Contractors realize the need to comply with OSHA standards to protect their own workers. What some may not realize, however, is that in many cases OSHA may require them to protect all workers, regardless of their employer, on a construction site. This article briefly outlines OSHA’s Multiemployer Worksite Policy and gives examples of ways a contractor can protect itself from another contractor’s poor decisions with respect to safety

The Occupational Safety and Health Act of 1970 sets forth an employer’s duties with respect to employee safety:

Each Employer – (1) 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; (2) shall comply with occupational safety and health standards promulgated under this chapter.

29 U.S.C. § 654 (emphasis added).

In Solis v. Summit Contractors, Inc., 558 F. 3d 815 (February 26, 2009), the court determined that item one above creates a “general duty running only to an employer’s own employees” while item two “creates a specific duty to comply with standards for the good of all employees on a multi-employer worksite.” Contractors may ask under what circumstances they may be responsible for the safety of another contractor’s employees. The answer is found in OSHA’s Multiemployer Worksite Policy.

The Multiemployer Worksite Policy

The Multiemployer Worksite Policy defines four categories that employers can potentially fit into. They are (1) creating employers, (2) exposing employers, (3) correcting employers, and (4) controlling employers.

(1) Creating Employer: Employer that caused a hazardous condition that violates an OSHA standard;

(2) Exposing Employer: Employer whose employees are exposed to the hazard;

(3) Correcting Employer: Employer who is engaged in a common undertaking, on the same worksite as the exposing employer and is responsible for correcting the hazard. This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/ health equipment or devices;

(4) Controlling Employer: 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.

One common example is when a contractor hires a subcontractor to perform a specific task on a project. As an example, assume the subcontractor was hired to install an underground utility line because the contractor lacked the required license for such installation. The contractor uses its excavator to dig the trench in which the subcontractor will work. When the trench is found to be improperly sloped or no other protection is used, the subcontractor can be cited when its employee enters the unprotected trench. The contractor can also be cited as the controlling or creating employer despite the fact that none of the contractor’s employees entered the excavation.

This scenario is fact intensive and liability can vary depending on the exact situation. Who had the contractual responsibility to make sure the trench was safe? Who directed the excavation and measured the slope of the trench? Was the contractor’s foreman present, or did the contractor simply supply an excavator and operator who worked at the subcontractor’s direction?

Solis v. Summit Contractors, Inc.

One recent case challenged the Multiemployer Worksite Policy. Summit Contractors, Inc. was the general contractor for the construction of a college dormitory. Summit subcontracted exterior brick masonry work to All Phase Construction, Inc. On two or three occasions Summit inspected All Phase and found employees working on scaffolds without personal fall protection devices and without guardrails in violation of OSHA standards. The project superintendent advised All Phase to correct the problem. All Phase, however, eventually moved the scaffolds to another location on the same job and again permitted its employees to work on the scaffolds without fall protection.

OSHA inspected the site and issued a citation to Summit based upon the controlling employer citation policy. Summit’s employees were not exposed to the hazard and Summit did not create the hazard. In addition, Summit inspected the site and previously advised All Phase to correct the problem.

Summit contested the citation arguing that 29 CFR 1910.12(a) precludes OSHA from citing Summit where none of Summit’s own employees were exposed to the hazard.

“Standards.” The standards prescribed in part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

29 CFR 1910.12(a) (emphasis added).

The Review Commission agreed with Summit, but OSHA appealed the matter to the United States Court of Appeals for the Eighth Circuit. The Eighth Circuit Court determined that “the plain language of § 1910.12(a) does not preclude the Secretary’s controlling employer citation policy.”

After dissecting 1910.12(a), the Court determined that 1910.12(a) could be reconstructed grammatically to require “(1) that an employer shall protect the employment of each of his employees and (2) that an employer shall protect the places of employment of each of his employees.” The first part requires an employer to protect only its own employees while the second part, according to the Court, requires the employer to “protect the place of employment, including others who work at the place of employment, so long as the employer also has employees at that place of employment.”

Controlling Employer

The Court’s broad interpretation of 1910.12(a) again clears the way for controlling employer citations. Just who is a controlling employer? According to the definition above it is “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.”

The Multiemployer Citation Policy provides a few examples of who might be classified as a controlling employer. According to OSHA, control can be established in several ways:

Control that results from a specific contract right to require another employer to adhere to safety and health requirements and to correct violations the controlling employer discovers.

Control established by a combination of other contract rights. There is no explicit provision granting the right to control safety. The controlling employer’s responsibility is broad enough, when considering all of its contractual responsibilities, that its 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.”

Architects, engineers, and construction managers can also be cited as a controlling employer where their involvement on the project is similar to the authority outlined above.

Best Practices

The Multiemployer Worksite Policy is broad and seemingly could be used to cite nearly any entity working on a construction site under the right circumstances. There are, however, several steps that can be taken to help shield a contractor from liability.

Contractual language can be drafted setting forth who is responsible for safety. If a subcontractor is responsible, then include language in the subcontract stating so.

The contractor should document everything with respect to each party’s responsibilities for safety. Consider the example where a subcontractor is hired to install a water line, but the general contractor’s excavator and operator are used to dig the trench at the direction of the subcontractor. The general contractor may be cited as a controlling or a creating employer. One way to possibly avoid a citation is for the general contractor to prepare a written lease for the equipment and operator to be leased to the subcontractor. In addition, the lease will require the subcontractor to be responsible for all safety standards and precautions and for controlling the operator’s work. Documenting the relationship and following that plan in practice may limit a contractor’s liability.

Where a contractor keeps authority to control safety on the site and also inspects the subcontractor for possible safety violations, the contractor should take all reasonable steps to require the correction of any violations that are discovered. These steps may include a temporary shutdown of the subcontractor’s work until the problems are corrected or, for repetitive issues with a subcontractor, removing the subcontractor from the site altogether. A clear safety policy with respect to subcontractors must be developed and followed.

The contract between the contractor and its subcontractor should include a broad indemnification provision protecting the contractor. In the event that the contractor receives a citation based on the subcontractor’s failure to follow OSHA standards, the subcontractor should be required to pay the contractor’s associated penalties, costs, and expenses.

Conclusion

The Multiemployer Worksite Policy has been challenged and, so far, it has survived. In the meantime, however, contractors should be diligent in documenting who is responsible for safety on the project. Broad indemnification language should also be included to shield a contractor from potential fines. Contractors need to consider the various protections before the contract is signed.