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12/01/98

Response to Draft OSHA Multi-Employer Policy

Specific comments and suggestion to the 9/8/98 Draft document:

There is agreement with 6 a., b., and c. The concept of Exposing, Creating and Correcting Employer is well established, fair and within the meaning of the Act.

6d. Controlling Employer

An employer who has contractual ["contractual" is bold face and underlined] control over the exposing, creating or correcting employer. To be citable as a controlling employer, the employer must have a contractual relationship ["a contractual relationship" is bold face and underlined] that provides sufficient control and must have failed to exercise reasonable care in preventing, discovering or correcting the hazard.

(1) ["Sufficient" is crossed out] Contractual Control

(Comment: If there is not contractual relationship between employers (or contractors), then there can not be a contractor/sub-contractor relationship. The absence of such a relationship is proof that citations can be issued other that for exposure to 6 a, b or c above. this is also very industry specific and should be broadly worded to include General Industry and Maritime.)

Suggested Wording

(a) By a Specific Contract Right to Control Safety: To be a controlling contractor, the employer must be able to require a ["subcontractor" is crossed out] employer ["employer" is bold face and underlined] to prevent or correct a violation. ["One" is crossed out] The ["The" is bold face and underlined] source of this ability is contract authority. This can take the form of a specific contract right to require ["a subcontractor" is scribbled through and "an employer" is handwritten in] to adhere to safety and health requirements.

If there is a contractual relationship with a provision that provides control such as the ability to prevent or order correction of violations and that employer has not exercised reasonable care in enforcing the contract, then a violation may be issued to the controlling employer even absence exposure to employees. [The entire paragraph is bold face and underlined]

Example: A Construction Manager holds a contract with a owner of a property to provide some [there is illegible scrawl above "some"] services with all contracts for physical construction held by the property owner. Since there is no contractual relationship between the Exposing employer and the Construction Manager, citations would only be issued to the Construction Manager ["Construction Manager" is scribbled out] for exposures to their employees. [The entire paragraph is bold face and underlined]

(b) By a Combination of Other Contract Rights: Where there is no specific contract provision granting the right to control safety or where the contract says the employer does not ["not" is bold face and underlined] have such a right, an employer may still be a controlling employer. The ability of an employer to control safety in this circumstance can result from a combination of contractual rights that, together, give it broad responsibility at the site involving almost all aspects of the job, including aspects that affect safety.

Example: In construction, some of the contractual rights that typically combine to result in this authority include: the rights to set schedules and construction sequencing, retire contract specifications to be met, negotiate with trades, resolve disputes between subcontractors and results in the ability of the employer to direct actions relating to safety, the employer is considered a controlling [there is illegible scrawl above "controlling"] employer. Where this combination of rights does not exist or there is no contractual relationship, then citations will not be issued other than for exposure to employees. [The entire last sentence is bold face and underlined]

(2) Sufficient control without contractual authority

(a) Even where an employer has no contract rights with respect to safety, an employer can still be a controlling employer if, in actual practice, it exercises broad control over subcontractors, at the site. Citations should only be issued in the is type of case after consulting with the Regional Solicitor's office. [The entire last sentence is bold face and underlined]

(b) Example: A construction manager does not have specific contractual authority to require subcontractors to comply with safety requirements. However, it exercises control over the most aspects of the subcontractors' work anyway, Including aspects that relate to safety. This construction manager would be considered a controlling employer and would be citable if it failed to exercise reasonable care in overseeing safety. Should the Construction Manager not have a contractual relationship with the exposing employer, no citations will be issued other than for employee exposure. [The entire last sentence is bold face and underlined]

(3) Reasonable care

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

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

(i) This means that the controlling employer 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 contractor must inspect to meet its standard of reasonable care include the scale of the project, the nature of the work, how much the general contractor knows about both the safety history and safety practices of the subcontractor and about the subcontractor's level of expertise.

(c) Example: A general contractor hires and electrical subcontractor. The electrical subcontractor installs an electric panel box exposed to the weather and implements an assured equipments grounding conductor program, as required under the contract. It falls 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 of 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 it technically competent. It has asked the subcontractor if the electrical equipment is OK for use and was assured that it is.

Example: A construction Manager does not hold the contracts for construction work and provides oversight of the project but holds no authority to direct the 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 ["those" is handwritten below the paragraph with a line indicating it should be inserted here] exposed employees. [The entire paragraph is bold face and underlined]

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

Analysis: The Construction Manager did not have any contractual authority over the exposing employer and did not have the power to order corrective action. Reasonable care was taken to inspect and provide recommendations to the appropriate authority. No citations would be given. [The entire paragraph is bold face and underlined]

KEY: Bold Face and Underline indicates addition
Strikethrough indicates deletion