Enforcement and Inspection

Multiple Employers Means Multiple Liability: Could You Be Cited?

On June 18, 2016, workers for three different employers were troubleshooting a problem with the drill string at an oil well in Watford City, North Dakota, when a hydrocarbon release resulted in an explosion and flash fire. One worker was killed, three workers were injured—and all three employers were cited by the Occupational Safety and Health Administration (OSHA) for their role in the incident.

Having multiple employers at a worksite no longer means that each can point to the other when something goes wrong. Instead, OSHA’s policy is that every employer at a site bears a responsibility for safety. Here’s how OSHA’s multiemployer worksite policy could affect your workplace.

Could You Be Cited?

OSHA’s multiemployer citation policy, which is laid out in a December 10, 1999, Compliance Directive, CPL 02-00-124, has been interpreted, tested in court, and clarified many times since. Under that policy, OSHA may cite more than one employer at a worksite for a hazardous condition that violates an OSHA standard. OSHA follows a two-step process in determining whether to cite more than one employer:

  • Categorize employers. In its directive, OSHA outlines four categories of employers that may be cited for various infractions on a multiemployer worksite:  creating, exposing, correcting, and controlling employers. An employer must fall into one of these categories to be citable.
  • Evaluate each employer’s obligations. The category that an employer falls into will determine that employer’s obligations with respect to OSHA’s requirements, which may fall under a specific standard or under the general duty clause. If OSHA determines that the employer’s actions met its obligations, the employer will not be cited; if not, OSHA will issue a citation.

What about “Host Employers” and Other Employers?

Some specific OSHA standards describe the relationships and responsibilities of employers on multiemployer worksites using different terminology than the compliance directives. These standards may refer to “host employers” and “contractors,” “nonhost employers,” or “guest employers.”

The term “host employer” is used in:

  • The Permit-Required Confined Space Standard, 29 CFR 1910.146
  • The Fire Protection in Shipyard Employment Standard, 29 CFR 1915.501

It is also used in letters of interpretation addressing:

  • The Powered Industrial Truck Standard (29 CFR 1910.178)
  • The Control of Hazardous Energy (Lockout/Tagout) Standards (29 CFR 1910.147, 1926.417, and 1926.555)
  • The Hazard Communication Standard (29 CFR 1910.1200)
  • The Hazardous Waste Operations and Emergency Response Standard (HAZWOPER, 29 CFR 1910.120)
  • The Process Safety Management Standard (29 CFR 1910.119)
  • The Bloodborne Pathogens Standard (29 CFR 1910.1030)
  • Leased or temporary workers covered under the Recordkeeping Standard (29 CFR 1904)

A “host employer,” as the term is used and defined by OSHA, is essentially the same as a controlling employer.  The Shipyard Standards (29 CFR 1915.509) specifically defines a “host employer” as “an employer who is in charge of coordinating work or who hires other employers to perform work at a multiemployer workplace.”

Employers that are not host employers, regardless of the specific terminology used in a standard or interpretation, will be placed into the categories of creating, exposing, or correcting employers for the purpose of citations issued under OSHA’s multiemployer Compliance Directive.

Tomorrow, we’ll look at OSHA’s four categories and what obligations OSHA considers each category of employers responsible for at the worksite.

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