February 12th, 2018
Navigating Through OSHA’s Multi-Employer Worksite Policy
Door and window professionals often ask me what factors go into determining whether they can be held liable for regulatory violations or injuries that occur on a jobsite. When I’m asked whether someone violated an Occupational Safety and Health Administration (OSHA) safety standard, the first step in my analysis is to determine my client’s OSHA Multi-Employer Work Site Policy classification.
OSHA classifies employers as controlling, creating, exposing, and/or correcting when more than one employer is present on a jobsite. Projects can be as small as one installer replacing a single window in a residential home. Or, they can be as large as a 100-story skyscraper in a metropolitan city with hundreds of different companies and their employees performing various tasks from start to finish. When more than one employer is present and an injury occurs or an OSHA regulation is violated, employer classification often determines liability.
Each classification has specific safety duties and responsibilities. It’s important to note that glazing professionals can be tagged with multiple employer labels depending on the nature of the work they perform and the obligations they take on (whether planned or not). There are several characteristics that can help determine employer classification. These include the following: scale of the overall project; inspection frequency; trade knowledge and expertise; and the type and duration of potential hazards. Here’s a closer look.
Often, but not always, this is the general contractor on the project. Controlling employers have general supervisory authority over the project, the power to correct safety and health violations, and the power to authorize others to correct such hazards and violations. Employers other than general contractors often become controlling employees when the general contractor authorizes a subcontractor to control or supervise the work of another subcontractor. All controlling employers should have comprehensive custom safety policies and procedures for each and every jobsite, as they often have the most liability on a project. It’s usually very difficult to prove controlling employers had zero fault following OSHA violations or workplace injuries.
In order to be labeled a creating employer, an agent of the company must have caused the OSHA violation or hazard on the jobsite that resulted in injury. This type of employer can be held liable regardless of the identity of the party sustaining injury. Creating employers are responsible for maintaining the area of the jobsite they frequent and where they regularly conduct work. I recommend glazing industry professionals draft a standardized safety plan and conduct regular scheduled meetings with their staff as the nature of the jobsite changes to reduce the likelihood of violations or injuries.
This is the broadest classification and presents the greatest risk for unanticipated liability. Even though another company may have caused the OSHA violation or hazardous condition, you may still be liable for exposing your employees to the hazardous area or non-compliant jobsite. As a fenestration industry professional, if you know a particular jobsite has OSHA violations, you should direct your employees to discontinue their work until the violation is remedied. The same analysis applies to dangerous conditions or known hazards. The best way to reduce the potential for liability as an exposing employer is to conduct frequent inspections of the jobsite and to educate employees to speak up and notify controlling or creating employers of violations.
Lastly, the correcting employer is responsible for doing just that, correcting the hazard or violation. They are often individuals sent specifically by an employer to remedy a violation or fix an existing hazard. If the violation or hazard goes uncured, the responsible employer is in essence labeled a non-correcting employer and will be held liable for allowing the condition or violation to persist on the jobsite.
Most importantly, know your role. If you’re the general contractor for a particular job, you’re most likely the controlling employer and must supervise and delegate all the necessary responsibilities accordingly. If your company is subcontracted to install the glazing on the jobsite, you’ll likely be labeled a creating, exposing or correcting employer, or some combination thereof at various stages of the project. In the event hazardous conditions are present or OSHA violations are found, you may be responsible based on the scope of your obligations and duties. In addition, the OSHA violations may lead to costly civil litigation. Knowing your role can limit your liability, but it will never eliminate it. Develop a plan, preferably in writing, that clearly and effectively educates your employees on what to do when they encounter OSHA violations or dangerous conditions on the jobsite. It may very well make or break your company’s future.
Charles A. “Chip” Gentry is a founding member of Call & Gentry Law Group in Jefferson City, Mo. He can be reached at firstname.lastname@example.org.