Multi-Employer Sites- Joint Liabilities

Most jobsites encountered have more than one contractor involved. If you're the only contractor on a particular jobsite, and a CSHO [Compliance and Health Safety Officer] discovers violations, you would receive any citations and fines- simple.

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However, the way OSHA treats jobsites with more than one contractor may surprise you.

For instance general contractors who disregard hazards created by other subcontractors onsite may find themselves with the same citation as well! In most cases, immediate [written if necessary] notification of any violations to the controlling contractor onsite to quickly eliminate the hazard will not only limit possible worker injury, but also prevent widespread citations passed out to all contractors onsite regardless of their perceived involvement.

Lets take a look at a hypothetical situation that could occur on a jobsite. Say a construction project has a construction manager and a general contractor. An excavation subcontractor opens up for an 8' deep foundation, which is then poured. Before backfill is placed however, the plumbing contractor places a 2x10 board across the 8' deep excavation for a walkway. Various subcontractors then walk across the board to gain access to the building interior to perform work. A CSHO observes the various trades crossing the makeshift ramp, contacts the construction manager, and conducts an inspection resulting in the citation of this single violation.

Question: Which contractors could be cited?
Answer: Every contractor onsite could be cited!

OSHA has defined who on a multiple-contractor jobsite can be cited for a single violation. This comes from the 29 CFR Part 1926.16 (a) through (d) titled "Rules of Construction". The following applicable statements illustrate OSHA's position with regard to each contractor's responsibility concerning safety hazards.

(a) "...the prime contractor and his subcontractors may...make an agreement...thus relieving the subcontractors from the actual but not any legal, responsibility..."

(a) "...In no case shall the prime contractor be relieved of the overall responsibility for compliance with the requirements of the part [the OSHA Act] for all work to be performed under the contract."

(b) "...the prime contractor assumes all obligations under the [OSHA Act] ..., whether or not he subcontracts any part of the work."

(c) "...[the subcontractor] also assumes responsibility for complying with the [the OSHA Act] with respect to [his portion of work]. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor...shall be deemed to have joint responsibility."

(d) "Where joint responsibility exists, both the prime contractor and his subcontractor[s] regardless of tier, shall be ... subject to [the OSHA Act]."

OSHA has interpreted the above statements to define classes of contractors which can be cited for a violation. There are four types:

The "Exposing Employer"
This is defined as the contractor who by action or inaction allows his workers to be exposed to a hazard. In the hypothetical case described before, any workers crossing the makeshift ramp would allow OSHA to cite [and fine!] their employers- even if their employer had no knowledge of this happening!

The "Creating Employer"
This is defined as the contractor who actually created the hazard. In this case, the plumbing contractor or perhaps the excavation contractor would be determined as having created the hazard by not backfilling, or at least providing a walkway with handrails.

The "Controlling Employer"
This is defined as the contractor who has the authority to ensure that hazardous conditions are corrected. In this case the construction manager would have that role and could be cited for not having the hazard corrected.

The "Correcting Employer"
This is defined as the contractor who has the responsibility to actually correct the hazardous conditions. In this case the general contractor would likely have had that role and could be cited for not correcting the hazard..

As you can see in this example, many contractors can be cited and fined for each violation, depending on a contractor's involvement- even if peripheral.

Now, what can you do to protect yourself from getting caught "in the net" with other contractors when violations are discovered? Again OSHA has developed a list of items as a defense to a citation- however, ALL ITEMS MUST APPLY:

The contractor did not create the hazard.

The contractor did not have the responsibility or authority to have the hazard corrected.

The contractor did not have the ability to correct or remove the hazard.

The contractor notified other contractors in control of the specific hazards to which it's workers were being exposed to.
The contractor has instructed it's workers to:
Recognize the hazard.
How to avoid it.
Where feasible- use protection from it.
Remove themselves from the jobsite.

From a review of the above items it would seem that each contractor onsite in effect has to make their own safety inspection of the jobsite prior to, and during the duration of work.
While this may seem impractical, safety is indeed everyone's concern. Contractors who show written evidence of a practice of notifying other contractors of their potential safety hazards may go a long way in a favorable finding from a CSHO when handing out citations.

Another way to help your position whether you're a general or subcontractor is to have safety as a regular topic of discussion. Almost every construction project has either weekly or monthly progress meetings. This is an excellent time for you to place jobsite safety on the agenda as an item to be discussed. This is where new hazards seen by any contractor can be brought out, and a plan to quickly eliminate it accomplished. Any new hazardous materials can be determined, the jobsite MSDS sheets updated, and all contractors brought up to speed as to what hazardous materials are onsite [another OSHA requirement].

All contractors onsite should work together to promote safety. At times any contractor can "slip up", and a word from the general or construction manager can keep everyone onsite not only safe- but safe from possible collateral citations. Looking out for each other should be part of any construction project.

Are your workers storing materials correctly?

An OSHA safety course and safety training for your construction site can help keep you from having to deal with these issues. Contact us today for a materials safety manual for your jobsite.