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Who is responsible for what, exactly?
For those of you that have been in the construction industry for a while, the information that follows is likely to surprise you for one reason or another.
For some of you, you will think “Wait, what? That can’t possibly be true!” And for others of you, you will think “Wait, what? That’s always been the case, so how is this anything new?”
Turns out, much to my surprise, that both of those statements/feelings are completely legitimate. So, here is the back story.
From the beginning OSHA had some verbiage that permitted them to cite whoever they deemed responsible for the violation.
And in 1999 OSHA released a directive titled “Multi-Employer Citation Policy” which clarified this responsibility.
First, OSHA defines what constitutes a Multi-Employer Worksite, which is a worksite where there is more than one employer involved in the completion of a contract…. So, that sounds familiar, right? It is virtually EVERY construction project that has ever been, or will ever be completed.
Next they provide 4 specific categories of employers that are cite-able for one violation. The short definitions are:
- Creating Employer – The employer that actually caused the hazardous condition.
- Exposing Employer – The employer that actually has employees exposed to the hazard.
- Correcting Employer – The employer that is responsible for correcting the hazard (generally this responsibility is specifically assigned by contract, but not always). And finally…
- Controlling Employer – The employer that is responsible for making sure everything is done properly, on time, in budget, and most importantly safely!
If you want to read all the nitty gritty about how they may these determinations, click here. Otherwise, just understand that this thing has been out there for a long time, and it has been used, at least on occasion in some locations. Trust me on that one.
Apparently there had been a case way back in 1981 (Melerine v. Avondale Shipyards, Inc) where OSHA’s claim they could cite whoever was challenged, and based on the ruling of that lawsuit it was determined that essentially companies were only responsible for the actions of their own employees and not for the actions of anyone else, to include their subcontractors.
Maybe the 1999 Directive was OSHA’s answer to that lawsuit? Honestly, I don’t know. But because of that lawsuit the Fifth Circuit set a precedent that prevented citations from being issued based on that directive.
Fast-forward to 2015
I won’t rehash the whole thing here, but if you want to read the case, click here.
But the short version is that a General Contractor was cited by OSHA as the “Controlling Employer” for the actions of a 2nd tier subcontractor under the “Multi-Employer Citation Policy”.
As anticipated, the General Contractor contested the citation. And in the Appeals process it was determined that the General Contractor did in fact meet the definition of Controlling Employer, but because the citation was issued in the jurisdiction of the Fifth Circuit there was precedent to vacate the citation.
This decision then created yet another review. This review was of not only of this specific case, but also of all previous cases that established precedent in some way, as well as of the Multi-Employer Citation Policy itself. There are several pages of how they ultimately came to their decision, but a decision was finally reached.
The Multi-Employer Citation Policy is alive and well!
So, go back to the top and read through it if you want the full details. Otherwise, just understand that as the Controlling Employer (i.e. Contractor) you are expected to ensure that EVERY worker, regardless of whose employee they are, is working in a safe environment in a safe manner. If your Subcontractor is issued a citation, you very well could end up with a similar citation because it is YOUR RESPONSIBILITY to CONTROL your worksite.