OSHA and theIndependent ContractorOSHA Regulations with Rules for Multi-Employers
. . . . Using Contractors Can be a Dilemma . . . .
But is this a Dilemma for HR?• OSHA falls under Department of Labor (just like EEO, ERISA, ADA, etc.)• Unlike EEO, OSHA can pierce the corporate veil! That’s right, OSHA can hold individuals personally liability for willful violations.• Who handles company’s policies, procedures and job descriptions?• Who is responsible for training employees, including supervisors?• Who is responsible for creating and implementing performance reviews and disciplinary policies?• Who is responsible for documentation and document retention of all the above? If HR handles any of the above, then Independent Contractors can be dilemma!
. . . . Multi- Employer Worksites . . . . 1. Who is primarily responsible? 2. Who created the hazard? 3. Who is exposed to the hazard? 4. Who is ultimately responsible?
. . . . The Exposing Employer . . . .►On Multi-Employer worksites, citations will usually be issued to the employer whose employees are exposed to the hazard.
. . . . Others Usually Cited . . . .(Whether or not employees are exposed) 1. The Creating Employer. 2. The Controlling Employer. 3. The Correcting Employer.
. . . . Prior To a Citation IssueDoes an Employer Have A Legitimate Defense? . . . . 1. The employer did not create the hazard. 2. The employer did not have responsibility or authority to correct the hazard. 3. The employer can demonstrate that all employees are notified of the hazard.
. . . .The Employer has Instructed Employees . . . .1. To recognize a hazard.2. Exposing Employer has taken means to protect employees from a hazard.3. Has removed employees from job to avoid citation. (In extreme circumstances)
. . . . If Exposing Employer Meets These Defenses . . . . 1. That Employer Shall Not Be Cited. 2. If All Employers With Exposed Employees Meets These Defenses, Then Only Creating and Controlling Employers shall be cited.
. . . . In Such Circumstances . . . .3. The Controlling Employer and the Hazard CreatingEmployer:Shall be cited even thoughnone of their employeesare exposed to the Hazard.
. . . . Penalties . . . .►Penalties are appropriately calculated, using:. . . . the number of all exposed employees of all the employers as the number of employees for probability assessment.
. . . . Using Contractors Can be a Dilemma . . . .1. Where did contractor liability come from?2. Is it important to pre-qualify contractors?3. What does OSHA think?4. The BIG liability question $$$$$$.
. . . . Where Did Contractor Liability Come From?. . . . Several incidents in the late 1980’s and early 1990’s led to the “OSHA Process Safety Standard.” 1. Pasadena, TX- 1989 - 23 dead, 132 injured in an explosion. 2. Cincinnati, OH- 1990 - 2 dead in an explosion.
. . . . Where Did Contractor Liability Come From?. . . .3. Sterlington, LA- 1991 - 8 dead, 128 injuries - chemical release.4. The OSHA Process Safety Standard specifically targets contractors because contractors were the cause of all these catastrophes.5. Process Safety Management 1910.119 (PSM) applies to contractors performing maintenance, repair, turnaround, major renovation and specialty work.
. . . . Contractor Liability . . . .1. OSHA applies contractor liability into Multi-Employerwork sites through: “Program Directives and Standard Interpretations”There is no OSHA “standard” on contractor liability.
. . . . Contractor Liability . . . .2. But, you can be cited and fined for Contractor Violations ifyou are an Owner or: a. Exposing Employer b. Creating Employer c. Controlling Employer d. Correcting Employer. 3. More importantly, as an owner or controlling contractoryou can be held financially liable for injuries to third parties.
. . . . Is it Important to Pre-Qualify Contractors? . . . .1. Owners and/or Controlling Contractors can be held financially liable for injuries and deaths to third parties.2. Third parties can damage your site and/or injure your employees . . . . and you can be fined by OSHA for their violations.3. You absolutely MUST pre-Qualify all Contractors!
. . . . What Does OSHA Think? . . . .1. Under the OSHA Multi-Employer Citation Policy both construction and non-construction citations shall be issued to employers whose employees are exposed to hazards. (exposing employer)2. Additionally, the following employers shall be cited, whether or not their own employees are exposed:
. . . . What Does OSHA Think? . . . .a. The employer who actually creates the hazard.(the creating employer)b. The employer who is responsible, by contract oractual practice, for safety and health conditions on theworksite and who has the authority for ensuring thatthe hazardous conditions are corrected.(the controlling employer)c. The employer who has the responsibility for actuallycorrecting the hazard.(the correcting employer)
. . . . OSHA Multi-Employer Worksite . . . .Questions . . . .1. How many different contractors typically work on one work site?2. Which contractor is liable if someone is hurt?3. Who is cited if a standard is violated?
OSHA Multi-Employer Worksite . . . .Questions4. Which category or role is the employer? a. Exposing b. Creating c. Correcting d. Controlling (Employers can have Multiple Roles)5. Does an employer meet the obligations of one of the categories or roles above?
. . . . What is an Exposing Employer? . . . .1. “An employer whose own employees are exposed to thehazard.” (If they created the hazard.)2. If the employer didn’t create the hazard it is still citable if: b. The employer knew the hazard, or would/should have known about it because they followed reasonable diligence. c. The employer failed to take steps to protect employees.
