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.
(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.)
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]
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]
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]
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]
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