|DIRECTIVE NUMBER:CPL 2-0.124
||EFFECTIVE DATE: December 10, 1999|
|SUBJECT: Multi-Employer Citation Policy|
||To Clarify the Agency's multi-employer citation policy|
OSHA Instruction CPL 2.103 (the FIRM)
||Chapter III, Paragraph C. 6. of the FIRM is suspended and replaced by this directive|
||This Instruction describes a Federal Program Change. Notification of State intent is required, but adoption is not.|
||National, Regional, and Area Offices|
||Directorate of Compliance Programs|
||Carl Sall (202) 693-2345|
Directorate of Construction
200 Constitution Ave., NW
Washington, DC 20210
By and Under the Authority of
R. Davis Layne
Deputy Assistant Secretary, OSHA
TABLE OF CONTENTS
- Action Information
- Federal Program Change
- Force and Effect of Revised Policy
- Changes in Web Version of FIRM
- Continuation of Basic Policy
- No Changes in Employer Duties
- Multi-employer Worksite Policy
- Multi-employer Worksites
- The Creating Employer
- The Exposing Employer
- The Correcting Employer
- The Controlling Employer
- Multiple Roles
- Purpose. This Directive clarifies the Agency's multi-employer citation policy and
suspends Chapter III. C. 6. of OSHA's Field Inspection Reference Manual (FIRM).
- Scope. OSHA-Wide
- Suspension. Chapter III. Paragraph C. 6. of the FIRM (CPL 2.103) is suspended and
replaced by this Directive.
- References. OSHA Instructions:
- CPL 02-00.103; OSHA Field Inspection Reference Manual (FIRM), September
- ADM 08-0.1C, OSHA Electronic Directive System, December 19,1997.
- Responsible Office. Directorate of Construction.
- Action Offices. National, Regional and Area Offices
- Information Offices. State Plan Offices, Consultation Project Offices
Federal Program Change. This Directive describes a Federal Program Change for which
State adoption is not required. However, the States shall respond via the two-way
memorandum to the Regional Office as soon as the State's intent regarding the multi-employer citation policy is known, but no later than 60 calendar days after the date of
transmittal from the Directorate of Federal-State Operations.
Force and Effect of Revised Policy. The revised policy provided in this Directive is in
full force and effect from the date of its issuance. It is an official Agency policy to be
Changes in Web Version of FIRM. A note will be included at appropriate places in the
FIRM as it appears on the Web indicating the suspension of Chapter III paragraph 6. C.
and its replacement by this Directive, and a hypertext link will be provided connecting
viewers with this Directive.
Background. OSHA's Field Inspection Reference Manual (FIRM) of September 26,
1994 (CPL 2.103), states at Chapter III, paragraph 6. C., the Agency's citation policy for
multi-employer worksites. The Agency has determined that this policy needs
clarification. This directive describes the revised policy.
Multi-employer Worksite Policy. The following is the multi-employer citation policy:
- Continuation of Basic Policy. This revision continues OSHA's existing policy
for issuing citations on multi-employer worksites. However, it gives clearer and
more detailed guidance than did the earlier description of the policy in the FIRM,
including new examples explaining when citations should and should not be
issued to exposing, creating, correcting, and controlling employers. These
examples, which address common situations and provide general policy guidance,
are not intended to be exclusive. In all cases, the decision on whether to issue
citations should be based on all of the relevant facts revealed by the inspection or
- No Changes in Employer Duties. This revision neither imposes new duties on
employers nor detracts from their existing duties under the OSH Act. Those
duties continue to arise from the employers' statutory duty to comply with OSHA
standards and their duty to exercise reasonable diligence to determine whether
violations of those standards exist.
- Multi-employer Worksites. On multi-employer worksites (in all industry sectors),
more than one employer may be citable for a hazardous condition that violates an
OSHA standard. A two-step process must be followed in determining whether
more than one employer is to be cited.
- Step One. The first step is to determine whether the employer is a creating,
exposing, correcting, or controlling employer. The definitions in
paragraphs (B) - (E) below explain and give examples of each. Remember
that an employer may have multiple roles (see paragraph H). Once you
determine the role of the employer, go to Step Two to determine if a
citation is appropriate (NOTE: only exposing employers can be cited for
General Duty Clause violations).
