A popular question concerns responsibility when
multiple employers are present. This includes
construction (general contractor vs. subcontractor),
landlord versus tenant, company vs. temporary
employee and so on.
OSHA calls these situations, “multi-employer”
worksites. On multi-employer worksites (in all
industry sectors), more than one employer may be
citable for a hazardous condition that violates an
OSHA standard. A two-step process must be followed
in determining whether more than one employer is to
. The first step is to determine whether the
employer is a creating, exposing, correcting, or
controlling employer. Once you determine the role of
the employer, go to Step Two to determine if a
citation is appropriate (NOTE: only exposing
employers can be cited for General Duty Clause
. If the employer falls into one of these
categories, it has obligations with respect to OSHA
requirements. Step Two is to determine if the
employer's actions were sufficient to meet those
obligations. The extent of the actions required of
employers varies based on which category applies.
Note that the extent of the measures that a
controlling employer must take to satisfy its duty
to exercise reasonable care to prevent and detect
violations is less than what is required of an
employer with respect to protecting its own
Listed below are
11 multi employer cases. These cases come from OSHA
rulings and compliance directives and provide us
with a guide for determining compliance
: Employer Host operates a factory. It contracts
with Company S to service machinery. Host fails to
cover drums of a chemical despite S's repeated
requests that it do so. This results in airborne
levels of the chemical that exceed the Permissible
: Host is a creating employer because it caused
employees of S to be exposed to the air contaminant
above the PEL.
: Host failed to implement measures to prevent the
accumulation of the air contaminant. It could have
met its OSHA obligation by implementing the simple
engineering control of covering the drums. Having
failed to implement a feasible engineering control
to meet the PEL, Host is citable for the hazard.
Employer M hoists materials onto Floor 8, damaging
perimeter guardrails. Neither its own employees nor
employees of other employers are exposed to the
hazard. It takes effective steps to keep all
employees, including those of other employers, away
from the unprotected edge and informs the
controlling employer of the problem. Employer M
lacks authority to fix the guardrails itself.
Employer M is a creating employer because it caused
a hazardous condition by damaging the guardrails.
While it lacked the authority to fix the guardrails,
it took immediate and effective steps to keep all
employees away from the hazard and notified the
controlling employer of the hazard. Employer M is
not citable since it took effective measures to
prevent employee exposure to the fall hazard.
Employer Sub S is responsible for inspecting and
cleaning a work area in Plant P around a large,
permanent hole at the end of each day. An OSHA
standard requires guardrails. There are no
guardrails around the hole and Sub S employees do
not use personal fall protection, although it would
be feasible to do so. Sub S has no authority to
install guardrails. However, it did ask Employer P,
which operates the plant, to install them. P refused
to install guardrails.
: Sub S is an exposing employer because its
employees are exposed to the fall hazard.
: While Sub S has no authority to install
guardrails, it is required to comply with OSHA
requirements to the extent feasible. It must take
steps to protect its employees and ask the employer
that controls the hazard - Employer P - to correct
it. Although Sub S asked for guardrails, since the
hazard was not corrected, Sub S was responsible for
taking reasonable alternative protective steps, such
as providing personal fall protection. Because that
was not done, Sub S is citable for the violation.
Unprotected rebar on either side of an access ramp
presents an impalement hazard. Sub E, an electrical
subcontractor, does not have the authority to cover
the rebar. However, several times Sub E asked the
general contractor, Employer GC, to cover the rebar.
In the meantime, Sub E instructed its employees to
use a different access route that avoided most of
the uncovered rebar and required them to keep as far
from the rebar as possible.
: Since Sub E employees were still exposed to some
unprotected rebar, Sub E is an exposing employer.
: Sub E made a good faith effort to get the general
contractor to correct the hazard and took feasible
measures within its control to protect its
employees. Sub E is not citable for the rebar
Employer C, a carpentry contractor, is hired to
erect and maintain guardrails throughout a large,
15-story project. Work is proceeding on all floors.
C inspects all floors in the morning and again in
the afternoon each day. It also inspects areas where
material is delivered to the perimeter once the
material vendor is finished delivering material to
that area. Other subcontractors are required to
report damaged/missing guardrails to the general
contractor, who forwards those reports to C. C
repairs damaged guardrails immediately after finding
them and immediately after they are reported. On
this project few instances of damaged guardrails
have occurred other than where material has been
delivered. Shortly after the afternoon inspection of
Floor 6, workers moving equipment accidentally
damage a guardrail in one area. No one tells C of
the damage and C has not seen it. An OSHA inspection
occurs at the beginning of the next day, prior to
the morning inspection of Floor 6. None of C's own
employees are exposed to the hazard, but other
employees are exposed.
C is a correcting employer since it is responsible
for erecting and maintaining fall protection
The steps C implemented to discover and correct
damaged guardrails were reasonable in light of the
amount of activity and size of the project. It
exercised reasonable care in preventing and
discovering violations; it is not citable for the
damaged guardrail since it could not reasonably have
known of the violation.
Employer GH contracts with Employer S to do
sandblasting at GH's plant. Some of the work is
regularly scheduled maintenance and so is general
industry work; other parts of the project involve
new work and are considered construction.
Respiratory protection is required. Further, the
contract explicitly requires S to comply with safety
and health requirements. Under the contract GH has
the right to take various actions against S for
failing to meet contract requirements, including the
right to have non-compliance corrected by using
other workers and back-charging for that work. S is
one of two employers under contract with GH at the
work site, where a total of five employees work. All
work is done within an existing building. The number
and types of hazards involved in S's work do not
significantly change as the work progresses.
