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The following is a product of the Construction Advisory Committee, not OSHA, and does not represent OSHA policy.




June 10, 1999

Members of the Advisory Committee On Construction Safety and Health

Dear Ladies and Gentlemen,

The Advisory Committee On Construction Safety and Health (ACCSH) formed a workgroup in 1998 to comment on proposed changes to Field Instructional Reference Manual (FIRM) regarding Multi-employer worksites.

It should be noted that these proposed changes to the FIRM are designed to help Compliance Safety and Health Officers make a determination of whether or not to cite an employer under conditions outlined by this policy. It will also help employers identify circumstances and situations in which they may be cited if an affirmative defense based on "reasonable care" can not established.

In the public comments of this workgroup several stakeholders had concerns regarding the agency's right to apply this administrative policy. Some felt that no where in the act did the agency have the legal right to cite one employer for the misconduct of another. In our investigation of previous review commission findings and court cases involving this issue, we found court cases supporting both sides of this issue. This workgroup decided that our expertise was not in interpreting case law and that our time would be better served discussing construction workplace situations we were familiar with in our everyday experiences.

The format for this section we hope will be useful in dealing with the dynamic and ever changing conditions of a multi-employer worksite. We have tried through definition, example and analysis of a situation to give both the compliance officer and the employer a measure of action by which (a) the compliance office could support a citation under certain circumstances or (b) an employer could present and affirmative defense to a citation which may have been wrongful given.

Our workgroup observed that in construction the employer/employee relationship is expanded beyond its normal definition by the dynamics of a construction project in which many employers must work in a coordinated effort to assure a safe and healthful workplace.

Some believe that by identifying and citing a controlling employer or manager, OSHA is diluting the responsibility of each employer to their employees and safety is not served. Others believe that corrective action or improvement of workplace safety is the responsibility (legally or morally) of those charged with providing leadership in coordinating, supervising or controlling a project. Clearly in this discussion the duty to each employer to provide leadership and emphasize safe work practices to each employee who receives a paycheck is much higher and should never be lost site of before any consideration of citing any other entity. To cite a controlling employer or manager because a subcontractor has received a citation should not be automatic and should not be the intent of this policy. To hold that the OSH Act requires compliance officers to cite more than one entity regardless of circumstances or whose employees are exposed is a narrow and unrealistic interpretation of the Act.

The issue of subcontractors' rights under the control of an entity who will hold the sub-contractor (by contract) financially responsible not only for their citations but any other issued to the holder of their contract is an issue recognized by this workgroup as a threat to the team approach of worksite safety. The ill will created by this condition does not improve workplace safety. We should continue to work with the agency to seek a resolution to the problem of contractors passing citation issued to them down the line to avoid financial penalties.

The examples and analysis given by this workgroup are not intended to cover every workplace or contract situation, as these situations change everyday and are only limited by the imagination of those who create them. However, regardless of any technicalities in contract language, interpretations of the intent of the OSH Act at the end of the day we must ask ourselves "Does OSHA's administrative policy to cite more than one employer on a construction worksite improve work place safety on American construction worksites?"

The conclusion of this workgroup is that when used and enforced after careful consideration of the facts this is a useful tool in helping to improve workplace safety on construction sites. However, the misuse of this citation power can also be just as destructive to the team work approach to safety as failing to correct a recognized hazard when issued with no regard to the facts of certain workplace circumstances or situations.

These comments are not intended to codify any new or existing standard but only to advise the agency on its administrative procedure of issuing citations under this section of the FIRM. Danny and I hope this information is helpful and useful and that you will approve that our workgroup product be sent to OSHA for consideration.

We would like to thank all interested parties who participated in this effort. We have included an appendix of written comments in this workgroup product for the agency's information or review.

Sincerely,

Felipe G. Devora
Danny Evans

Current Policy

C. 6. Multiemployer Worksites. On multiemployer worksites, both construction and non-construction, citations normally shall be issued to employers whose employees are exposed to hazards (the exposing employer).

a. Additionally, the following employers normally shall be cited, whether or not their own employees are exposed, but see C.2.c.(2)(a)2 of this chapter for Section 5(a)(1) violation guidance:

    (1) The employer who actually creates the hazard (the creating employer);

    (2) The employer who is responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who has the authority for ensuring that the hazardous condition is corrected (the controlling employer);

    (3) The employer who has the responsibility for actually correcting the hazard (the correcting employer).

b. Prior to issuing citations to an exposing employer, it must first be determined whether the available facts indicate that employer has a legitimate defense to the citation, as set forth below:

(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.

C. 6. c. If an exposing employer meets all these defenses, that employer shall not be cited. If all employers on a worksite with employees exposed to a hazard meet these conditions, then the citation shall be issued only to the employers who are responsible for creating the hazard and/or who are in the best position to correct the hazard or to ensure its correction. In such circumstances the controlling employer and/or the hazard-creating employer shall be cited even though no employees of those employers are exposed to the violative condition. Penalties for such citations shall be appropriately calculated, using the exposed employees of all employers as the number of employees for probability assessment.

Advisory Committee On Construction Safety and Health
Multi-Employer Workgroup

06-1999
Co-chaired Member Felipe Devora, Danny Evans

C. 6. Multi-employer Worksites 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.

a. The Exposing Employer An employer whose own employees are exposed to the hazard.

(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.

b. 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, 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.

c. 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.

d. The Controlling Employer or Manager An employer or manager 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 it must have failed to exercise its responsibility to prevent, discover or correct a hazard.

e. Contractual Control

(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?

Written Comments Appendix

Comments #1
Comments #2
Comments #3
Comments #4
Comments #5
Comments #6
Comments #7
Comments #8
Comments #9
Comments #10
Comments #11
Comments #12
Comments #13
Comments #14
Comments #15
Comments #16