February 6, 2012
Michael J. Frenzel, CSP
Associated Safety Consultants, Inc.
9613 Interline Avenue, Suite D
Baton Rouge, Louisiana 70809
Dear Mr. Frenzel:
Thank you for your February 14, 2007, letter to the Occupational Safety and Health Administration (OSHA), Directorate of Construction. We apologize for the delay in our reply. You have specific questions regarding the application of the multi-employer policy to particular construction standards. This letter constitutes OSHA's interpretation of only the requirements discussed and may not be applicable to any question not delineated in your original correspondence.
Question 1: Can more than one employer on a construction worksite be cited for 29 CFR §1926.20(b)(1), (b)(2) or 29 CFR §1926.21(b)(2)?
Response 1: OSHA's multi-employer policy may apply with respect to these standards under some limited circumstances. Such circumstances may include situations where the general contractor is contractually obligated to providing training to subcontractors.
29 CFR §1926.20(b) provides:
(b) Accident prevention responsibilities.
(1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.
(2) Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.
29 CFR §1926.21(b)(2) provides:
(b) Employer responsibility.
* * *
(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure
to illness or injury.
Under the Multi-Employer Citation Policy1, CPL 2-0.124, (the Policy) "more than one employer may be citable for a hazardous condition that violates an OSHA standard." Any employer that exposes one of its employees to the hazards created by an unsafe condition may be subject to an OSHA citation. In situations where an employer's own employees are not exposed to a hazard, that employer may still be subject to OSHA coverage if the employer qualifies as a "creating," "correcting," or "controlling" employer. A two-step process is used to determine whether more than one employer may be cited for a hazardous condition.
Step One. The first step is to determine whether the employer is a creating, exposing, correcting, or controlling employer2. Once you determine the role of the employer, Step Two is used to determine whether a citation is appropriate.
Step Two. If the employer falls into one of the four 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 an employer varies based on which category applies.
As the Policy notes, "[t]he 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." As with any citation, a citation cited under the Policy is based on the unique facts and circumstances of each case.
Question 2: Is there an OSHA construction standard that requires an area to have signage or be barricaded to prevent employee exposure to a slipping hazard that results when glue is spread on the floor prior to laying carpet?
Response 2: No. There is no OSHA construction standard that specifically addresses the slipping hazard in your question. However, if the slipping hazard presented by the exposed glue is a "recognized hazard", then the General Duty Clause, section 5(a)(1) of the Occupational Safety and Health Act of 1970, applies.
Section 5(a)(1) of the OSH Act states that each employer shall
furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.
An employer can be cited for a violation of the General Duty Clause if a recognized hazard exists in the workplace and the employer does not take reasonable steps to prevent or abate the hazard. As you correctly noted in your letter, an employer cannot be cited for a violation of the General Duty Clause under the Multi-Employer Citation Policy unless he is the exposing employer. Consequently, only the exposing employer can be cited for any slipping hazard created by glue spread on a floor. If the employer chooses to erect signs near the area alerting workers to the hazard, the signs must conform to the specifications discussed in 29 CFR 1926.200 Accident prevention signs and tags3.
Thank you for your interest in occupational health. We hope you find this information helpful. 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. If you have any further questions, please feel free to contact the Directorate of Construction at (202) 693-2020.
James G. Maddux, Director
Directorate of Construction
1 The Multi-Employer Citation Policy can be viewed on OSHA's website at:
http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=2024. [Return to Text]
2 These terms are defined in the Policy. [Return to Text]
3 29 CFR 1926.200 can be viewed on OSHA's website at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=10681&p_table=STANDARDS. [Return to Text]