Ask the Expert, Enforcement and Inspection

Ask the Expert: Responsibility for Contractor OSHA Violations and Fines

In our latest installment of Ask the Expert, brought to you by the team of industry experts at EHS Hero®, we look at a recent question from a subscriber asking who is responsible for a contractor’s OSHA violations and fines. See what the experts had to say.

Q: Who is responsible for a contractor’s OSHA violations and fines that result?

On multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard. A process must be followed in determining whether more than one employer is to be cited.

You must determine whether you are a creating, exposing, correcting, or controlling employer. Your obligations under these categories are described below.

1. The creating employer is the employer that caused a hazardous condition that violates an OSHA standard. Employers must not create hazardous conditions. An employer that does so is citable even if the only employees exposed are those of other employers at the site.

2. The exposing employer is the employer whose own employees are exposed to the hazardous condition. Exposing employers are citable if they fail to do each of the following: (1) ask the creating and/or controlling employer to correct the hazard; (2) inform its employees of the hazard; and (3) take reasonable alternative protective measures. In extreme circumstances (e.g., imminent danger situations), the exposing employer is citable for failing to remove its employees from the job to avoid the hazard.

3. The correcting employer is 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 given the responsibility of installing and/or maintaining particular safety/health equipment or devices. The correcting employer must exercise reasonable care in preventing and discovering violations and meet its obligations of correcting the hazard.

4. The controlling employer 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. 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.

Factors that affect how frequently and closely a controlling employer must inspect to meet its standard of reasonable care include:

  1. The scale of the project;
  2. The nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses;
  3. How much the controlling employer knows both about the safety history and safety practices of the employer it controls and about that employer’s level of expertise.
  4. More frequent inspections are normally needed if the controlling employer knows that the other employer has a history of non-compliance. Greater inspection frequency may also be needed, especially at the beginning of the project, if the controlling employer had never before worked with this other employer and does not know its compliance history.
  5. Less frequent inspections may be appropriate where the controlling employer sees strong indications that the other employer has implemented effective safety and health efforts. The most important indicator of an effective safety and health effort by the other employer is a consistently high level of compliance. Other indicators include the use of an effective, graduated system of enforcement for non-compliance with safety and health requirements coupled with regular jobsite safety meetings and safety training.

In this specific case, you would most likely be considered a controlling employer, unless you have known, uncontrolled hazardous conditions in which you are exposing your contractor to. Your contractor would be considered a creating and/or exposing employer.

Responsibility for an OSHA fine would be based on your reasonable care to prevent and detect violations on the site, as well as any creating or exposing actions of you and/or your contractor.

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