- Step Two. If the employer falls into one of these categories, it has
obligations with respect to OSHA requirements. Step Two is to determine
if the employer's actions were sufficient to meet those obligations. The
extent of the actions required of employers varies based on which category
applies. Note that the extent of the measures that a controlling employer
must take to satisfy its duty to exercise reasonable care to prevent and
detect violations is less than what is required of an employer with respect
to protecting its own employees.
- The Creating Employer
- Step 1: Definition: The employer that caused a hazardous condition that
violates an OSHA standard.
- Step 2: Actions Taken: Employers must not create violative conditions.
An employer that does so is citable even if the only employees exposed
are those of other employers at the site.
- Example 1: Employer Host operates a factory. It contracts with
Company S to service machinery. Host fails to cover drums of a
chemical despite S's repeated requests that it do so. This results in
airborne levels of the chemical that exceed the Permissible
Analysis: Step 1: Host is a creating employer because it caused
employees of S to be exposed to the air contaminant above the
PEL. Step 2: Host failed to implement measures to prevent the
accumulation of the air contaminant. It could have met its OSHA
obligation by implementing the simple engineering control of
covering the drums. Having failed to implement a feasible
engineering control to meet the PEL, Host is citable for the
- Example 2: Employer M hoists materials onto Floor 8, damaging
perimeter guardrails. Neither its own employees nor employees of
other employers are exposed to the hazard. It takes effective steps
to keep all employees, including those of other employers, away
from the unprotected edge and informs the controlling employer of
the problem. Employer M lacks authority to fix the guardrails
Analysis: Step 1: Employer M is a creating employer because it
caused a hazardous condition by damaging the guardrails. Step 2:
While it lacked the authority to fix the guardrails, it took
immediate and effective steps to keep all employees away from the
hazard and notified the controlling employer of the hazard.
Employer M is not citable since it took effective measures to
prevent employee exposure to the fall hazard.
- The Exposing Employer
- Step 1: Definition: An employer whose own employees are exposed to
the hazard. See Chapter III, section (C)(1)(b) for a discussion of what
- Step 2: Actions taken: If the exposing employer created the violation, it is
citable for the violation as a creating employer. If the violation was
created by another employer, the exposing employer is citable if it (1)
knew of the hazardous condition or failed to exercise reasonable diligence
to discover the condition, and (2) failed to take steps consistent with its
authority to protect is employees. If the exposing employer has authority
to correct the hazard, it must do so. If the exposing employer lacks the
authority to correct the hazard, it is citable if it fails to do each of the
following: (1) ask the creating and/or controlling employer to correct the
hazard; (2) inform its employees of the hazard; and (3) take reasonable
alternative protective measures. 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.
- Example 3: Employer Sub S is responsible for inspecting and
cleaning a work area in Plant P around a large, permanent hole at
the end of each day. An OSHA standard requires guardrails.
There are no guardrails around the hole and Sub S employees do
not use personal fall protection, although it would be feasible to do
so. Sub S has no authority to install guardrails. However, it did
ask Employer P, which operates the plant, to install them. P
refused to install guardrails.
Analysis: Step 1: Sub S is an exposing employer because its
employees are exposed to the fall hazard. Step 2: While Sub S has
no authority to install guardrails, it is required to comply with
OSHA requirements to the extent feasible. It must take steps to
protect its employees and ask the employer that controls the hazard
- Employer P - to correct it. Although Sub S asked for guardrails,
since the hazard was not corrected, Sub S was responsible for
taking reasonable alternative protective steps, such as providing
personal fall protection. Because that was not done, Sub S is
citable for the violation.
- Example 4: Unprotected rebar on either side of an access ramp
presents an impalement hazard. Sub E, an electrical subcontractor,
does not have the authority to cover the rebar. However, several
times Sub E asked the general contractor, Employer GC, to cover
the rebar. In the meantime, Sub E instructed its employees to use a
different access route that avoided most of the uncovered rebar and
required them to keep as far from the rebar as possible.
