Multi-employer OSHA Liability on the Construction Work Site

This article appeared in the Blue Ridge Business Journal on January 29, 2007.

On a construction site, who can potentially be cited for the violation of an OSHA standard? Can a general contractor, architect, or even the owner of the project be cited if another entity’s employee is injured or exposed to a dangerous condition? Is the Virginia Department of Labor & Industry presently issuing such citations?

Under regulations adopted by the Virginia Department of Labor & Industry relating to “multi-employer worksites,” any number of entities working on a construction site can be cited for an OSHA violation, even if that entity does not have an employee injured or placed at risk of harm. Under this regulation, a citation will be usually first be “issued to an employer whose employee is exposed to an occupational hazard.” That entity is referred to as the “Exposing Employer.”

In addition, though, other entities with a presence or involvement at the site may be cited under certain circumstances. If an employer is the one “who actually creates the hazard,” it can be cited as the “Creating Employer.” That could be, for example, a subcontractor that incorrectly erects scaffolding on a project for others to use.

If an entity is the one “responsible…for safety and health conditions on the entire worksite, and has the authority for ensuring that the hazardous condition is corrected,” that employer can be cited as the “Controlling Employer.” A typical example is a general contractor who fails to correct a violation by a subcontractor. In some cases, even design professionals with a presence on a construction site have been cited under this approach. Owners of a construction site have also been cited where, for example, they control dangerous apparatus located nearby to on-going renovation work.

Note, however, that under the federal OSHA guidance that should apply to any such Controlling Employer citation in Virginia, it has been clarified that “the measures that a controlling employer must take to satisfy its duty to exercise reasonable care to prevent and detect violations is less than what is required of an employer with respect to protecting its own employees.” This evaluation takes into account a number factors, including whether the controlling employer, usually a general contractor, has exerted sufficient oversight of the exposing employer, usually a subcontractor, based upon the subcontractor’s safety sophistication and safety history.

A third category of “other” entities who can be cited is referred to as the “Correcting Employer.” That would be the entity “who has the responsibility for actually correcting the hazard,” but failed to do so, thus subjecting someone else’s employee to injury or risk of harm.

For a period of time from mid-2005 through September of 2006, the Virginia Department of Labor & Industry stopped issuing “multi-employer citations,” as the result of a court ruling that held that such an approach did not have a statutory or regulatory basis in Virginia. With the September, 2006 adoption of a “multi-employer citation” regulation, Controlling, Creating, and Correcting Employers are once again at risk for being cited for OSHA violations where they do not have employees injured or subjected to a risk of harm.

Understanding the regulation (which does not just apply to construction projects), educating project and field personnel, good recordkeeping, and communication with other entities working on the job site with you are all crucial to avoiding multi-employer worksite OSHA liability.

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These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.