The work done on nearly every construction jobsite is done by the employees of multiple employers. At any given time, depending on the complexity and the size of the project, there may be dozens of different trades at work on the jobsite. When an OSHA inspection occurs, and violations are found, which employer (or employers) will receive citations?
Under OSHA policy, the general contractor, as well as each subcontractor or other employer of workers present on the jobsite, may play one or more of several roles, any one of which may subject it to being cited for OSHA violations. These roles are referred to as the “creating,” “exposing,” “correcting,” and “controlling” employer.
As the name implies, a “creating” employer is one who causes a condition that violates an applicable OSHA standard. Since, unsurprisingly, it is forbidden to create hazards that violate OSHA standards, any employer that does so will be cited, even if none of its own employees are exposed to the violative condition, and even if the extent of the employer’s overall control of the project is slight. (Naturally, it remains a requirement that someone’s employees be exposed to the hazard, although it need not be the “creating employer’s” employees).
Also subject to being cited for any OSHA violation is an “exposing employer,” which is to say every employer whose employees were exposed to the condition that violated an OSHA standard. An “exposing employer” is liable as such, even if its employees created the hazard, but if the exposing employer was not also the creating employer, it must be shown that it had actual or constructive knowledge of the hazard, and failed to take steps to protect its employees.
Actual or constructive knowledge on the part of the cited employer is an indispensable element of every OSHA violation. “Constructive” knowledge means that the employer ought to have known of the violation, in the exercise of reasonable diligence.
An “exposing” employer, if lacking authority to correct a given hazard, has a duty to ask the “creating” or “controlling” employer to do so. It must also inform its employees of the hazard, take reasonable alternative protective measures, and remove its employees, if the hazard presents an imminent danger.
The “controlling” employer — most often, the general contractor or construction manager — is the employer having general supervisory authority over the jobsite, and the power (whether by contract, or in practice) to correct safety hazards, or require others to do so. Note that project architects and engineers are sometimes deemed to be “controlling employers.” A “controlling employer” must take reasonable care in preventing and detecting OSHA violations.
Although the Evergreen Construction case, discussed below, calls into question the extent of the controlling employer’s responsibilities in inspecting the jobsite to discover hazards created by others, traditionally the level of care required of a general contractor, in safeguarding the trades’ employees, is lower than is mandated in looking out for its own employees.
However, among the factors in determining how frequently a “controlling employer” must inspect the site, to detect hazards created by others, is what the controlling employer knows about the safety and health efforts of the subcontractors. “Reasonable diligence” on the part of the controlling employer requires fewer inspections, where the subs are known to be conscientious with respect to safety, and more frequent ones, where there are subcontractors known to have been non-compliant, or about which little is known.
Finally, a “correcting employer” may be cited for an OSHA violation. Such an employer must be engaged in a common undertaking, at the same worksite as the exposing employer, and responsible for correcting a hazard. It must exercise reasonable care in preventing and discovering violations, and diligence in meeting its obligation to correct hazards.
Naturally, a particular employer may simultaneously exercise more than one of the roles of creating, exposing, controlling, and correcting employer.
The recent decision by the OSH Review Commission in Secretary v. Evergreen Construction Company calls into question just how much diligence is required of a general contractor, or other “controlling employer,” in discovering and remedying violations by project subcontractors.
The facts in Evergeen Construction were straightforward. Evergreen was general contractor on a hotel construction project in Atlanta. This project was for the construction of a six-story building on 3 acres of land, with up to 20 subcontractors working onsite at any given time.
The masonry subcontractor, Nuñez, was cited for a fall-protection violation, with the OSHA compliance officer arriving onsite for his inspection one morning at about 10:00 A.M. Nuñez’s employees were building walls close to the unprotected edge of the building’s fourth floor, without exterior walls, guardrails, or safety nets to protect against falls. The employees were not wearing harnesses or lanyards, and, at the time of the inspection, no anchorage points to affix lanyards had been installed.
In addition to citing Nuñez as the “creating” and “exposing” employer, OSHA cited Evergreen as the “controlling” employer.
The facts established at trial showed, on the one hand, that overall Evergreen appeared to be highly conscientious, its supervisor and safety manager walking the site up to four times daily to check on the progress of the work, look for safety issues, and point out to subcontractors any safety violations he observed.
However, Evergreen’s supervisor had repeatedly observed Nuñez employees working without fall protection. Indeed, on the day prior to the inspection, the supervisor had inspected the jobsite twice, and saw Nuñez’s employees working without fall protection both times. On both occasions, he had admonished them to use fall protection. From 7:00 A.M. the following morning until the compliance officer’s arrival at about 10:00 A.M., the supervisor had been in meetings in the jobsite trailer, and did not inspect the worksite before OSHA arrived, and found Nuñez’s employees once again working without fall protection.
The ALJ affirmed the violation as against the general contractor on two grounds, finding (1) that reasonable diligence required Evergreen to inspect Nuñez’s work during the period of 1-3 hours on the morning of the OSHA inspection (wherefore, it would be deemed to have had constructive knowledge of the violation); and (2) that Evergreen’s program was deemed inadequate, with regard to enforcing Nuñez’s compliance with OSHA requirements.
On review by the Commission, Commissioner MacDougall expressly, and Commissioner Attwood tacitly, disapproved the ALJ’s view that Evergreen’s enforcement program was insufficient. Commissioner MacDougall, moreover, stressing Commission precedent that the controlling employer does not need to inspect as frequently as an exposing employer, found that requiring Evergreen to inspect the jobsite before work even began on the morning of the inspection would raise the standard for “reasonable diligence” to an unreasonable level. As one subject of Evergreen’s meeting on the morning of the inspection was again to remind Nuñez of its OSHA obligations, Commissioner MacDougall found that Evergreen had informed Nuñez of those obligations three times in the 24-hour period preceding the inspection, and that requiring more would be to effectively punish Evergreen for its laudably attentive past efforts, while disregarding the obligations and constraints placed on a controlling employer’s onsite supervisor on a large, active jobsite.
Disagreeing, Commissioner Attwood opined that Evergreen’s superintendent’s knowledge that Nuñez had violated the fall protection standard twice on the day before the inspection required it to exercise reasonable diligence to prevent the same violation from occurring prior to OSHA’s inspection of the worksite on the following day.
In light of the impasse between the two participating commissioners, they determined to vacate the Commission’s direction for review, allowing the employer the choice to appeal the ALJ’s decision to an appropriate U.S. Court of Appeals.