Multi-Employer Worksites: Who Is Responsible for a Hazard?

When several employers work on one site, which of them can OSHA hold responsible for a hazardous condition? OSHA's answer is that, on multi-employer worksites in all industry sectors, "more than one employer may be citable for a hazardous condition that violates an OSHA standard" (CPL 2-0.124, Multi-employer Worksites). That matters whether you run the site or only send a crew to it.

This is OSHA policy, not a regulation

The answer comes from an OSHA enforcement directive, not from 29 CFR: the Multi-Employer Citation Policy, CPL 2-0.124 (also written CPL 02-00-124), effective December 10, 1999. It is addressed to OSHA's own national, regional, and area offices, and it describes how the agency decides which employers to cite (Abstract). Citations below name the directive's section headings.

The directive says it does not add to employers' duties or take away from the duties they already have under the OSH Act (Background, No Changes in Employer Duties).

The directive uses a two-step process

Step One is to determine whether the employer is "a creating, exposing, correcting, or controlling employer." It carries a note: "only exposing employers can be cited for General Duty Clause violations" (Multi-employer Worksites, Step One).

An employer in one of those categories "has obligations with respect to OSHA requirements." Step Two is to "determine if the employer's actions were sufficient to meet those obligations." How much is required "varies based on which category applies" (Multi-employer Worksites, Step Two).

The four roles, in the directive's own words

Creating employer: "The employer that caused a hazardous condition that violates an OSHA standard" (The Creating Employer, Step 1).
Exposing employer: "An employer whose own employees are exposed to the hazard" (The Exposing Employer, Step 1).
Correcting employer: "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 responsible for installing and/or maintaining particular safety/health equipment or devices (The Correcting Employer, Step 1).
Controlling employer: "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 (The Controlling Employer, Step 1).

One employer can hold more than one role. "A creating, correcting or controlling employer will often also be an exposing employer" (Multiple Roles).

What the creating, exposing, and correcting roles must do

Creating. "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 (The Creating Employer, Step 2).

Exposing. If the exposing employer created the violation, it is citable as a creating employer. If another employer created it, the exposing employer is citable if it (1) knew of the hazardous condition or failed to exercise reasonable diligence to discover it, and (2) failed to take steps consistent with its authority to protect its employees. If it has authority to correct the hazard, it must do so. If it lacks that authority, it is citable if it fails to do each of the following:

Ask the creating and/or controlling employer to correct the hazard.
Inform its employees of the hazard.
Take reasonable alternative protective measures.

In extreme circumstances (for example, imminent danger situations), it is citable for failing to remove its employees from the job (The Exposing Employer, Step 2).

Correcting. The correcting employer "must exercise reasonable care in preventing and discovering violations and meet its obligations of correcting the hazard" (The Correcting Employer, Step 2).

What "reasonable care" means for a controlling employer

A controlling employer "must exercise reasonable care to prevent and detect violations on the site." That is less than what is required of an employer protecting its own employees. 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" (The Controlling Employer, Step 2).

The directive lists factors that affect how frequently and closely a controlling employer must inspect (Factors Relating to Reasonable Care Standard):

The scale of the project.
The nature and pace of the work, including how often the number or types of hazards change as the work progresses.
How much the controlling employer knows about the safety history, safety practices, and level of expertise of the employer it controls.

On that last factor, more frequent inspections are normally needed if the controlling employer knows the other employer has a history of non-compliance. Less frequent inspections may be appropriate where it sees strong indications that the other employer has implemented effective safety and health efforts.

The directive also includes worked examples for each role.

What to do with this

Name every role you hold for a given hazard. You may hold more than one.
If your employees are exposed to a hazard you lack authority to correct, do all three things listed above.
If you control the site, ask the questions the directive lists (Evaluating Reasonable Care). Did you conduct periodic inspections of appropriate frequency? Did you implement an effective system for promptly correcting hazards? Do you enforce the other employer's compliance with an effective, graduated system of enforcement and follow-up inspections?

Source

This article relies on one OSHA page: CPL 2-0.124, Multi-Employer Citation Policy. It is an OSHA enforcement directive (agency policy), not a regulation. The regulation itself always controls. The directive says State adoption of this policy is not required (Federal Program Change), so the policy in a State that runs its own OSHA-approved State Plan may differ.