Analysis: Step 1: Since Sub E employees were still exposed to
some unprotected rebar, Sub E is an exposing employer. Step 2:
Sub E made a good faith effort to get the general contractor to
correct the hazard and took feasible measures within its control to
protect its employees. Sub E is not citable for the rebar hazard.
- The Correcting Employer
- Step 1: Definition: An employer who is engaged in a common
undertaking, on the same worksite, as the exposing employer and is
responsible for correcting a hazard. This usually occurs where an
employer is given the responsibility of installing and/or maintaining
particular safety/health equipment or devices.
- Step 2: Actions taken: The correcting employer must exercise reasonable
care in preventing and discovering violations and meet its obligations of
correcting the hazard.
- Example 5: Employer C, a carpentry contractor, is hired to erect
and maintain guardrails throughout a large, 15-story project. Work
is proceeding on all floors. C inspects all floors in the morning and
again in the afternoon each day. It also inspects areas where
material is delivered to the perimeter once the material vendor is
finished delivering material to that area. Other subcontractors are
required to report damaged/missing guardrails to the general
contractor, who forwards those reports to C. C repairs damaged
guardrails immediately after finding them and immediately after
they are reported. On this project few instances of damaged
guardrails have occurred other than where material has been
delivered. Shortly after the afternoon inspection of Floor 6,
workers moving equipment accidentally damage a guardrail in one
area. No one tells C of the damage and C has not seen it. An
OSHA inspection occurs at the beginning of the next day, prior to
the morning inspection of Floor 6. None of C's own employees are
exposed to the hazard, but other employees are exposed.
Analysis: Step 1: C is a correcting employer since it is
responsible for erecting and maintaining fall protection equipment.
Step 2: The steps C implemented to discover and correct damaged
guardrails were reasonable in light of the amount of activity and
size of the project. It exercised reasonable care in preventing and
discovering violations; it is not citable for the damaged guardrail
since it could not reasonably have known of the violation.
- The Controlling Employer
- Step 1: Definition: An employer 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.
- Step 2: Actions Taken: A controlling employer must exercise reasonable
care to prevent and detect violations on the site. The extent of the
measures that a controlling employer must implement to satisfy this duty
of reasonable care is less than what is required of an employer with respect
to protecting its own employees. This means that the controlling employer
is not normally required to inspect for hazards as frequently or to have the
same level of knowledge of the applicable standards or of trade expertise
as the employer it has hired.
- Factors Relating to Reasonable Care Standard. Factors that affect how
frequently and closely a controlling employer must inspect to meet its
standard of reasonable care include:
- The scale of the project;
- The nature and pace of the work, including the frequency with
which the number or types of hazards change as the work
- How much the controlling employer knows both about the safety
history and safety practices of the employer it controls and about
that employer's level of expertise.
- More frequent inspections are normally needed if the controlling
employer knows that the other employer has a history of non-compliance. Greater inspection frequency may also be needed,
especially at the beginning of the project, if the controlling
employer had never before worked with this other employer and
does not know its compliance history.
- Less frequent inspections may be appropriate where the controlling
employer sees strong indications that the other employer has
implemented effective safety and health efforts. The most
important indicator of an effective safety and health effort by the
other employer is a consistently high level of compliance. Other
indicators include the use of an effective, graduated system of
enforcement for non-compliance with safety and health
requirements coupled with regular jobsite safety meetings and
- Evaluating Reasonable Care. In evaluating whether a controlling
employer has exercised reasonable care in preventing and discovering
violations, consider questions such as whether the controlling employer:
- Conducted periodic inspections of appropriate frequency
(frequency should be based on the factors listed in G.3.);
- Implemented an effective system for promptly correcting hazards;
- Enforces the other employer's compliance with safety and health
requirements with an effective, graduated system of enforcement
and follow-up inspections.
- Types of Controlling Employers
- Control Established by Contract. In this case, the Employer Has a
Specific Contract Right to Control Safety: To be a controlling
employer, the employer must itself be able to prevent or correct a
violation or to require another employer to prevent or correct the
violation. One source of this ability is explicit contract authority.
This can take the form of a specific contract right to require
another employer to adhere to safety and health requirements and
to correct violations the controlling employer discovers.
