Multi-employer worksites present unique challenges when it comes to safety, communication, and compliance. With multiple contractors, subcontractors, and sometimes even temporary workers operating on the same site, responsibilities can quickly overlap and so can risks.
On many worksites, especially large construction sites, crews from multiple companies often work side by side. It’s crucial they know how to work safely together and understand who is responsible for coordinating the jobsite.
OSHA Regulations
OSHA has established that on multi-employer worksites, more than one employer may be cited for a hazardous condition that violates an OSHA standard. Even if the employer did not cause the violation, or even if their employees were not involved they may still receive a citation. OSHA uses a two-step analysis to determine whether one or more employers will be cited. This process is known as OSHA’s “Multi-Employer Citation Policy,” and is outlined in their directive number CPL 2-0.124.
Employer Rules
When OSHA analyzes a worksite and identifies a violation, it classifies each employer into one of four specific roles. OSHA can cite employers in any of these roles for violations. Additionally, employers can also fulfill more than one of their roles. These 4 specific roles include:
- Creating Employer: The employer that caused a hazardous condition that violates an OSHA standard, exposing its own or other employees to a hazard
- Exposing Employer: An employer whose own employees are exposed to the hazard
- Correcting Employer: An employer engaged in a common undertaking on the same worksite as the exposing employer, who has a duty to prevent or identify hazards, and fails to exercise reasonable care in doing so
- And, Controlling Employer: An employer with general supervisory authority over the worksite, including the power to correct safety violations or require others to do so
Two-Step Process
The multi-employer regulation is a two-step analytical process OSHA uses to determine whether more than one employer is to receive a citation. This two-step process includes:
- Step 1: Determine whether the employer is a creating, exposing, correcting, or controlling employer
- And, Step 2: If the employer falls into one of the four categories, it has obligations with respect to OSHA requirements. Step two is to determine if the employer’s actions were sufficient to meet those obligations. The extent of the actions required of an employer varies based on which category applies
Subcontractors
Subcontractors on the jobsite fall under the jurisdiction of the primary contractor. The primary contractor who employed the subcontractor is responsible for vetting the subcontractor. If the subcontractor is responsible for an OSHA violation, both the subcontractor and the primary contractor may receive a citation.
If the primary contractor or the workers of the primary contractor are not on site when a violation occurs, OSHA may still issue citations to the primary contractor as being the controlling employer. The primary contractor is still responsible for the overall safety and health of workers on the jobsite. Be advised that the primary contractor is responsible for all crews regardless of subcontractor level.
The Controlling Employer
The controlling employer(s) is the main point of contact for the worksite. This person must actively ensure that workers follow safe work practices. A controlling employer must exercise reasonable care to prevent and detect violations on the site.
As defined by OSHA, there are different ways of identifying the controlling employer, including:
- Control Established by Contract: In this case, the employer has specific contractual responsibility to control safety at the worksite
- Control Established by a Combination of Other Contract Rights: Even without an explicit contract giving safety authority, an employer may still be considered a controlling employer. Broad contractual rights, such as resolving subcontractor disputes, setting schedules, and determining construction sequencing, can establish control, since these decisions directly affect safety
- Architects and Engineers: Architects, engineers, and other entities qualify as controlling employers only when their involvement in a construction project gives them broad responsibility for worksite safety
- And, Control Without Explicit Contractual Authority: Even where an employer has no explicit contract rights with respect to safety, an employer can still be a controlling employer, IF, in actual practice, it exercises broad control over subcontracts at the worksite
Evaluating Reasonable Care
When evaluating whether a controlling employer has exercised reasonable care in preventing and discovering violations, consider questions, such as whether the controlling employer:
- Conducted periodic inspections of appropriate frequency
- Implemented an effective system for promptly correcting hazards
- And, enforces the other employer’s compliance with safety and health requirements with an effective system of enforcement and follow-up inspections
Conclusion
All contractors, subcontractors, and workers must stay alert to hazards on the worksite. On a multi-employer site, the controlling employer oversees overall worker safety, even for employees of other companies. If OSHA identifies a violation, it can cite both the controlling employer and subcontractors, even if their workers are not on site.