Can OSHA cite your business for conditions that affect another company’s employees? Maybe.
OSHA’s Multi-Employer Citation Policy addresses who gets cited for violations that occur on a multi-employer worksite. If your company hosts staffing agency workers, that may include you.
The policy has been subjected to several legal challenges, though, based on an argument that OSHA obligations extend only to an employer’s own employees. One of these challenges is currently pending in the Fifth Circuit Court of Appeals, based on a dispute over an Austin, Texas, construction site.
While we wait for a decision, though, here’s what OSHA has to say about its authority to issue citations on multi-employer worksites:
OSHA applies a two-step process for determining whether to cite more than one employer for a hazardous condition that violates an OSHA standard.
First, it must be determined whether the business is a “creating, exposing, correcting, or controlling employer.” If so, it may have at least some obligations under OSHA. The extent of this obligations vary based on which category applies.
Second, depending on the category, it must be determined whether the employer satisfied its obligations.
A “creating” employer is one that caused a hazardous condition that violates an OSHA standard. Employers who create hazardous conditions may be cited even if the employees exposed are employees of another employer at the site.
An “exposing” employer is an employer whose own employees are exposed to a hazardous condition. If the exposing employer created the condition, it may be cited. If the condition was created by another employer, the exposing employer may still be liable if it knew (or should have known) of the condition and failed to take reasonable steps to protect its employees.
A “correcting” employer is a business engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard. This can happen when an outside business is brought onsite to install or repair equipment. The correcting employer’s duty is to exercise reasonable care in preventing and discovering violations and to meet its obligations related to correcting the hazard.
A “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. Control can be established by contract or by the actual exercise of control. A controlling employer must exercise reasonable care to prevent and detect violations on the site. The controlling employer has less of a duty with respect to other employers’ employees than it does with respect to its own employees. For example, the controlling employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has retained.
If you host employees of another business, dig deeper to examine the extent of your obligations under OSHA. Your duties may not be the same as for your own employees, but you may still have important responsibilities when it comes to maintaining a safe worksite.
© 2017 Todd Lebowitz, posted on WhoIsMyEmployee.com, Exploring Issues of Independent Contractor Misclassification and Joint Employment. All rights reserved.