The contractor/host-employer relationship in the industrial workplace raises numerous compliance issues. One of the more difficult areas in terms of compliance is entry into permit-required confined spaces. 29 CFR 1910.146 addresses permit-required confined spaces in general industry1. This standard presents unique challenges with regard to delineating responsibilities between the host employer and contractors.

Host employers understandably go to great length to avoid liability for contractor's employees and actions that don't directly affect the host's employees. However, practical considerations as well as specific language in the permit-required confined space standard make separation of liability difficult, if not impossible. Simply put, the contractor and host employer are in it together.

OSHA's Multi-Employer Work Site Policy

OSHA's current policy on multi-employer work sites became effective on December 10, 1999. This policy does not impose any new duties on employers, but it does provide clearer guidance to OSHA inspectors in determining which employer to cite when there are employees of multiple employers in the workplace. It applies to all multi-employer work sites in industry.

OSHA delineates a two-step process to determine if more than one employer should be cited. First, it must be determined whether the employer is a "creating," "exposing," "correcting," or "controlling" employer as defined by the policy. If the employer falls into one or more of these categories, it is required to follow OSHA requirements.

Step two determines whether the employer has met its obligations according to OSHA standards. The employer's category dictates the extent to which OSHA requirements apply with regard to the exposed employees.

A "creating employer" is the employer that causes a hazardous condition that violates OSHA standards. The employer is prohibited from creating such a condition. In the event the employer creates a violating hazard, it can be cited even if the exposed employees are employed by another employer.

An "exposing employer" is one whose own employees are exposed to the hazard. If the exposing employee also created the hazard, it can be cited as a creating employee. If another employer created the hazard, the exposing employer can be cited if two conditions are present:

  1. the employer was aware of the hazardous condition or did not exercise reasonable diligence to discover the condition and

  2. did not take steps within its authority to protect its employees.

An exposing employer must correct the hazard if it has the authority to do so. If it doesn't have the authority to correct the hazard, it can still be cited if it doesn't ask the creating employer and/or the controlling employer to correct the hazard, inform employees of the hazard, and take reasonable alternative protective measures. If the danger is imminent, the exposing employer must remove its employees from the hazard.

"Correcting employers" are engaged with the exposing employer and is responsible for correcting the hazard. An example of this is when a host employer is responsible for installing or maintaining safety devices or controlling or eliminating hazards to which a contractor's employees would otherwise be exposed.

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