United States law requires that all employers provide a safe workplace for employees. The law also requires that both employers and employees comply with the applicable standards that have been issued over the years. This of course would include the scaffold standards. To further increase the effectiveness of the standards, and recognizing that more than one employer may be present on a jobsite, the federal Occupational Safety and Health Administration (OSHA), has established the “Multi-employer workplace policy.”
The multi-employer worksite policy recognizes that the actions of one employer can affect the safety level at a jobsite and expose the employees of other employers to safety and health hazards. Additionally, the multi-employer worksite policy also recognizes that certain employers have control over jobsites and consequently can affect the level of safety on a jobsite. Other employers also affect the safety on the jobsite, not only for their own employees, but also the employees of other employers.
To clarify the roles of various employers on a specific jobsite, OSHA has classified four types of employers:
1. The Controlling Employer: The employer who is responsible, by contract or through actual practice, for safety and health conditions on the worksite; i.e., the employer who has the authority for ensuring that the hazardous condition is corrected.
2. The Creating Employer: The employer who actually creates the hazard.
3. The Exposing Employer: The employer whose employees are exposed to hazards.
4. The Correcting Employer: The employer who has the responsibility for actually correcting the hazard.
What does this mean to you as an employer and more importantly, as an employee? An example will illustrate how this policy works. You are an electrical contractor (Zap Electric, Inc.) with employees on a commercial building project where the general contractor, Rwebig General Contracting, Inc., has agreed to supply all the scaffolding on the job. Rwebig contracts with Wedewit Scaffold Company to erect a 15’-0” high scaffold on the job for your use. The scaffold is erected without guardrails. Since all the employees of Zap Electric received accurate scaffold users training, in compliance with the OSHA Standards, they immediately notice that the scaffold is missing the guardrails and inform you of the problem. You tell them not to use the scaffold and call Rwebig to tell them the problem, informing Rwebig that you cannot proceed with your work on the scaffold until guardrails are installed. Realizing that there are no guardrails on the jobsite, Rweebig contacts Wedewit Scaffold to come to the job to install guardrails. However, before guardrails can be installed, employees of Hotair Heating and Air Conditioning Company use the scaffold. What is the violation, who is whom, and who gets cited?
First, the violation is not having a guardrail system (or other form of fall protection,) on a scaffold platform above ten feet. Next, who is the exposing employer? Potentially, Zap Electric, Hotair Heating, Rwebig Contracting, and Wedewit Scaffold could be exposing employers at the time the scaffold had no guardrails. To avoid becoming an exposing employer, the employer must meet the following defenses:
1. The employer did not create the hazard;
2. The employer did not have the responsibility or the authority to have the hazard corrected;
3. The employer did not have the ability to correct or remove the hazard;
4. The employer can demonstrate that the creating, the controlling and/or the correcting employers, as appropriate, have been specifically notified of the hazard to which his/her employees are exposed;
5. The employer has instructed his/her employees to recognize the hazard and,
a) Where feasible, an exposing employer must have taken appropriate alternative means of protecting employees from the hazard.
b) When extreme circumstances justify it, the exposing employer shall have removed his/her employees from the job to avoid citation.
Since Zap Electric contacted Rwebig Contracting about the hazard, and did not expose their employees to the hazard, Zap Electric would not be an exposing employer. Hotair Heating is an exposing employer since it had employees on the non-compliant scaffold. Even though Wedewit had no employees on the jobsite, it is an exposing employer since it could not meet the five defenses described above. Wedewit is also the creating and correcting employer, since there were no guardrails on the jobsite for other employers to install to remedy the situation. Rwebig Contracting is the controlling contractor, and also is an exposing employer assuming it had employees who did or might use the scaffold, or were aware of the situation and did nothing about it. In summary, all employers except Zap Electric could get cited for a fall protection violation.
As this example illustrates, you don’t need employees on the jobsite to be a creating employer. As a user of scaffolding, you must be familiar with the scaffold standards. As a scaffold supplier, you must provide the correct equipment. As an erector, you must construct the scaffold properly. For all employers, document what is being erected, and determine who is responsible for the correct erection of the scaffold and the safe use of the scaffold.
OSHA has applied this policy to many employers on jobsites with mixed results. In certain cases, OSHA unsuccessfully attempted to cite employers who had no control over job safety, such as the architect or design engineer. In other situations, OSHA has successfully enforced this policy by demonstrating that an employer was in control of the hazardous situation or could have reasonably known of the situation. As a general contractor, it is generally assumed, correctly or not, that you are the controlling employer.