. . . .What is an Exposing Employer? . . . .3. If exposing employer does not have authority to correct hazard the employer must: a. Ask the creating or controlling employer to correct it. b. Inform all employees about the hazard. c. Take reasonable alternative protective measures.4. If there is imminent danger . . . . Remove the employees from the job!
. . . . What is a Creating Employer ?. . . .1. “The employer that caused a hazardous condition(s) that violate an OSHA standard.”2. Employers must not create violations / hazards.3. If they do create / cause violations they are citable even if only employees of other employers are exposed to the hazards.
. . . .What is the Correcting Employer? . . . .1. Common worksite and projects as the Exposing Employer2. Correcting employer is and must be responsible for correcting hazards.3. Correcting employer must exercise reasonable care in: a. Preventing and discovering violations. b. Meeting the obligation to correct hazards immediately.
. . . . What is the Controlling Employer? . . . .1. The Controlling Employer has general supervisory authority. a. The Controlling Employer has authority to correct or require others to make corrections. b. The Controlling Employer cannot accomplish this by contract or in practice.
. . . . What is the Controlling Employer? . . . .2. The Controlling Employer must use reasonable care toprevent and detect hazards. a. Lesser extent than for its own employees. b. Less frequent inspections required. c. Less knowledge of trade standards required.
. . . . What is the Controlling Employer? . . . .3. Factors that controlling employer uses to determine the inspection schedule: a. Size and scale of the project. b. Nature and pace of work, hazards change. c. How much is known about subcontractor. d. More frequent inspections are typical for unknown or previously non-compliant subcontractors. e. Less frequent inspections are required for subcontractors with strong safety and health efforts
. . . . What is the Controlling Employer? . . . .4. Factors OSHA uses to evaluate if reasonable care is evident: a. Frequent periodic inspections. b. Effective system in place to correct help hazards. c. Effective, graduated enforcement of all rules is necessary.
. . . . What is the Controlling Employer? . . . .5. Types of Controlling Employer: a. Established by a Contract. b. Dispute resolution, schedules, sequencing. c. Architects / Engineers. d. Appointed Control without Explicit Contractual Authority.
. . . . Multiple Roles . . . .1. May be an exposing employer in combination with other roles.2. May be a correcting employer if authorized to correct hazard.
. . . . OSHA Rules for Multiple Employers . . . .1. Specific rules can be found in: a. Hazard Communication 1910.1200 b. Lockout/Tag out 1910.147 c. Permit-Required Confined Spaces 1910.146 d. Process Safety Management 1910.1192. Citation Policies apply to all hazards.
. . . . Civil Liability . . . .1. Worker’s compensation only covers the employee- employer relationship.2. Subcontractor employees may sue general contractor.3. Prevention: a. Reasonable care must be taken to prevent/correct hazards. b. There must be coordination with other employers. c. Must be part of the Contract terms / practices with contractors.
. . . . Workshop . . . .1. Cawley’s Tater Flake Company hired Hightone Paints, to do repair and painting.2. During the repair work, Hightone removed a railing near a walkway, exposing Hightone employees, Cawley’s Tater Flake employees and customers to a 7 foot drop.3. Cawley’s Tater Flake put up a sign, warning the customers of the hazard.4. Who should be cited for the missing rail????
. . . . Workshop . . . .Both Hightone Paints and Cawley’s Tater Flake Co. ReceiveCitations:1. Cawley’s Tater Flakes is the exposing employer.2. Hightone also has employees exposed.3. The warning sign is not sufficient to meet a legitimate defense.
. . . . Workshop . . . .1. Ma/Pa Inc., contracted with Bumstead Plumbing to repair sewer pipes on their property.2. The contract stated that Bumstead Plumbing was responsible for all safety and health conditions related to the sewer job.3. Bumstead Plumbing dug a trench and did not provide protection against cave-ins for three of their employees working in the trench.4. Which Company(ies) receive(s) the citation?
. . . . Workshop . . . .Bumstead receives the citation. Bumstead is theexposing employer.1. Since Ma/Pa: a. Had no employees exposed. b. Did not create the hazard. c. Was not responsible for the safety and health conditions related to the trench and . . . d. Did not have responsibility for correction.2. Ma/Pa probably would not receive a citation.
. . . . Workshop . . . .1. Host operates a factory.2. Host contracts with Walton’s Service Co. for chemical service.3. Host fails to cover drums of a chemical after repeated requests to do so.4. This results in airborne concentrations of the chemical that exceed the Permissible Exposure Level (PEL).5. Which company receive the citation(s)?
. . . . Workshop . . . .Host is the cited employee.1. Host is the creating employer because it caused Walton’s employees to be exposed to the air contaminant above the PEL.2. Host failed to implement measures to prevent the accumulative air contaminant.
. . . . Workshop . . . .1. Cornhusker Inc. hired Dingy Tank Co. to clean two of their storage tanks.2. In the contract, Cornhusker Inc. maintains responsibility for the safety and health conditions of the workplace.3. During the cleaning operations, three Dingy employees enter a tank.4. Cornhusker has no confined space program.5. Which company(ies) receive(s) the citation(s)???
. . . . Workshop . . . .Both companies receive citations.1. Who is the exposing employer? Dingy Tank2. Who is the controlling employer? Cornhusker3. Who has the responsibility for safety? Both Dingy Tank and Cornhusker have responsibility to maintain safety and correct deficiencies.