How many employers have a presence in your facility? Do you have two or three contractors renovating a tenant’s office space, another contractor running your on-site cafeteria, some consultants evaluating your production unit, a medical group doing on-site wellness screening, and a crew of temporary employees in the warehouse? All of those workers represent different employers whose presence in your facility complicates your OSHA compliance, because they create a situation where OSHA may hold you responsible for the safety of someone else’s employees—or where another employer’s actions may impact the safety of your facility staff.
Under what circumstances could you be held responsible for hazards to another worker’s employees? Let’s take a look at OSHA’s multiemployer worksite policy and figure out who is responsible for what.
An employer on a multiemployer worksite may be a creating employer, exposing employer, correcting employer, or controlling employer. A single employer may fall into more than one category. The category that you are in will determine your safety responsibilities under OSHA.
You are the “creating employer” if your workers create a hazardous condition that violates an OSHA standard. Employers that create a violative condition are citable even if the only employees exposed are those of other employers at the site. For example, if an electrical contractor leaves an electrical box with exposed live parts open when the workers go to lunch, and a painting contractor’s employees enter the room where the box is located to perform work, the electrical contractor can be cited as the creating employer even though the exposed workers were not its own employees.
You are the “exposing” employer if your workers are exposed to a hazard that exists on a multiemployer worksite. Only exposing employers can be cited for a General Duty Clause violation. An exposing employer that also created the violation is citable for the violation as a creating employer.
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.
Exposing employers may not always have the authority or equipment to fix a hazard. They can still be cited for allowing their workers to be exposed if they fail to do each of the following:
- Ask the creating and/or controlling employer to correct the hazard.
- Inform their own employees of the hazard.
- Take reasonable alternative protective measures.
In extreme circumstances, such as imminent danger situations, an exposing employer can be cited for not removing its employees from the job to avoid the hazard.
An employer that is engaged in a common undertaking, on the same worksite as the exposing employer, and that 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. The correcting employer can be cited if it doesn’t exercise reasonable care in preventing and discovering violations and does not meet its obligations to correct the hazard. For example, a contractor that is responsible for inspecting guardrails at a construction site and replacing any missing or damaged rails can be cited for not maintaining the guardrails even if it did not remove or damage the guardrails—and even if none of its workers were exposed to the hazard created by missing or damaged guardrails.
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. If you are the site owner and operator, you are most likely the “controlling employer.”
Tomorrow, we’ll look at the responsibilities of controlling employers, which are more extensive than those of other employers at a given facility.