(1) Example 6: Employer GH contracts with Employer S to do sandblasting at GH's plant. Some of the work is regularly
scheduled maintenance and so is general industry work; other parts
of the project involve new work and are considered construction.
Respiratory protection is required. Further, the contract explicitly
requires S to comply with safety and health requirements. Under
the contract GH has the right to take various actions against S for
failing to meet contract requirements, including the right to have
non-compliance corrected by using other workers and back-charging for that work. S is one of two employers under contract
with GH at the work site, where a total of five employees work.
All work is done within an existing building. The number and
types of hazards involved in S's work do not significantly change
as the work progresses. Further, GH has worked with S over the
course of several years. S provides periodic and other safety and
health training and uses a graduated system of enforcement of
safety and health rules. S has consistently had a high level of
compliance at its previous jobs and at this site. GH monitors S by
a combination of weekly inspections, telephone discussions and a
weekly review of S's own inspection reports. GH has a system of
graduated enforcement that it has applied to S for the few safety
and health violations that had been committed by S in the past few
years. Further, due to respirator equipment problems S violates
respiratory protection requirements two days before GH's next
scheduled inspection of S. The next day there is an OSHA
inspection. There is no notation of the equipment problems in S's
inspection reports to GH and S made no mention of it in its
Analysis: Step 1: GH is a controlling employer because it has
general supervisory authority over the worksite, including
contractual authority to correct safety and health violations. Step
2: GH has taken reasonable steps to try to make sure that S meets
safety and health requirements. Its inspection frequency is
appropriate in light of the low number of workers at the site, lack
of significant changes in the nature of the work and types of
hazards involved, GH's knowledge of S's history of compliance
and its effective safety and health efforts on this job. GH has
exercised reasonable care and is not citable for this condition.
(2) Example 7: Employer GC contracts with Employer P to do
painting work. GC has the same contract authority over P as
Employer GH had in Example 6. GC has never before worked
with P. GC conducts inspections that are sufficiently frequent in
light of the factors listed above in (G)(3). Further, during a
number of its inspections, GC finds that P has violated fall
protection requirements. It points the violations out to P during
each inspection but takes no further actions.
Analysis: Step 1: GC is a controlling employer since it has general
supervisory authority over the site, including a contractual right of
control over P. Step 2: GC took adequate steps to meet its
obligation to discover violations. However, it failed to take
reasonable steps to require P to correct hazards since it lacked a
graduated system of enforcement. A citation to GC for the fall
protection violations is appropriate.
(3) Example 8: Employer GC contracts with Sub E, an
electrical subcontractor. GC has full contract authority over Sub E,
as in Example 6. Sub E installs an electric 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.
Further, GC inspects the site with a frequency appropriate for the
site in light of the factors discussed above in (G)(3). It saw the
panel box but did not test the outlets to determine if they were all
grounded because Sub E represents that it is doing all of the
required tests on all receptacles. GC knows that Sub E has
implemented an effective safety and health program. From
previous experience it also knows Sub E is familiar with the
applicable safety requirements and is technically competent. GC
had asked Sub E if the electrical equipment is OK for use and was
assured that it is.
Analysis: Step 1:
GC is a controlling employer since it has general
supervisory authority over the site, including a contractual right of
control over Sub E. Step 2: GC exercised reasonable care. It had
determined that Sub E had technical expertise, safety knowledge
and had implemented safe work practices. It conducted inspections
with appropriate frequency. It also made some basic inquiries into
the safety of the electrical equipment. Under these circumstances
GC was not obligated to test the outlets itself to determine if they
were all grounded. It is not citable for the grounding violation.
