Hollow Lane
Elkton, MD 21921
To: Mike Buchet - NSC- Bob K - Dupont
From: Ingo Zeise
Number of pages including this one: 5
subject: Multi Employer
Response requested?: No
Please call 410-398-2264 if all pages are not received.
Mike - My comment - please submit.
Bob K - If you have not seen - you should read and comment.
Ingo Zeise [Signature]
Advisory Committee On Construction Safety and Health
Co-chaired Member Felipe Devore, Danny Evans
C.6. Multi-Employer Worksite: A worksite at which two or more entities are performing tasks that will contribute to the completion of a common project. The entities may or may not be related contractually. The contractual relationship may or may not be in writing. On multi-employer worksites, both in construction and industry, more than one employer may be citable for the same condition. The following employers are potentially citable.
- The Exposing Employer: An employer whose own employees are exposed to the hazard.
- 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. [ "promptly" is circled and an arrow drawn directly before "correct"]
- 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 employee's 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.
- The Creating Employer: The employer who created 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 ["employees" is circled and an arrow is drawn to "employers" which is handwritten], 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.
- The Correcting Employer: An employer who is responsible for correcting a 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.
- The Controlling Employer ["or Manager" crossed out]: An employer ["or manager" crossed out] who by contractual right or a combination of other rights has the authority to manage the exposing, creating or correcting employer. To be citable as a controlling employer ["or manager" crossed out] it must have failed to exercise its responsibility to prevent, discover or correct a hazard. [Handwritten comment - "Manager carries no definition"]
- Contractual Control
- By a Specific Contract Right to Control Safety: To be a controlling employer ["or manager" is scribbled out] it must be able to require other employers to ["prevent" is crossed out and "remove" handwritten] or correct as 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 [comma added] a violation may be issued to the general contractor or construction manager as an exposing [word crossed out and "employer" handwritten].
- By a Combination of Other Rights: Where there is not specific contract right to coordinate safety or where the contract says the employer does NOT have such a right ["employer does NOT have such a right" is circled and handwritten comment added: Forget "Right" Employer always has the "duty"] an employer may still be a controlling contractor ["or manager" crossed out]. 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 effect 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 ["or manager" crossed out]. Where this combination of rights does not exist ["Where this combination of rights does not exist" is circled with line to handwritten comment added: "This takes 'controlling employer' off the hook - Wrong"], then citations will not be issued other than for exposure to employees.
- Responsibility to Control Work Without Contractual Authority: An employer can still be a controlling ["contractor" circled and line drawn to handwritten "employer" and handwritten comment added: "Use employer consistently"] ["or manager" crossed out]. If, in actual practice it exercises control ["and" crossed out] or management authority between subcontractors at the site. However when authority to control ["and" crossed out] or manage work between subcontractors in 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 ["A construction manager does not hold the contracts for construction work" is circled and handwritten comment added: "Can this happen? I doubt it"] 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.
- Reasonable care: Knowledge, identification, authority, and expertise to take corrective action.
- A controlling employer ["or manager" crossed out] will be cited if it failed to exercise reasonable care in preventing or correcting a violation.
- The reasonable care standard for a controlling employer or ["or manager" crossed out] is not as high as it is for exposing, creating or correcting employers,
- This means the controlling employer or manager ["or manager" crossed out] 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.
- Factors that affect how frequently and closely a controlling employer ["or manager" crossed out] must inspect to meet it [sic] 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.
- A checklist for examining reasonable care:
- Did the coordinating entity have knowledge of the hazard or violation of the creating or exposing employer?
- Is there evidence of an effective safety and health program in place for this site?
- Is there a system in place for indentifying and correcting hazards for this site?
- Is there any indication of regular jobsite safety meetings and or safety training?
- Does the creating or exposing employer have a previous history of similar violations, and are steps being taken to indentify and correct these situations.