Financial Returns dictate that Safety on the job and in the workplace should be one of your company’s top priorities. In the 2018 Workplace Safety Index, Liberty Mutual estimates that employers paid more than $1 billion per week for direct workers’ compensation costs in 2015.
Implementing an effective safety and health management system significantly reduces costs associated with workers’ compensation payments, medical expenses and lost productivity. In addition, employers often find that process and other changes made to improve workplace safety result in significant improvements to both productivity and profitability.
OSHA is tasked with assuring safe working conditions by performing inspections and taking enforcement actions against non-compliant employers. This task becomes much more complicated – for OSHA and the companies they are overseeing – when a job-site has multiple employers, as is typically found at most construction sites. In order to provide some clarity to the issue, OSHA developed the Multi-Employer Citation Policy in 1999. The directive is aimed at cases where more than one employer could be citable for hazardous conditions that violate an OSHA standard.
OSHA’s Four Employer Categories
To determine whether an employee should be cited, the policy requires an OSHA inspector to first categorize the employers involved and then decide whether they have met their respective obligations. The four categories, which are not mutually exclusive, are listed below:
- Creating Employer
- Exposing Employer
- Correcting Employer
- Controlling Employer
The employer that caused a hazardous condition that violates an OSHA standard. They are citable for their violations—even where the only employees affected are those of a separate employer.
Ex. Employer A hoists materials onto a second floor, destroying a section of perimeter guardrails. Employer A would be the Creating Employer since its workers were the ones to create the hazard.
An Exposing Employer is an employer whose employees are exposed to a hazard. They are citable even if they knew of the hazardous condition, or would have known of the hazard with reasonable diligence and failed to take steps to protect employees. If the exposing employer has the authority to correct the hazard, it must do so. If it lacks the authority to correct the hazard, it can be cited if it fails to ask the creating or controlling employer to correct the hazard, fails to inform its employees of the hazard or fails to take reasonable alternative protective measures. Where there is imminent danger, an exposing employer is citable for failing to remove employees from the job to avoid the hazard.
Example: Employer B is responsible for inspecting and cleaning the second-floor work area near the section of damaged guardrails. Employer B is the Exposing Employer since its employees are exposed to the fall hazard.
An employer engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard. They are usually employers responsible for installing and maintaining safety equipment or devices. The correcting employer must exercise reasonable care in discovering and preventing violations and meet its obligations to correct the hazard.
Ex. Employer C, a carpentry contractor, is hired to erect and maintain the guardrails throughout the project. Employer C is a Correcting Employer since it is responsible for constructing and maintaining the guardrails and other fall protection equipment.
An employer who has general supervisory authority over the worksite, including the power to correct safety and health violations or require others to correct them. Control may be established by contract or by the exercise of control in practice. A controlling employer must exercise reasonable care to prevent and detect OSHA violations.
Example: Employer GC contracts with Employers A, B and C on the project and has general supervisory authority over the worksite, including the power to correct safety and health violations or require others to correct them. Employer GC would be the Controlling Employer on the site.
Factors that affect how frequently and closely a controlling employer must inspect to meet the above-mentioned standard of reasonable care include:
- Scale of the project
- Nature and pace of the work
- Controlling employer’s knowledge about the safety history and safety practices of the employer it controls and about that employer’s level of expertise
OSHA’s Burden Of Proof
In order for OSHA to issue a citation, they need to demonstrate that you as an employer fall into one of the four categories defined above. If you do not fit into any of the categories, OSHA cannot issue a citation; however, if you do fall into one of the four categories, OSHA will proceed to determine if the employer’s actions were sufficient to meet the required obligations for that category. And if the obligations are shown not to have been met, a citation will be forthcoming.
The common theme that all the defense tactics have in common is the importance of your documentation. OSHA is a visual entity. If they cannot see proof of safety training/programs, meetings, observations and audits/inspections, then they did not exist and/or happen in their eyes.
If you find yourself on the wrong end of an OSHA violation, there are several defenses that one can take.
Along with making your worksite safer and more productive, Safety Indicators can also help ease the process of OSHA compliance. Store all your audits, inspections, reports and other safety program information in one secure, centralized location. Easily access or share your safety documentation with the touch of a button. Contact us to learn how our cloud-based solution will save you time and money when it comes to your safety program.