1.4 Multi-Employer Worksite Citation Policy

Multi-Employer Worksite Citation Policy

On construction projects, it is rare for a single employer to perform all work. Instead, general contractors, construction managers, prime contractors, and dozens of specialty subcontractors work side-by-side. Recognizing this complexity, OSHA established the Multi-Employer Citation Policy under OSHA Directive CPL 02-00-124. Under this policy, more than one employer can be cited for a single hazardous condition on a worksite.

The Four Categories of Employers

To determine which employers are liable for a hazardous condition, OSHA categorizes employers based on their role in creating, exposing, correcting, or controlling the hazard. An employer may fall into more than one of these categories.

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Evaluating Citability: The Step-by-Step Logic

When an OSHA inspector identifies a hazard on a multi-employer worksite, they follow a two-step logic process for each employer to determine if a citation is warranted:

1. Creating Employer Obligations

A creating employer has a duty to work safely and avoid introducing hazards to the worksite.

• Example: Subcontractor A (concrete contractor) knocks down a guardrail and leaves the edge unprotected. Subcontractor A is the creating employer.
• Citability: If Subcontractor A leaves the hazard open, they are citable even if only Subcontractor B's employees are exposed to the fall hazard.

2. Exposing Employer Obligations & Defenses

An exposing employer has the primary responsibility to protect its own workers. If an exposing employer's workers are exposed to a hazard that the employer did not create, the employer will still be cited unless they can establish the Exposing Employer Defense. To meet this defense, the employer must prove:

1. They did not create the hazard.
2. They did not have the authority or capability to correct the hazard.
3. They specifically asked the creating and/or controlling employer to correct the hazard.
4. They took reasonable alternative protective measures (e.g., requiring workers to wear PPE, relocating workers, or enforcing a safe distance).
5. They had no actual or constructive knowledge of the hazard (exercised reasonable diligence to discover it).

3. Correcting Employer Obligations

A correcting employer is specifically tasked with installing and maintaining safety equipment or correcting hazards.

• Example: A carpentry subcontractor hired specifically to install and maintain perimeter guardrails and floor hole covers.
• Citability: If the correcting employer fails to inspect and maintain these safety systems with reasonable care, they are citable, even if their own employees are not exposed.

4. Controlling Employer Obligations: The "Reasonable Care" Standard

A controlling employer has general supervisory authority over the worksite. They are not expected to prevent every violation or inspect the site constantly, but they must exercise "reasonable care."

• OSHA evaluates whether a controlling employer exercised reasonable care based on:
  • Scale and Nature: The complexity and size of the project.
  • Hazard Severity: The danger level of the work being performed (e.g., crane lifts vs. painting).
  • Subcontractor Safety Record: Whether they checked the subcontractor's safety performance before hiring.
  • Inspection Frequency: Whether they conducted regular, documented safety inspections.
  • Enforcement: Whether they have a progressive safety enforcement program and actively stop work for serious hazards.

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Case Studies & Practical Scenarios

Case Study A: The Open Shaft

• The Scenario: A mechanical subcontractor cuts a hole in a concrete floor to run piping but does not cover it or install guardrails. The general contractor (GC) does not inspect the area. Later that day, an employee of a painting subcontractor falls through the hole.
• OSHA Analysis:
  • Mechanical Subcontractor (Creating Employer): Citable. They created the hazard and did not cover or guard it.
  • General Contractor (Controlling Employer): Citable. As the controlling employer, they failed to exercise reasonable care to detect and correct the hazard (regular inspections would have revealed the floor hole).
  • Painting Subcontractor (Exposing Employer): Citable if they knew of the hole and allowed their employees to work near it without alternative protection. If the hole was hidden or they had no way of knowing, they may establish the exposing employer defense.

Case Study B: The Defended Subcontractor

• The Scenario: A masonry subcontractor arrives at a scaffold erected by a scaffolding contractor (correcting employer). The masonry foreman notices that the scaffold lacks midrails. The masonry foreman instructs their crew to stay off the scaffold, immediately calls the GC superintendent, sends an email requesting immediate correction, and keeps their crew on ground-level work.
• OSHA Analysis:
  • Masonry Subcontractor (Exposing Employer): Not Citable. They successfully utilized the exposing employer defense by refusing to expose their workers, notifying the controlling employer, and keeping workers away from the hazard.
  • Scaffolding Contractor (Correcting/Creating Employer): Citable. They failed to build the scaffold to standard.
  • General Contractor (Controlling Employer): Citable if they had notice of the hazard or failed to conduct inspections that would have detected the missing midrails.