Most school construction projects in Ohio are completed using multiple contractors and numerous subcontractors. This is the result of the State’s statutory requirements that multiple prime contractors be used on school construction projects. Contractors and subcontractors should be thoroughly familiar with their responsibility to protect employees working for other contractors on the site and employees of their own subcontractors.

For worksites just like these school construction sites, the Occupational Safety and Health Administration developed a multi-employer citation policy and subsequently provided clarifications to that policy in 1999. The policy basically states that more than one employer may be cited for a hazardous condition that violates an OSHA standard. 

OSHA uses a two-step process to determine whether more than one employer should be cited. The first step is to determine the roles of the individual employers. The roles include the employer who created the hazardous condition (creating employer), the employer who exposes its own employees to a hazardous condition (exposing employer), the employer who is responsible for correcting a hazard and/or maintaining particular safety equipment (correcting employer), and the employer who has the general supervisory authority over the website (controlling employer). 

In many cases an employer can face a citation even if its own employees are not subjected to a hazardous condition. Where employees are subjected to a hazardous condition but an employer other than their own caused that hazard, the employer can still face citations for the hazardous condition. The controlling employer can be exposed to citations where its contract explicitly establishes that the employer has authority to control or, where the contract fails to spell out authority over worksite safety, where actual practice shows the employer exercises control. 

Once an employer’s role is determined, the next step is to determine if the employer’s actions were sufficient to meet the obligations imposed by OSHA requirements. “The extent of the actions required of employers varies based on which category (of employer) applies.” 

Creating employers. The analysis for a creating employer is simple: “Employers must not create violative conditions.” Create a condition that violates an OSHA standard, and you will earn a citation. 

Exposing employers. An exposing employer will be cited if it “(1) knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, and (2) failed to take steps consistent with its authority to protect its employees.” Where an exposing employer has authority to fix a hazardous condition, it must do so. Where the exposing employer lacks such authority, it must “(1) ask the creating and/or controlling employer to correct the hazard; (2) inform its employees of the hazard; and (3) take reasonable alternative protective measures.” In extreme circumstances the exposing employer must remove its employees from the job.

Correcting employers. A correcting employer is required to “exercise reasonable care in preventing and discovering violations and meet its obligations of correcting the hazard.” 

Controlling employers. The controlling employer “must exercise reasonable care to prevent and detect violations on the site.” The controlling employer is not required to take all of the protective measures that are required of an employer that is protecting its own employees. The controlling employer would not be required to inspect as frequently in some cases, and the controlling employer might not have the same knowledge of the applicable standards or trade expertise as the exposing employer would have.

The Citation Policy goes on to describe factors related to the “reasonable care” standard. The factors relate to how “frequently and closely a controlling employer must inspect” to meet the reasonable care standard. It also illustratee how each employer would be evaluated. Read the full text of the Multi-Employer Worksite Policy.

National Census Shows Construction
Takes the Lead in Fatal Injuries

Every year since 1992, the Bureau of Labor Statistics has conducted a Census of Fatal Occupational Injuries. On August 10th the Census for the 2005 calendar year was released. It also included preliminary data for that year. 

Construction-related fatalities outnumbered those in any other industry, with a total of 1,186 fatal work injuries in 2005. This number was higher, by more than 300 fatalities, than that for the next industry sector. The number of construction industry fatalities did fall by 4% when compared to the 2004 Census data, however. 

Within the construction industry, there were increases in the number of fatalities associated with residential building construction, utility system construction, and highway, street, and bridge construction. There was a decline in the number of fatalities associated with specialty contractors. The total number of fatalities in Ohio, regardless of industry sector, also declined from 202 in 2004 to 168 in 2005. 

OSHA’s related news release and a link to the 2005 Census data.