The Occupational Safety and Health Administration (OSHA) has issued a Directive clarifying its multi-employer citation policy. OSHA claims that it is continuing its basic policy, bygiving a more clear and detailed guidance than did the earlier description of the policy in OSHA’s Field Inspection Reference Manual. The policy applies to work sites where more than one employer may be citable for a hazardous condition that violates an OSHA standard. To determine whether an employer should be cited, the OSHA inspector is to first determine whether the employer is a creating, exposing, correcting or controlling employer. Then if the employer is in one of those categories, the inspector is to determine if the employer’s actions were sufficient to meet the obligations for it set forth in the regulations.
A “creating employer” is the employer that caused the hazardous condition that violates an OSHA standard. A creating employer is citable even if the only employees exposed are those of other employers at the site.
An “exposing employer” is one whose own employees are exposed to the hazard. If the violation was created by another employer, the exposing employer is citable if it (i) knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition, and (ii) failed to take steps consistent with its authority to protect its employees. If the exposing employer has authority to correct the hazard, it must do so. If it lacks the authority to correct the hazard, it is citable if it fails to ask the creating and/or controlling employer to correct the hazard, to inform its employees of the hazard and to take reasonable alternative protective measures.
A “correcting employer” is one who is engaged in a common undertaking, on the same work site, as the exposing employer and is responsible for correcting a hazard. The correcting employer must exercise reasonable care in preventing and discovering violations and meet its obligations of correcting the hazard.
A “controlling employer” is one who has general supervisory authority over the work site, including the power to correct safety and health violations itself or require others to correct them. Control can be established by contract, or in the absence of explicit contractual provisions, by the exercise of control and practice. A controlling employer must exercise reasonable care to prevent and detect violations on the site.
Note that a creating, correcting or controlling employer will often also be an exposing employer. Exposing, creating and controlling employers can also be correcting employers if they are authorized to correct the hazard.