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OSHA Multi-Employer Citation Policies

Texas Lawyers Protecting & Defending Against OSHA Citations

Worksites with more than one employer, such as construction sites, can be chaotic and confusing.

For example:

On a construction site, a general contractor, subcontractors, and other employers may all have workers on the site. Determining which employer is responsible for violations of federal workplace safety law can be complex.

What Is OSHA’s Multi-Employer Policy?

OSHA’s Multi-Employer Citation Policy (CPL 2-0.124) generally means:

  1. More than one employer on a on multi-employer worksites can be cited for a hazardous condition that violates an OSHA standard;
  2. Any employer that exposes an employee to hazards created by unsafe conditions may be subject to a citation, even if the employer did not create the hazard;
  3. An employer can be cited for an OSHA violation even if its own employees are not exposed to a hazard if the employer qualifies as a controlling, correcting, or creating employer.

What Is a Multi-Employer Worksite?

While OSHA’s multi-employer policy is commonly applied to construction projects, it applies to all work places, not just construction sites. However, it does not always mean any employer on a job site with multiple employers is subject to the multi-employer citation policy.

Whether a worksite is considered a “multi-employer worksite” depends not on whether a worksite meets any particular definition, but rather the job tasks performed by each employer.

OSHA uses a two-part evaluation to determine whether more than one employer may be cited for a workplace hazard:

  1. Determining the role of the employer (i.e. whether the employer is a “creating, exposing, correcting, or controlling” employer); and
  2. Determining whether the employer met their obligations with respect to OSHA requirements (the extent of an employer’s obligations vary depending on their role as a creating, exposing, correcting, or controlling employer).

If there are multiple employers on a job site, exposure to a citation under the multi-employer policy will require use of the analysis above to determine an employer’s role and whether their actions were sufficient in meeting applicable OSHA requirements. This ultimately means, as is the case in any OSHA investigation, that citations under the multi-employer policy are based on the particular facts of each case, and that an employer’s duty to identify and correct hazards may extend further than most believe.

It is worth noting that while OSHA does not have any specific definition as to what constitutes a multi-employer worksite, various industry groups have issued recommendations about the policy. The Advisory Committee on Construction Safety and Health (ACCSH) for example, defines a multi-employer worksite as:

“A worksite at which two or more entities are performing tasks that will contribute to the completion of a common project. The entities may or may not be related contractually. The contractual relationship may or may not be in writing. On multi-employer worksites, both in construction and industry, more than one employer may be citable for the same condition...."

OSHA has made clear that it has not adopted this definition nor any other definition from any industry-specific advisory committees, and that it determines whether more than one employer is citable based on its two-part analysis.

Assessing Your Exposure to OSHA’s Multi-Employer Citation Policy

At Hendershot Cowart, P.C., our OSHA defense team advises employers on all aspects of protecting and defending against OSHA citations, including citations issued under the multi-employer policy. Our multi-employer policy lawyers serve clients across Texas and beyond across a range of industries, including:

  • Construction
  • General Industry
  • Agriculture
  • Maritime

We’ve been trusted by employers across the nation since 1987 because we have a proven record of resolving complex, difficult legal situations. To learn more about assessing your exposure and our services for OSHA compliance and defense, call or contact us online.

How Does OSHA Issue Citations on a Multi-employer Worksite?

When OSHA finds a hazardous condition on a worksite, it follows a two-step process to determine who to cite, and whether more than one employer may be cited under its multi-employer policy.

OSHA’s first step is to determine whether an employer is a Creating, Exposing, Correcting or Controlling employer (and an employer may have multiple roles). The definitions of these roles are:

  • The Creating Employer caused the hazardous condition that violated an OSHA standard.
  • The Exposing Employer is the employer whose own employees are exposed to the hazard.
  • The Correcting Employer is the employer on the worksite responsible for correcting a hazard.
  • The Controlling Employer is the employer with general supervisory authority over the worksite, including the power to correct or require others to correct hazards.

Second, OSHA determines if the employer met its obligations on the worksite. If the employer failed to fulfill its obligations, then it may be cited for a violation of that standard.

The Obligations of Each Employer

Depending on its role, an employer holds varying responsibilities for maintaining OSHA standards on a worksite.

  • The Creating Employer. All employers have an obligation to maintain a safe working environment. Failure to do so is citable, even if the only employees exposed are those of other employers.
  • The Exposing Employer. If the Exposing Employer created the hazard, it is cited as the Creating Employer. If the hazard was created by another employer, the Exposing Employer can be cited if it knew of the violation or failed to exercise due diligence to discover the violation and failed to take corrective action.
  • The Correcting Employer. A citable Correcting Employer fails to exercise reasonable care to prevent or discover a hazardous condition when it has the duty to do so.
  • The Controlling Employer. A controlling employer can only be cited if it has failed to take reasonable care to prevent and detect violations on the site. The extent of the measures that a controlling employer must take is less than what is required of an employer to protect 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.

Depending on the circumstances, any of these employers may be cited for workplace safety violations found during an OSHA inspection.

What It Means for You

It's important for employers to understand their responsibilities on multi-employer work sites and to consult an experienced OSHA attorney before commencing work on a multi-employer site. As the multi-employer policy makes clear: your responsibility to maintain a safe and healthy worksite and identify and address hazards may go further than you think.

If your company has been cited for a violation on a multi-employer site, Hendershot Cowart, P.C. can also help defend against OSHA citations. Our experience has made us well versed in an array of defense strategies.

Speak With a Multi-Employer Citation Policy Lawyer

Hendershot Cowart, P.C. has represented employers in matters of OSHA law and compliance for over 30 years, and understand the complexities of workplace regulations – especially as they relate to multi-employer worksites.

If you have questions about a potential matter, call or contact us online.

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