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Multi-employer Worksites

Governor’s Occupational Safety & Health Conference

Monday, October 18, 2010

Dale Glacken, CAS, Harrisburg OSHA

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Multi-employer Worksites Requirements specifically defined in several

standards. Excerpts

OSHA’s Multi-employer Citation Policy 4 Examples

Sources of Information

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Exit Routes, Emergency Action Plans, and Fire

Prevention Plans. - 1910 Subpart E App (non-man)

In buildings with several places of employment, employers are encouraged to coordinate their plans with the other employers in the building. A building-wide or standardized plan for the whole building is acceptable provided that the employers inform their respective employees of their duties and responsibilities under the plan. The standardized plan need not be kept by each employer in the multi-employer building, provided there is an accessible location within the building where the plan can be reviewed by affected employees.

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When multi-employer building-wide plans are not feasible, employers should coordinate their plans with the other employers within the building to assure that conflicts and confusion are avoided during times of emergencies. In multi-story buildings where more than one employer is on a single floor, it is essential that these employers coordinate their plans with each other to avoid conflicts and confusion.

Exit Routes, Emergency Action Plans, and Fire

Prevention Plans. - 1910 Subpart E App (non-man)

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Clean up operations: 1910.120(b)(1)(iv): …shall inform those contractors,

sub-contractors, or their representatives of the site emergency response procedures and any potential fire, explosion, health, safety or other hazards of …

1910.120(b)(1)(v): The written safety and health program shall be made available to any…

1910.120(i): Informational programs. Employers shall develop and implement a program … to inform employees, contractors, and subcontractors … of the nature, level and degree of exposure likely as a result of participation in such hazardous waste operations. …

Hazardous waste operations and emergency response. 1910.120/1926.65

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Hazardous waste operations and emergency response. 1910.120/1926.65

Hazardous Waste: 1910.120(p)(2): The employer shall implement a hazard communication program meeting the requirements of 29 CFR 1910.1200 as part of the employer's safety and program.

Emergency Response Operations: 1910.120(q)(4): Skilled support personnel. Personnel, not necessarily an employer's own employees, … given an initial briefing at the site prior to their participation in any emergency response… wearing of appropriate personal protective equipment, what chemical hazards are involved, and what duties are to be performed. All other appropriate safety and health precautions

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Permit-required confined spaces - 1910.146

1910.146(c)(8): When an employer (host employer) arranges to have employees of another employer (contractor) perform work that involves permit space entry, the host employer shall:

1910.146(c)(8)(i): Inform the contractor that the workplace contains permit spaces and that permit space entry is allowed only through compliance with a permit space program meeting the requirements of this section;

1910.146(c)(8)(ii): Apprise the contractor of the elements, including the hazards identified and the host employer's experience with the space, that make the space in question a permit space;

1910.146(c)(8)(iii): Apprise the contractor of any precautions or procedures that the host employer has implemented for the protection of employees in or near permit spaces where contractor personnel will be working;

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Permit-required confined spaces - 1910.146

1910.146(c)(8)(iv): Coordinate entry operations with the contractor, when both host employer personnel and contractor personnel will be working in or near permit spaces, as required by paragraph (d)(11) of this section; and

1910.146(c)(8)(v): Debrief the contractor at the conclusion of the entry operations regarding the permit space program followed and regarding any hazards confronted or created in permit spaces during entry operations.

1910.146(c)(9): In addition to complying with the permit space requirements that apply to all employers, each contractor who is retained to perform permit space entry operations shall:

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Permit-required confined spaces - 1910.146

1910.146(c)(9)(i): Obtain any available information regarding permit space hazards and entry operations from the host employer;

1910.146(c)(9)(ii): Coordinate entry operations with the host employer, when both host employer personnel and contractor personnel will be working in or near permit spaces, as required by paragraph (d)(11) of this section; and

1910.146(c)(9)(iii): Inform the host employer of the permit space program that the contractor will follow and of any hazards confronted or created in permit spaces, either through a debriefing or during the entry operation

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The control of hazardous energy (lockout/tagout). - 1910.147

1910.147(f)(2)(i) Whenever outside servicing personnel are to be engaged in activities covered by the scope and application of this standard, the on-site employer and the outside employer shall inform each other of their respective lockout or tagout procedures.

1910.147(f)(2)(ii) The on-site employer shall ensure that his/her employees understand and comply with the restrictions and prohibitions of the outside employer's energy control program

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Hazard Communication. – 1910.1200 / 1926.58

1910.1200(e)(2): "Multi-employer workplaces." Employers who produce, use, or store hazardous chemicals at a workplace in such a way that the employees of other employer(s) may be exposed (for example, employees of a construction contractor working on-site) shall additionally ensure that the hazard communication programs developed and implemented under this paragraph (e) include the following:

1910.1200(e)(2)(i): The methods the employer will use to provide the other employer(s) on-site access to material safety data sheets for each hazardous chemical the other employer(s)' employees may be exposed to while working;

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1910.1200(e)(2)(ii): The methods the employer will use to inform the other employer(s) of any precautionary measures that need to be taken to protect employees during the workplace's normal operating conditions and in foreseeable emergencies; and,

1910.1200(e)(2)(iii): The methods the employer will use to inform the other employer(s) of the labeling system used in the workplace.

