Since 1999, the Occupational Safety and Health Administration (“OSHA”) has recognized how some industrial worksites can be large, busy, and complicated, particularly when construction is involved. In these situations, there may be several different employers on the jobsite at the same time, overseeing workers performing all sorts of tasks. The risk of worker accidents is high. See, Nygren, Magnus, et al. “Safety and multi-employer worksites in high-risk industries: an overview.” Relation Industrielles / Industrial Relations 72.2 (2017): 223-245.
Federal law mandates that all employers must comply with OSHA safety standards. For the construction industry, each employer is legally required to “…protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards….” 29 CFR §1910.12.
Accordingly, a federal policy on how these employers should protect their employees on the site when there are several crews at work, and how these employers are to be held accountable for failures in their legal duties of worker safety, was formed. Read, Occupational Safety and Health Administration. “Directive Number: CPL 2-0.124–Multi-Employer Citation Policy.” (1999) (“Policy”). From the Policy:
On multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard. A two-step process must be followed in determining whether more than one employer is to be cited.
Note: Indiana and Illinois both operate state-approved OSHA Plans. For details, read Workplace Safety and OSHA Regulations in Indiana and Illinois.
Who Are The Employers Under the OSHA Multi-Employer Policy?
Under the Policy, four different kinds of employers are defined when there are multiple employers on the worksite. These are (1) creating employers; (2) controlling employers; (3) exposing employers; and (4) correcting employers.
1. Creating Employer
The Policy defines the “creating employer” as the employer that caused (created) a hazardous condition violating an OSHA safety standard. Since creating employers are prohibited from creating jobsite conditions that violate federal safety regulations, any employer that creates such a “violative condition” is “citable” even if the workers who were exposed to the safety threat were not the creating employer’s employees, but employees of other employers on the worksite.
The creating employer violates a legal duty of safety and care to any worker, regardless of the employer, who is exposed to the resulting hazardous condition.
2. Controlling Employer
The “controlling employer” under the Policy is any employer with general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. Control can be established by contract or by the exercise of control in practice. These controlling employers have to exercise reasonable care to prevent and detect violations on the site.
The legal duty of care for the controlling employer is less than it is for an employer with respect to protecting its own employees. Controlling employers, as a general rule, are not legally responsible for understanding the hazards or having specialized knowledge as the employer it has hired with particular trade expertise.
3. Exposing Employer
The Policy defines the “exposing employer” as an employer whose own employees are exposed to the jobsite danger or hazard. If the exposing employer has authority to correct the danger, it must do so.
If the exposing employer lacks the authority to correct the danger, it is legally liable and citable if it fails to do three things: (1) ask the creating and/or controlling employer to correct the hazard; (2) inform its own employees of the hazard; and (3) take reasonable alternative protective measures. When things are very dangerous and pose a high risk to workers on the site (“imminent danger situations”), then this employer has a legal responsibility to pull its employees from the jobsite to keep them safe from the imminent danger.
If this exposing employer created the danger in violation of federal regulation, then it is held liable as a creating employer. However, if the danger was caused or created by another employer, then its liability depends upon 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 is employees.
4. Correcting Employer
The “correcting employer” under the Policy is an employer who has been hired for a common undertaking on the same worksite as the exposing employer where there is a hazard or danger and is the entity responsible for correcting that site hazard. These situations usually involve the correcting employer having the responsibility of installing and/or maintaining particular safety/health equipment, machinery, or devices.
The correcting employer has a legal duty to exercise reasonable care in not only (1) preventing and discovering safety violations but (2) correcting the threat in a reasonable and prudent manner.
Overlapping Liability After Construction Site Accident
Under the Policy, any one or more, or all four, of these different types of employers may be found to have violated federal safety regulations in a worker accident. For instance, on a construction site, not only the owners, but the general contractors and subcontractors may all share legal responsibility for the incident.
The Policy is clear that more than one employer on a worksite, such as a construction site, can be held to have violated legal duties of care and safety even if they did not cause or create the danger and even if their own workers were not harmed in the incident.
Claims for Justice After a Construction Worker is Killed or Hurt on the Job
In both Indiana and Illinois, most residential and commercial construction sites, as well as worksites in other industries, such as warehousing, manufacturing, etc., will have more than one employer involved in the project. These multi-employer worksites can be very dangerous because they are complex with overlapping workloads. See, e.g., our discussion about too many workers on a site at the same time in Trade Stacking Construction Accidents: The Danger of Overcrowded Job Sites.
The Policy provides that in these circumstances, no single employer can finger-point to another and avoid liability because more than one employer may be found responsible for the same dangerous condition that caused the incident.
For instance, in a construction site electrocution where a worker perished after stepping into a longstanding puddle while being exposed to a live wire, the site owner, the general contractor, the plumber, and the electrician may all be held legally accountable.
Any construction worker who is hurt on the job has the legal right to investigate the incident to determine what caused the event and which parties may have legal responsibility for the accident and its consequences. Under the OSHA Policy, several employers may have legal accountability. An investigation of the circumstances may also reveal other third parties have breached legal duties, such as manufacturers or designers of machinery and equipment.
For more, read:
- Construction Worker’s Risk of Dying on the Job Jumps 41% According to New Report
- 2021 Top Ten List of OSHA Safety Violations: Known and Unresolved Accident Dangers Facing Workers Today
- Workers’ Compensation and Third-Party Claims for On-the-Job Accidents
- The Two Main Differences Between Workers Compensation and Personal Injury Claims for Accident Victims in Indiana and Illinois
- Fatal Accidents and Wrongful Death Lawsuits in Indiana and Illinois.
Construction work is one of the most dangerous lines of work in our part of the country. Having all employers sharing legal responsibility for keeping construction sites safe for construction workers is important. Sadly, all too often these duties are breached with severe or tragic results. Please be careful out there!
