Introduction

Outsourcing, or contracting, of specialized services has been a common business practice in the construction industry for years. Over the past decade, outsourcing has become a growing trend within general industry. Nine out of ten manufacturing companies outsource at least one function and some outsource as many as nine key functions.1 Often, these outsourced functions reside on the host employers' properties. To insure that host employers are providing safe and healthy workplaces for all tenants, safety and environmental managers must identify a creative means of ensuring that contractors comply with applicable regulations and policies without controlling the content or implementation of their contractors' programs.

Regulatory Overview: Multi-employer Worksite Doctrine

Regulatory enforcement of contractor safety issues is derived from the General Duty Clause of the Occupational Safety and Health Act, which has been interpreted for the construction industry through the Multi-Employer Worksite Doctrine (MEWD) to mean that employers are responsible for hazards to which their employees are exposed and over which they have control. Despite Congressional challenges to the MEWD it has been applied in general industry case law.

The MEWD has created an enormous amount of controversy since the mid 1970s. HR 2879 was proposed to clarify discrepancies between the MEWD and the OSH Act. The bill, proposed by Rep. Cass Ballenger, would have exempted general contractors from OSHA citations for violations created by subs if the general contractor had no workers exposed, did not create the hazard, and did not assume supervisory responsibility for subcontractors. In the meantime, OSHA published a clarification to the MEWD in 1999.

OSHA Multi-Employer Citation Policy

The OSHA Multi-Employer Citation Policy states "on multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard." This policy was intended to provide clarification to inspectors on violations involving multiple employer worksites. The document outlines a two-step process for determining whether more than one employer should be cited:

Step One: Determine whether an employer creates, exposes, corrects, or controls. The document provides definitions of each of these descriptors.

  • "Creates" is defined as an employer that caused a hazardous situation violating OSHA regulations. This is the worst category in which an employer could be classified. An employer is responsible for the hazard(s) it created even if the only people exposed are employees of other employers.

  • "Exposes" means the employees of this employer are exposed to the hazard. If the exposing employer didn't create the hazard, the OSHA inspector must determine whether the exposing employer was aware of the hazard. If the employer was unaware of the hazard, the inspector must investigate whether the employer should have conducted due diligence assessments to discover the hazard. According to the OSHA Multi-employer Citation Policy, in severe circumstances, an employer may be cited for not removing employees from a worksite where the employees are exposed to a severe hazard.

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