Hazard Communication. – 1910.1200 / 1926.58

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Asbestos - 1926.1101 Multi-employer worksites: 1926.1101(d)(1): On multi-employer worksites, an employer

performing work requiring the establishment of a regulated area shall inform other employers on the site of the nature of the employer's work with asbestos and/or PACM, of the existence of and requirements pertaining to regulated areas, and the measures taken to ensure that employees of such other employers are not exposed to asbestos.

1926.1101(d)(2): Asbestos hazards at a multi-employer work site shall be abated by the contractor who created or controls the source of asbestos contamination. For example, if there is a significant breach of an enclosure containing Class I work, the employer responsible for erecting the enclosure shall repair the breach immediately.

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Asbestos - 1926.1101 1926.1101(d)(3): In addition, all employers of employees

exposed to asbestos hazards shall comply with applicable protective provisions to protect their employees. For example, if employees working immediately adjacent to a Class I asbestos job are exposed to asbestos due to the inadequate containment of such job, their employer shall either remove the employees from the area until the enclosure breach is repaired; or perform an initial exposure assessment pursuant to (f) of this section.

1926.1101(d)(4): All employers of employees working adjacent to regulated areas established by another employer on a multi-employer work-site, shall take steps on a daily basis to ascertain the integrity of the enclosure and/or the effectiveness of the control method relied on by the primary asbestos contractor to assure that asbestos fibers do not migrate to such adjacent areas.

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Asbestos - 1926.1101 1926.1101(d)(5): All general contractors on a

construction project which includes work covered by this standard shall be deemed to exercise general supervisory authority over the work covered by this standard, even though the general contractor is not qualified to serve as the asbestos "competent person" as defined by paragraph (b) of this section. As supervisor of the entire project, the general contractor shall ascertain whether the asbestos contractor is in compliance with this standard, and shall require such contractor to come into compliance with this standard when necessary.

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Asbestos - 1926.1101 Communication of hazards. 1926.1101(k)(1): This section applies to the communication

of information concerning asbestos hazards in construction activities to facilitate compliance with this standard. … =>If the employer/building owner has actual knowledge, or should have known through the exercise of due diligence, that other materials are asbestos-containing, they too must be treated as such. When communicating information to employees pursuant to this standard, owners and employers shall identify "PACM" as ACM. Additional requirements relating to communication of asbestos work on multi-employer worksites are set out in paragraph (d) of this section.

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Asbestos - 1926.1101 1926.1101(k)(2): Duties of building and facility owners. 1926.1101(k)(2)(i): Before work subject to this standard is

begun, building and facility owners shall determine the presence, location, and quantity of ACM and/or PACM at the work site pursuant to paragraph (k)(1) of this section.

1926.1101(k)(2)(ii): Building and/or facility owners shall notify the following persons of the presence, location and quantity of ACM or PACM, at the work sites in their buildings and facilities. Notification either shall be in writing, or shall consist of a personal communication between the owner and the person to whom notification must be given or their authorized representatives:

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Asbestos - 1926.1101 1926.1101(k)(2)(ii)(A): Prospective employers applying

or bidding for work whose employees reasonably can be expected to work in or adjacent to areas containing such material;

1926.1101(k)(2)(ii)(B): Employees of the owner who will work in or adjacent to areas containing such material:

1926.1101(k)(2)(ii)(C): On multi-employer worksites, all employers of employees who will be performing work within or adjacent to areas containing such materials;

1926.1101(k)(2)(ii)(D): Tenants who will occupy areas containing such material.

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PART 1904 -- Recording and Reporting Occupational Injuries and Illnesses 1904.31: Covered Employees

Those on your payroll. Those not on your payroll, if you supervise

these employees on a day-to-day basis. (Do you supervise temporary help service employees, employees from a leasing service, personnel supply service or contractor’s employees?)

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PART 1904 -- Recording and Reporting Occupational Injuries and Illnesses 1904.31: Not Covered:

Self-employed individuals Sole proprietorship Partnership (only the owner or partners) Unpaid volunteers

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Multi-employer Responsibilities: Also Defined in several of the standards, such

as: Formaldehyde. - 1910.1048 (m) 1,3-Butadiene. - 1910.1051 (e) Methylene Chloride. - 1910.1052 (e) & (l) Methylenedianiline. - 1926.60 Cadmium - 1926.1127 And Others:

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Multi-employer Responsibilities: Other operations, i.e.:

Powered Industrial Truck Operators So forth

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§ 1926.20(a) Contractor requirements.