- Control Established by a Combination of Other Contract Rights:
Where there is no explicit contract provision granting the right to
control safety, or where the contract says the employer does not
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. Its responsibility is broad enough so that its contractual
authority necessarily involves safety. The authority to resolve
disputes between subcontractors, set schedules and determine
construction sequencing are particularly significant because they
are likely to affect safety. (NOTE: citations should only be issued
in this type of case after consulting with the Regional Solicitor's
(1) Example 9: Construction manager M is contractually
obligated to: set schedules and construction sequencing, require
subcontractors to meet contract specifications, negotiate with
trades, resolve disputes between subcontractors, direct work and
make purchasing decisions, which affect safety. However, the
contract states that M does not have a right to require compliance
with safety and health requirements. Further, Subcontractor S asks
M to alter the schedule so that S would not have to start work until
Subcontractor G has completed installing guardrails. M is
contractually responsible for deciding whether to approve S's
Analysis: Step 1: Even though its contract states that M does not
have authority over safety, the combination of rights actually given
in the contract provides broad responsibility over the site and
results in the ability of M to direct actions that necessarily affect
safety. For example, M's contractual obligation to determine
whether to approve S's request to alter the schedule has direct
safety implications. M's decision relates directly to whether S's
employees will be protected from a fall hazard. M is a controlling
employer. Step 2: In this example, if M refused to alter the
schedule, it would be citable for the fall hazard violation.
(2) Example 10: Employer ML's contractual authority is
limited to reporting on subcontractors' contract compliance to
owner/developer O and making contract payments. Although it
reports on the extent to which the subcontractors are complying
with safety and health infractions to O, ML does not exercise any
control over safety at the site.
Analysis: Step 1: ML is not a controlling employer because these
contractual rights are insufficient to confer control over the
subcontractors and ML did not exercise control over safety.
Reporting safety and health infractions to another entity does not,
by itself (or in combination with these very limited contract rights),
constitute an exercise of control over safety. Step 2: Since it is
not a controlling employer it had no duty under the OSH Act to
exercise reasonable care with respect to enforcing the
subcontractors' compliance with safety; there is therefore no need
to go to Step 2.
- Architects and Engineers: Architects, engineers, and other entities
are controlling employers only if the breadth of their involvement
in a construction project is sufficient to bring them within the
parameters discussed above.
(1) Example 11: Architect A contracts with owner O to
prepare contract drawings and specifications, inspect the work,
report to O on contract compliance, and to certify completion of
work. A has no authority or means to enforce compliance, no
authority to approve/reject work and does not exercise any other
authority at the site, although it does call the general contractor's
attention to observed hazards noted during its inspections.
Analysis: Step 1: A's responsibilities are very limited in light of
the numerous other administrative responsibilities necessary to
complete the project. It is little more than a supplier of
architectural services and conduit of information to O. Its
responsibilities are insufficient to confer control over the
subcontractors and it did not exercise control over safety. The
responsibilities it does have are insufficient to make it a controlling
employer. Merely pointing out safety violations did not make it a
controlling employer. NOTE: In a circumstance such as this it is
likely that broad control over the project rests with another entity.
Step 2: Since A is not a controlling employer it had no duty under
the OSH Act to exercise reasonable care with respect to enforcing
the subcontractors' compliance with safety; there is therefore no
need to go to Step 2.
(2) Example 12: Engineering firm E has the same contract
authority and functions as in Example 9.
Analysis: Step 1: Under the facts in Example 9, E would be
considered a controlling employer. Step 2: The same type of
analysis described in Example 9 for Step 2 would apply here to
determine if E should be cited.
- Control Without Explicit Contractual Authority . Even where an
employer has no explicit 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 (see
Example 9). NOTE: Citations should only be issued in this type of
case after consulting with the Regional Solicitor's office.
(1) Example 13: Construction manager MM does not have
explicit contractual authority to require subcontractors to comply
with safety requirements, nor does it explicitly have broad
contractual authority at the site. However, it exercises control over
most aspects of the subcontractors' work anyway, including
aspects that relate to safety.
Analysis: Step 1: MM would be considered a controlling
employer since it exercises control over most aspects of the
subcontractor's work, including safety aspects. Step 2: The same
type of analysis on reasonable care described in the examples in
(G)(5)(a) would apply to determine if a citation should be issued to
this type of controlling employer.
- Multiple Roles
- A creating, correcting or controlling employer will often also be an
exposing employer. Consider whether the employer is an exposing
employer before evaluating its status with respect to these other roles.
- Exposing, creating and controlling employers can also be correcting
employers if they are authorized to correct the hazard.