Employer Liability for Safety and Health on Multi-Employer Worksites

OSHA's Multi-Employer Worksite Practice

1. The United States Occupational Safety and Health Administration ("OSHA") has made it a formal practice to cite for safety and health hazards not only contractors whose employees on multi-employer worksites have been exposed to those hazards, but also other contractors who OSHA concludes have created or controlled abatement of those hazards.

2. Thus, in the multi-employer context, two or more employers may be liable for the same violative condition, and each may be cited by OSHA.

   • Example. In Fluorescent Maintenance Service, Inc. &; Jackson Sign Service, Inc., 1974–75 O.S.H.D. (CCH) &; 19144 (Rev. Com. Judge 1974), a contractor and subcontractor were both found to be in violation of minimum clearance requirements for crane operation near electrical lines. Only the subcontractor had personnel on the job, but the general contractor, which had no employees exposed to the hazard, was also found in violation.

   • Reasonableness. However, at least one administrative law judge ("ALJ") for the United States Occupational Safety and Health Review Commission ("Commission") vacated charges of violating requirements for exit locking, guardrail anchoring, hoistway locks, clear aisleways, and debris that had been issued to all 18 subcontractors at a construction site. The ALJ stated that the subcontractors could not have been reasonably expected to inspect for, locate, and correct all hazardous conditions. According to the ALJ, it is unreasonable under the Commission's Anning-Johnson/Grossman doctrine, infra, to cite every contractor even remotely concerned with a violative condition. Paramount Plumbing and Heating Co., Inc., 5 O.S.H.C. (BNA) 1459, 1980 O.S.H.D. (CCH) &; 24317 (Rev. Com. Judge 1980).

Additional Potential Liability

1. In Contract. Contractors also can assume contractual responsibility for other contractors' fines and litigation expenses resulting from the first contractor's violations of OSHA standards or the Occupational Safety and Health Act of 1970, 29 U.S.C. '' 651–678 ("OSHAct"). However, it is well settled that an employer may not avoid its responsibilities under the OSHAct by contractually assigning required safety measures to another party. See, e.g., Baker Tank Co./Altech, 17 O.S.H. Cas. (BNA) 1177, 1180 (Rev. Comm. 1995).

2. In Tort. The multi-employer worksite situation raises potential tort liability for multiple contractors at a site when an employee of one contractor is injured or killed. For example, in an unpublished Massachusetts case:

   • A plasterer's tender had to climb scaffolding to do his work. Neither his employer, the general contractor, nor the two firms who supplied and erected the scaffolding provided proper ladders for safe access. The tender fell four stories and was killed.