Enforcement and Inspection

Multiple Employers Mean Multiple Liability: What Are Your Obligations?

Yesterday we looked briefly at the Occupational Safety and Health Administration’s (OSHA) criteria for deciding when it will cite multiple employers at a single worksite for the same hazardous condition. Today we’ll take a closer look at the different categories of employers that OSHA may cite.

If you know which category you fall into, you’ll know what your obligations are under OSHA’s policy. Failing to meet your obligations can result in an OSHA citation.

Who’s Who at the Worksite?

OSHA’s Multi-Employer Citation Policy defines four categories of employers at a multi-employer worksite. As discussed yesterday, regardless of the terminology used for multiple employers in any specific standard, for purposes of citing multiple employers, OSHA will place them in one or more of these four categories: creating employer, exposing employer, correcting employer, or controlling employer.

Here’s what those categories mean:

Creating employers. The employer that caused a hazardous condition that violates a specific OSHA standard is the “creating employer.” Creating employers may be cited even if their own employees are not exposed to the hazard they created; however, creating employers cannot be cited for a general duty clause violation.

Exposing employers. The employer whose own employees are exposed to the hazard is the “exposing employer.” You can only be cited for a general duty clause violation if your own workers are exposed to a hazardous condition.

Correcting employers. An employer that is engaged in a
common undertaking on the same worksite as the exposing employer and is responsible for correcting a hazard is the “correcting employer.” This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices.

Controlling employers. The “controlling employer” is the employer that has general supervisory authority over the worksite, including the power to correct safety and health violations 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.

Obligations of Various Employers

Employers can be cited under more than one category, depending upon what their obligations are.

Obligations of creating employers: All employers at a site are obliged not to create hazards in violation of OSHA standards, and they can be cited for doing so regardless of whose employees are exposed to the condition.

Obligations of exposing employers: If the violation was created by another employer, the exposing employer is citable if it:

  • Knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, and
  • Failed to take steps consistent with its authority to protect its 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:

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

In extreme circumstances (e.g., imminent danger), the exposing employer is citable for not removing its employees from the job to avoid the hazard.

Obligations of correcting employers: The correcting employer can be cited for failing to exercise reasonable care in preventing and discovering violations, and meeting its obligations to correct the hazard. Correcting employers can be cited for failing to correct violations, even if no employees were exposed to the violation.

Obligations of controlling employers. 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.

In evaluating whether a controlling employer has exercised reasonable care in preventing and discovering violations, federal OSHA will consider whether the controlling employer:

  • Conducted periodic inspections of appropriate frequency.
  • Implemented an effective system for promptly correcting hazards.
  • Enforced the other employer’s compliance with safety and health requirements with an effective, graduated system of enforcement and follow-up inspections.