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By: Michael Metz-Topodas & Jonathan Landesman, Cohen Seglias Pallas Greenhall & Furman PC
All too often, construction professionals ask about responsibility for jobsite safety violations under the Occupational Safety and Health Act when a project has multiple contractors working together. Whether it’s a private project with a general contractor and several subcontractors or a public project with multiple primes, the answer remains the same: potentially every contractor on the jobsite! To determine how much responsibility each contractor has, OSHA uses its Multi-Employer Citation Policy.
Under the policy, responsibility depends on whether a contractor falls into any of four categories of employers: Creating, Exposing, Correcting, or Controlling. Each category has separate and distinct obligations for complying with OSHA regulations and other requirements. If OSHA determines an employer falls into one (or more) of these categories, then the analysis turns to whether that employer met its compliance requirements.
OSHA provides clear and simple definitions for each type of employer:
Creating Employer: “The employer that caused a hazardous condition that violates an OSHA standard.” A Creating Employer has liability for any OSHA violation, regardless of who is exposed to it.
Exposing Employer: “An employer whose own employees are exposed to the hazard.” An Exposing Employer is liable where it knew (or should have known) about a hazard, but failed to (a) correct the hazard or (b) ask the creating contractor to correct it, warn its employees, and take reasonable protective measures.
Correcting Employer: “An employer… responsible for correcting a hazard [usually] where an employer is given the responsibility of installing [or] maintaining [or both] particular safety or health [or both] equipment or devices.” A Correcting Employer must reasonably identify and prevent violations and correct hazards as authorized; a person hired as a safety coordinator or manager likely qualifies as a Correcting Employer.
Controlling Employer: “An employer who has general supervisory authority over the worksite, including the power to correct safety and health violations,” whether by contract or practice. A Controlling Employer must exercise reasonable care to identify and prevent violations as circumstances require.
The following hypothetical examples illustrate how all these rules work in practice:
The Springmeadow High-Rise
In the process of hoisting steel framing onto a high-rise project’s fifth floor, Barton-Leesah Crane Co. damaged previously-installed safety guardrails around an elevator shaft, but no one was working on that floor at that time. Barton-Leesah representatives kept everyone away from the site once the guardrails were damaged and notified the general contractor, Tobb & Raab, Inc. Unfortunately, however, subcontractor Upa Carpentry, Inc. directed its foreman, Fred Nanders, to ignore directions to stay off the fifth floor and then to take a crew there to resume non-structural framing near the elevator shaft without any alternative fall protection. Is anyone liable for OSHA violations?
Because Barton-Leesah’s actions led to a hazardous condition—missing guardrails—it qualifies as a Creating Employer, but it likely has no liability because it kept everyone from the hazard and notified the GC, Tobb & Raab. By ordering its employees to work near the hazard without fall protection, Upa Carpentry could become an Exposing Employee and would face OSHA liability because it knew about the dangerous conditions but took no measures to protect Nanders and the other workers, such as fixing the guardrail (or getting an authorized person to fix it) or using reasonable alternative safety measures, such as personal fall arrest systems.
Following the incident with Upa Carpentry, Tobb & Raab hired Withers Smayland Safety LLC to monitor and inspect regularly all project guardrails and repair them as needed. At the end of the workday, right after Withers Smayland’s last inspection of the day, workers unloading materials accidentally damaged the top rail next to an elevator shaft but did not tell Withers Smayland. The next morning, before work resumed, OSHA arrived to inspect project guardrails and noticed the broken top rail. Is Withers Smayland liable for an OSHA violation?
Withers Smayland would not likely receive any citation for the broken guardrail. Although, as Correcting Employer, it had responsibility for repairing the broken guardrail, it could not have reasonably known about the broken guardrail before the OSHA inspection.
A Bad Breaker
In constructing a new airport hangar, Waltman-Pynk Co., as the general contractor, had responsibility for project safety under its contract with the owner. Waltman-Pynk hired Nyquist Electrical, LLC to install an outdoor electrical panel under a subcontract. Nyquist installed the panel and implemented an assured equipment grounding conductor program, as the subcontract required, but did not connect a grounding wire in the box to an outlet. Waltman-Pynk could not see this unconnected ground during its regular visual site inspections but knew Nyquist had a comprehensive safety program, had demonstrated safety compliance and technical competence on prior projects, and told Waltman-Pynk, when asked, that it installed the panel as the subcontract required. Is Waltman-Pynk liable for any OSHA violations?
Waltman-Pynk likely qualifies as a Controlling Employer, because general contractor agreements often provide for such responsibility. Waltman-Pynk, however, probably has no OSHA liability because it exercised reasonable care by hiring an electrician with demonstrated safety compliance and technical expertise. Waltman-Pynk also conducted regular inspections and inquired about whether Nyquist followed panel installation requirements under the subcontract. Under these circumstances, Waltman-Pynk likely had no obligation to test outlets to verify proper grounding.
The above examples demonstrate that on multi-employer construction projects, liability for safety violations can vary significantly with the facts and circumstances. Often, prior rulings in similar OSHA cases help determine whether citations are warranted. Making this particular fact-specific analysis requires understanding how the details and nuances of OSHA’s Multi-Employer Citation Policy have played out in these prior cases.
Therefore, for advice on handling such cases, construction professionals should consult with counsel well-versed in such analysis.
Michael Metz-Topodas is a partner in the Harrisburg office of Cohen Seglias Pallas Greenhall & Furman PC, where he focuses his practice on construction law and construction litigation, including defending clients against OSHA citations and counseling clients on OSHA compliance and workplace safety. He can be reached at firstname.lastname@example.org or (717) 234-5530
Jonathan Landesman is Co-Chair of the Labor & Employment Group at Cohen Seglias and can be reached at (267) 238-4726 or email@example.com.
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February 6, 2020