Further, GH has worked with S over the course of
several years. S provides periodic and other safety
and health training and uses a graduated system of
enforcement of safety and health rules. S has
consistently had a high level of compliance at its
previous jobs and at this site. GH monitors S by a
combination of weekly inspections, telephone
discussions and a weekly review of S's own
inspection reports. GH has a system of graduated
enforcement that it has applied to S for the few
safety and health violations that had been committed
by S in the past few years. Further, due to
respirator equipment problems S violates respiratory
protection requirements two days before GH's next
scheduled inspection of S. The next day there is an
OSHA inspection. There is no notation of the
equipment problems in S's inspection reports to GH
and S made no mention of it in its telephone
: GH is a controlling employer because it has
general supervisory authority over the worksite,
including contractual authority to correct safety
and health violations.
GH has taken reasonable steps to try to make sure
that S meets safety and health requirements. Its
inspection frequency is appropriate in light of the
low number of workers at the site, lack of
significant changes in the nature of the work and
types of hazards involved, GH's knowledge of S's
history of compliance and its effective safety and
health efforts on this job. GH has exercised
reasonable care and is not citable for this
Employer GC contracts with Employer P to do painting
work. GC has the same contract authority over P as
Employer GH had in Example 6. GC has never before
worked with P. During a number of its inspections,
GC finds that P has violated fall protection
requirements. It points the violations out to P
during each inspection but takes no further actions.
: GC is a controlling employer since it has general
supervisory authority over the site, including a
contractual right of control over P.
GC took adequate steps to meet its obligation to
discover violations. However, it failed to take
reasonable steps to require P to correct hazards
since it lacked a graduated system of enforcement. A
citation to GC for the fall protection violations is
: Employer GC contracts with Sub E, an electrical
subcontractor. GC has full contract authority over
Sub E, as in Example 6. Sub E installs an electric
panel box exposed to the weather and implements an
assured equipment grounding conductor program, as
required under the contract. It fails to connect a
grounding wire inside the box to one of the outlets.
This incomplete ground is not apparent from a visual
inspection. Further, GC inspects the site with a
frequency appropriate for the site. It saw the panel
box but did not test the outlets to determine if
they were all grounded because Sub E represents that
it is doing all of the required tests on all
receptacles. GC knows that Sub E has implemented an
effective safety and health program. From previous
experience it also knows Sub E is familiar with the
applicable safety requirements and is technically
competent. GC had asked Sub E if the electrical
equipment is OK for use and was assured that it is.
GC is a controlling employer since it has general
supervisory authority over the site, including a
contractual right of control over Sub E.
GC exercised reasonable care. It had determined that
Sub E had technical expertise, safety knowledge and
had implemented safe work practices. It conducted
inspections with appropriate frequency. It also made
some basic inquiries into the safety of the
electrical equipment. Under these circumstances GC
was not obligated to test the outlets itself to
determine if they were all grounded. It is not
citable for the grounding violation.
: Construction manager M is contractually obligated
to: set schedules and construction sequencing,
require subcontractors to meet contract
specifications, negotiate with trades, resolve
disputes between subcontractors, direct work and
make purchasing decisions, which affect safety.
However, the contract states that M does not have a
right to require compliance with safety and health
requirements. Further, Subcontractor S asks M to
alter the schedule so that S would not have to start
work until Subcontractor G has completed installing
guardrails. M is contractually responsible for
deciding whether to approve S's request.
Even though its contract states that M does not have
authority over safety, the combination of rights
actually given in the contract provides broad
responsibility over the site and results in the
ability of M to direct actions that necessarily
affect safety. For example, M's contractual
obligation to determine whether to approve S's
request to alter the schedule has direct safety
implications. M's decision relates directly to
whether S's employees will be protected from a fall
hazard. M is a controlling employer.
In this example, if M refused to alter the schedule,
it would be citable for the fall hazard violation.
: Employer ML's contractual authority is limited to
reporting on subcontractors' contract compliance to
owner/developer O and making contract payments.
Although it reports on the extent to which the
subcontractors are complying with safety and health
infractions to O, ML does not exercise any control
over safety at the site.
ML is not a controlling employer because these
contractual rights are insufficient to confer
control over the subcontractors and ML did not
exercise control over safety. Reporting safety and
health infractions to another entity does not, by
itself (or in combination with these very limited
contract rights), constitute an exercise of control
Since it is not a controlling employer it had no
duty under the OSH Act to exercise reasonable care
with respect to enforcing the subcontractors'
compliance with safety; there is therefore no need
to go to Step 2.
Architect A contracts with owner O to prepare
contract drawings and specifications, inspect the
work, report to O on contract compliance, and to
certify completion of work. A has no authority or
means to enforce compliance, no authority to
approve/reject work and does not exercise any other
authority at the site, although it does call the
general contractor's attention to observed hazards
noted during its inspections.
A's responsibilities are very limited in light of
the numerous other administrative responsibilities
necessary to complete the project. It is little more
than a supplier of architectural services and
conduit of information to O. Its responsibilities
are insufficient to confer control over the
subcontractors and it did not exercise control over
safety. The responsibilities it does have are
insufficient to make it a controlling employer.
Merely pointing out safety violations did not make
it a controlling employer. NOTE: In a circumstance
such as this it is likely that broad control over
the project rests with another entity.
Since A is not a controlling employer it had no duty
under the OSH Act to exercise reasonable care with
respect to enforcing the subcontractors' compliance
with safety; there is therefore no need to go to
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