OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

December 13, 2001

Ms. Rebecca Cartwright
Safety Resources Company of Ohio Inc.
4253 Portage Avenue
North Canton, Ohio 44720

Re: CPL 2-0.124--Multi-Employer Citation Policy

Dear Ms. Cartwright,

This is in response to your October 1, 2001 letter to the Occupational Safety and Health Administration (OSHA). You ask for guidance in several worksite scenarios with regard to the application of CPL 2-0.124, OSHA'S Multi-Employer Citation Policy, to a Construction Manager ("CM").

Responsibilities under the Multi-Employer policy depend on the employer's role, not its job title. If the employer meets the criteria of a creating, controlling, exposing, or correcting employer, or any combination of them, it has safety and health obligations under OSHA's regulations. The nature of its obligations varies, to some degree, with its role.

The multi-employer policy explains the circumstances under which an employer that is engaged in construction may be cited where a workplace condition violates an OSHA standard. The policy is explained in CPL 2-0.124 (copy attached). It uses a two-step analysis:

 

 

TWO-STEP ANALYSIS

 


Step 1-- Does the employer have responsibilities regarding compliance with OSHA standards?

 

 

  • Decided by determining if the employer fits one or more of four of the following categories of employer: Exposing, Creating, Correcting, Controlling.
  • If the employer does not fit any of these categories, then it was not responsible for compliance with the standard.
  • If the employer does fit one of these categories, then go to Step 2.

Step 2-- Did the employer take sufficient steps to meet the requirements of the standard?

  • Extent of steps the employer was required to take depends on whether it was an Exposing, Creating, Correcting, or Controlling employer under Step 1.
  • If the employer took the steps required for its category, then it met its obligations and no citation is to be issued.
  • If the employer failed to take the steps required for its category, then it may be cited for a violation of the standard.

Scenario #1: The Construction Manager does not hold any of the subcontracts for the project- they are all held by the Owner.

Step 1
The significance of whether the CM holds any subcontracts with project subcontractors relates mostly to whether it is a controlling employer. As explained in the directive, a controlling employer is one:

> "who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice. Descriptions and examples of different kinds of controlling employers are given below."

One way of obtaining general supervisory authority over the worksite could be through holding all the subcontracts on the site -- for example, where the terms of those contracts gave the CM the ability to require the subs to correct violations or correct them itself.

In your scenario #1, the CM has no subcontracts with the subcontractors. That fact alone is not determinative of controlling employer status. The CM could still have obtained general supervisory authority through its own contract with the owner. So, the question cannot be answered without knowing the nature of the contract between the owner and the CM.

Also, remember to evaluate whether the CM meets the definitions of an exposing, correcting, or creating employer, since OSHA obligations arise from those roles as well.

Step 2
If the CM meets none of the role definitions under Step 1, then it cannot be cited under the multi-employer policy. If it does meet one (or more) of these definitions, then whether it can be cited for a violation in this scenario depends on whether it has taken the steps necessary to meet the obligations that pertain to that role(s). Those steps are described in detail in the compliance directive.

Scenario #2: The CM is not an exposing, creating or correcting employer. Its contract with the owner explicitly excludes the CM from on-site safety activities, but requires it to check that all of the project subcontractors have written safety programs. The CM conducts on-site inspections to coordinate the work of the subcontractors. Is the CM a controlling employer?
Scenario #3: The Construction Manager does not control scheduling of subcontractor work.
(Also when the Construction Manager does control the schedule.)

Scenario #4: The Construction Manager maintains a full-time, on-site superintendent with carpentry experience to control/resolve any construction issues or conflicts.

Answer:
Step 1
In scenarios #2 - 4, you have identified specific types of authority - coordination of work without on-site safety authority, scheduling, and resolution of construction issues/conflicts and asked if each one, in isolation, is sufficient to make a CM a controlling employer. As noted above, the test for determining controlling employer status is whether the employer "has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them."

These factors have to be viewed in the context of the actual construction situation. In almost all cases, some entity has general supervisory authority over the worksite. This authority often is given to a general contractor, although it is sometimes given to a construction manager or other type of entity. In some circumstances, the owner of a project (such as a commercial developer) may opt not to have a general contractor or other entity perform these functions and instead perform them itself.

To determine whether a construction manager with one of the functions you have listed in the scenarios is a controlling employer, it is helpful to look first to see if any other entity has the other supervisory functions traditionally given a general contractor. That is because the significance of each individual factor may vary, depending on the authority given to (or retained by) other entities involved. So, we cannot answer your question without specifics as to the nature of authority held by others.

For example, if another entity has the other functions traditionally assigned to a general contractor, then it is less likely that a construction manager with only one of the functions you ask about could be said to have general supervisory authority over the worksite. In contrast, if no other entity has those other functions, then each factor you mention takes on a heightened significance, and it is more likely that, in practice, the construction manager would have general supervisory authority. Remember, that it is not just the contract language that is considered. Irrespective of the contract language, if, as a practical reality, the construction manager is exercising eneral supervisory authority, then it will be considered a controlling employer under the policy.

Additionally, with respect to your Scenario #4 (CM has a full-time, on-site superintendent with carpentry experience to control/resolve any construction issues or conflicts), keep in mind that even if the CM is not a controlling employer, if part of its responsibility is to correct safety violations, it would be considered a "correcting employer," which has OSHA obligations (those are described in the compliance directive).

Step 2
If the construction manager is a controlling employer, it can only be cited for OSHA violations as a controlling employer if it has failed to exercise reasonable care to meet its OSHA responsibilities.

Please let us know if you need any further clarification on this subject and feel free to contact us again by sending a fax to: Directorate of Construction- Office of Construction Standards and Guidance, fax # 202-693-1689; or mail us at Room N-3468, 200 Constitution Ave., N.W., Washington, D.C., 20210.

Sincerely,



Russell B. Swanson
Director, Directorate of Construction