LEGALLY SPEAKING UNDERSTANDING THE MULTI-EMPLOYER WORKSITE DOCTRINE For Safety, the Law Makes You Your Brother’s Keeper Many contractors and subcontractors are aware that their failure to identify and correct safety hazards can subject not only themselves, but also other contractors and subcontractors on site, to citations by the Oc cupa t iona l Sa f e ty and He a l th Administration (OSHA). What many may not consider, however, is how the same basis for that liability, OSHA’s multi- employer worksite doctrine and associated regulations, may expose contractors or subcontractors to liability even when they did not create the hazard, they are not the contractor or subcontractor performing the work, and/or their employees are not exposed to the hazard. OSHA’s Process for Issuing Citations OSHA applies a two-step process to deter- mine whether a particular employer should be cited under the multi-employer work- site doctrine. These steps are as follows: 1. OSHA determines whether the employer falls into the definition of a “creating, exposing, correcting or controlling employer.” If the employer falls into one of these classifications, OSHA considers whether the employer fulfilled its safety obligations. Because ensuring safety is a multifaceted obligation, it is common for employers to have multiple roles on a project. 2. OSHA determines whether the employer’s actions are sufficient to fulfill its obligations. The extent of the employer’s obligations varies based upon its classification(s). Note, the extent of the measures that a general contractor must take as a “controlling employer” is less than the steps that a subcontractor must take to protect its own employees. Multi-employer Classifications Controlling Employer: The controlling employer is one who has general super- visory authority and/or control over the worksite, including the power to correct safety and health violations. Control can be established via contract (e.g., subcontracts) or, in the absence of contractual provisions, by the practical exercise of control. When evaluating whether a controlling employer has exercised reasonable care in discovering violations, OSHA considers whether the employer: • Conducted periodic inspections with appropriate frequency. • Implemented an effective system for promptly correcting hazards. • Enforced the other employers’ com- pliance with safety/health requirements with an effective, graduated system of enforcement and follow-up inspections. Courts had long questioned whether a contractor could properly be cited for hazards that an employer controlled, but did not create, and which did not threaten the employer’s employees. In November 2018, a federal circuit court of appeals answered that question. In Acosta v. Hensel Phelps Constr. Co., 909 F.3d 723 (5th Cir. 2018), the Court of Appeals for the Fifth Circuit held that OSHA could cite a cont rol l ing employer whose own employees were not exposed to the violative hazard. The court, citing an administrative law judge, reasoned that an employer “could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.” On June 4, 2019, the Court of Appeals for the D.C. Circuit followed the same reasoning in Century Communities, Inc. v. Secretary of Labor, 771 Fed.Appx. 14 (D.C. Jeanne Harrison, Associate, and Brian S. Wood, Partner, at Smith, Currie and Hancock Cir. 2019). The court held that a home builder was properly cited under multi- employer worksite regulations for electrocution injuries to a subcontractor’s employees, despite the fact that the builder was not directly supervising the work and had policies in place meant to prevent the type of hazard causing the injuries. The court found that the builder knew or had reason to know of the hazard because the builder’s superintendent had earlier observed the condition and did not correct it or direct its remediation. Creating Employer: This is perhaps an obvious category with respect to citations. The creating employer is one who creates or causes a hazardous condition that violates an OSHA standard. An employer may be cited even if the only employees exposed are those of other employers at the site. For example, a general contractor may be cited for creating a hazardous condition that results in the injury of a subcontractor’s employees. Alternatively, a subcontractor may be cited for creating a hazardous condition, which results in the injury to other subcontractors or even the general contractor’s employees. Utilizing frequent inspections to identify and prevent hazards not only improves the chances that an employer will become a creating employer, but it can also limit or prevent the creating employer’s DEEP FOUNDATIONS • SEPT/OCT 2019 • 113
