The Construction Counselor

Under the Occupational Safety and Health Administration’s (OSHA’s) Multi-Employer Citation Policy, multiple employers on a shared jobsite (general contractors, subcontractors, etc.), can be cited for the same alleged OSHA violation. Notably, general contractors can be cited even if their own employees were not directly involved. Understanding this policy is essential for managing risk and maintaining compliance.

A general contractor-employer can be cited if it falls into one of the following categories defined by OSHA:

• Creating employer: the employer that caused a hazardous condition that violates an OSHA standard.
• Exposing employer: an employer whose own employees are exposed to the hazard.
• Correcting employer: an employer who is engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard.
• Controlling employer: an employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.

A general contractor is most often held responsible for an alleged OSHA violation created by a subcontractor as a controlling employer. “Control” can be established in practice or by explicit contractual provisions. A controlling employer has a duty to exercise reasonable care to prevent and detect violations on a jobsite. However, this duty of care is more relaxed compared to an employer’s duty to protect its own employees. See Suncor Energy (U.S.A.) Inc., No. 13-0900, 2019 WL 654129, at *4 (OSHRC Feb. 1, 2019). Factors considered in evaluating a controlling employer’s reasonable care duty include: (1) the scale of the project, (2) the nature and pace of the work, and (3) how much the controlling employer knows about the safety history, safety practices and the employer’s level of expertise.

Frequent and Regular Inspections Required by General Contractors

OSHA specifically requires a general contractor, as the controlling employer, to initiate and maintain “frequent and regular inspections of the job sites, materials, and equipment . . . by competent persons designated by the employers.” 29 C.F.R. § 1926.20(b)(2). A “competent person” is defined as someone “capable of identifying existing and predictable hazards in the surrounding or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.” 29 C.F.R. § 1926.32(f). General contractors must ensure they have a competent person on each worksite and should ensure that their subcontractors have a competent person on site when the subcontractor is performing work. Contact your attorney if you have questions on whether your supervisor is a “competent person” under OSHA standards.

Unfortunately, the OSHA regulations do not specifically define what constitutes “frequent and regular” inspections. Within court cases and agency actions, the term “regular” has been found to have its ordinary meaning and has been satisfied by inspections that are “consistent or habitual” and “recurring at set times”. J. A. Jones Construction Co., No. 87-2059, 1993 WL 61950 (OSHRC, Feb. 19, 1993). “Frequent” is less defined and depends on the facts and circumstances of the specific jobsite. You should consult legal counsel to develop effective, OSHA-compliant inspection protocols.

Best Practices for General Contractors

To reduce exposure to OSHA citations and promote a safe jobsite, general contractors should strongly consider implementing the following best practices:

• Develop and implement an OSHA-compliant Health and Safety Plan, which includes, among other things, a Hazard Communications Plan.
• Ensure all of your own employees who are present on jobsites understand and comply with OSHA standards, through formal OSHA training and on-site training as well, maintain documentation of the same.
• In particular, ensure your superintendents, assistant superintendents and supervisory personnel receive the highest level of OSHA training to satisfy the “competent person” standard, ensuring that these employees, at a minimum, have the knowledge and ability to determine if OSHA violations are present at your jobsites and, if so, how they are to be corrected.
• Perform regular and frequent inspections of the worksite and maintain documentation of your presence each day when you are present on site and documentation of your inspection of the jobsites for hazards. Contact your attorney to determine what “regular and frequent” means for your operation, which may change depending on the work being performed at any given time and regarding documentation best practices.
• In particular, maintain detailed documentation regarding your presence on jobsites, including what sites you are currently working on, how long you were there and what you observed. This is especially critical for homebuilders and residential general contractors who may oversee multiple jobs simultaneously. You should contact an attorney to develop a consistent oversight system.
• Maintain written agreements with subcontractors that outline and require compliance with OSHA standards, including requiring each subcontractor to develop and implement their own OSHA-compliant Health and Safety Plan or to abide by your Plan.
• Require subcontractors to immediately notify you of noncompliance with OSHA standards, demand immediate corrective action and maintain documentation of all communications and responses.
• Hold frequent safety meetings with subcontractors to reinforce safety expectations and address any site or job specific risks, and maintain documentation of the same.

If you have questions regarding compliance with OSHA standards or general construction matters, please contact Jodie McDougal.