OSHA Citations Under the Multi-Employer Worksite Policy

Saturday, September 21, 2013

Did you know that you are subject to citations in the event that your subcontractors fail to comply with OSHA regulations? The use of subcontractors is a common and vital practice in construction, and one that is growing in general industry. However, subcontractors can also present problems when OSHA arrives at your facility or job site.

OSHA Directives CPL 02-00-124, Multi-employer Citation Policy (Dec. 10, 1999), and CPL 2-0.124, Multi-employer Worksite Policy, state: “On multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA Standard. There are four categories utilized to determine if one or more employers will receive citations: controlling, exposing, creating, and/or correcting.” The language used to describe each category enables OSHA to issue a citation to just about anyone, regardless of their management role (Owner, Plant Manager, General Contractor, Construction Manager, etc.).  

Over the years, the multi-employer policy has not gone uncontested.  Employers and their legal representatives have argued in litigation that the multi-employer policy is a contradiction of the OSH Regulatory Statute as it is written.  The statute states: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards.”  This argument was used in one of the most recognized multi-employer cases, Secretary of Labor v. Summit Contractors Inc.  In this case, Summit Contracting was cited as the controlling employer, even though the company had no employees exposed to the safety violation in question. After proceeding through the contest process, eventually culminating with the United States Court of Appeals, a three-judge panel held that the legal language did not prevent Summit from being cited.

In other terms, in order to avoid potential fines and/or litigation under the multi-employer policy, all employers should take the time to read and understand the responsibilities laid out in each of the four employer categories. Prior to the start of work, all responsibilities should be clarified for all subcontract employers to prevent safety hazards from going unnoticed and resulting liabilities. Defining each employer’s safety responsibilities along with preplanning to eliminate safety hazards will help minimize the worries of a possible citation under OSHA’s multi-employer policy.