The United States Court of Appeals for the 5th Circuit has been asked to review OSHA’s twenty year old “controlling employer” policy. As many contractors are surprised to learn, under OSHA’s controlling employer policy, you can be given an OSHA citation even when your own employee is not exposed to the alleged hazard.
A. The Controlling Employer Policy
OSHA’s current controlling employer policy has been effective since 1999. That policy applies to multi-employer worksites, which means virtually all construction sites. Under the policy, OSHA can cite the creating, exposing, correcting, or controlling employer. A creating employer is one who creates the hazard to which workers are exposed. The exposing employer is one who permits his employees to be exposed to the hazard, whether it created the hazard or not. The correcting employer is one who is responsible with correcting known hazards. Finally, the controlling employer is one “who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.” Most general contractors and CM’s are controlling employers.
Under OSHA’s policy, a contractor’s OSHA safety obligations hinges on whether it is a creating, exposing, correcting, or controlling employer. The creating, exposing, and correcting contractors obligations are fairly straightforward. However, the controlling contractors obligations are more nuisanced.
If an employer creates a hazardous condition, it must immediately and effective steps to keep everyone away from the hazard and notify the party responsible for correcting the hazard. If the creating employer is also responsible for correcting the hazard, then it should immediately take steps to correct it all while creating folks away from the hazard. Pretty basic.
If the employer is the exposing employer, then a normal OSHA citation analysis applies. The employer will be cited for exposing its employees to the hazard and OSHA must show that (a) the employer knew or should have known of the condition; (b) that the specified OSHA standard applies; and (c) that the employees were actually exposed to the hazard.
If the employer is the correcting employer, then, as common sense would suggest, it should correct hazards that are made known to it. Also, the correcting employer should regularly inspect the site to make itself aware of hazards that it could correct.
The controlling employers duties are more subjective. OSHA admits that the controlling employer’s “duty of reasonable care is less than what is required of an employer with respect to protecting its own employees.” OSHA lists several factors evaluating whether a controlling employer exercised reasonable care. The one constant is that a controlling employer should take some form of affirmative steps to (a) make itself aware of hazards and (b) enforce a policy to make sure known hazards are corrected. In other words, the controlling employer cannot make controlling OSHA violations someone else’s problem. This attitude is more prevalent than you think.
What should the controlling employer do? Walk the site at regular intervals to inspect for obvious hazards, engage subcontractors with a strong record of safety, maintaining a worksite safety policy and enforce it. In other words, just having a manual is not enough.
These steps really make all the difference. I recently navigated my client through an OSHA investigation which resulted in OSHA declining to issue a citation. As much as I would like to say that my legal acumen saved the day, it was really what my client did long before my involvement, which is to credit. It regularly walked the site, it pointed out obvious hazards, it maintained a safety manual and program which it followed, and it hired subcontractors with strong safety records. We were able to present all of this to OSHA during the investigation and it is what made the difference.
B. Criticism of the Policy
The chief criticism of the policy is that it extends beyond the Congressional mandate that OSHA cite employers who expose employees to hazards. Therefore, OSHA lacks the authority to cite a contractor when those exposed to the hazard are employed by someone else. In 2007, in Sect. of Labor v. Summit Contractors, Inc., the OSHRC struct down the controlling employer policy. However, the 8th Circuit Court of Appeals overturned that decision and reinstated the controlling employer policy. Now, the 5th Circuit is asked to review the policy.
C. Takeaways
The bottom line is that every contractor on a construction site needs to be vigilant about safety in order to avoid ending up in OSHA’s cross-hairs. Even if your employees are far from the hazard, the best approach is that if you see something say something and of course document it in writing.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