§ 1926.20(a)(1) Section 107 of the Act requires that it shall be a condition of each contract which is entered into under legislation subject to Reorganization Plan Number 14 of 1950 (64 Stat. 1267), as defined in 1926.12, and is for construction, alteration, and/or repair, including painting and decorating, that no contractor or subcontractor for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety.

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Multi-employer Worksites

CPL 02-00-124 – Multi-Employer Citation Policy

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Multi-employer Worksite Policy On multi-employer worksites (in all industry

sectors): More than one employer may be citable for

a hazardous condition that violates an OSHA standard.

A two-step process must be followed to determine whether violations of those standards exist.

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Multi-employer Worksite Policy Step 1: Determine whether the employer is a

creating, exposing, correcting or controlling employer (an employer may have more than one role).

Step 2: Determine if the employer’s actions were sufficient to meet the obligations it has with respect to OSHA requirements. The extent of the actions required of employers varies based on which category applies.

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More than 1 employer may be cited if the employer:

1. Created hazard

2. Exposed employee

3. Responsible for correcting hazard

4. Controlling employer

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Creating Employer Definition: The employer that caused a

hazardous condition that violates an OSHA standard.

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Creating Employer Example: Employer M hoists materials onto

Floor 8, damaging perimeter guardrails. Neither its own employees nor employees of other employers are exposed to the hazard. It takes effective steps to keep all employees, including those of other employers, away from the unprotected edge and informs the controlling employer of the problem. Employer M lacks authority to fix the guardrails itself.

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Multi-employer Worksite Policy Step 1: Determine whether the employer

is a creating, exposing, correcting or controlling employer (an employer may have more than one role).

Step 1: Employer M is a creating employer because it caused a hazardous condition by damaging the guardrails.

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Creating Employer Analysis:

Step 2: Determine if the employer’s actions were sufficient to meet the obligations it has with respect to OSHA requirements. The extent of the actions required of employers varies based on which category applies.

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Creating Employer Analysis:

Step 2: While it lacked the authority to fix the guardrails, it took immediate and effective steps to keep all employees away from the hazard and notified the controlling employer of the hazard. Employer M is not citable since it took effective measures to prevent employee exposure to the fall hazard.

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Exposing Employer

Definition: An employer whose own employees are exposed to the hazard.

Exposed” is either:

1. Observed - witnessed, observed or monitored by OSHA

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2. Unobserved – witness statements or other evidence that exposure to a hazardous condition has occurred, continues to occur, or could recur. (e.g. fatality/catastrophe (or other accident) investigations or has occurred in the past (previous six months)).

3. Potential – an employee could be exposed to a hazardous condition because of work patterns, past circumstances, or anticipated work requirements, and it is reasonably predictable that employee exposure could occur

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Exposing Employer Example: Employer Sub S is responsible for

inspecting and cleaning a work area in Plant P around a large, permanent hole at the end of each day. An OSHA standard requires guardrails. There are no guardrails around the hole and Sub S employees do not use personal fall protection, although it would be feasible to do so. Sub S has no authority to install guardrails. However, it did ask Employer P, which operates the plant, to install them. P refused to install guardrails.

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Exposing Employer

Analysis:

Step 1: Sub S is an exposing employer because its employees are exposed to the fall hazard.

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Exposing Employer

Step 2: While Sub S has no authority to install guardrails, it is required to comply with OSHA requirements to the extent feasible. It must take steps to protect its employees and ask the employer that controls the hazard - Employer P - to correct it. Although Sub S asked for guardrails, since the hazard was not corrected, Sub S was responsible for taking reasonable alternative protective steps, such as providing personal fall protection. Because that was not done, Sub S is citable for the violation.

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Correcting Employer Definition: An employer who is engaged in a

common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard. This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices.

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Correcting Employer

Example: Employer C, a carpenter contractor, is hired to erect and maintain guardrails throughout a large, 15 story project. Work is proceeding on all floors. C inspects all floors in the morning and again in the afternoon each day. It also inspects areas where material is delivered to the perimeter once the material vendor is finished delivering to that area... =>

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Correcting Employer

Example part 2: Other contractors are required to report damaged/missing guardrails to the general contractor, who forwards those reports to C. C repairs damaged guardrails immediately after finding them and immediately after they are reported. On this project few instances of damaged guardrails have occurred other than where material has been delivered… =>>

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Correcting Employer

Example part 3:Shortly after the afternoon inspection of Floor 6, workers accidentally damaged a guardrail in one area. No one tells C of the damage and C has not seen it. An OSHA inspection occurs at the beginning of the next day, prior to the morning inspection of Floor 6. None of C’s own employees are exposed to the hazard, but other employees are exposed.

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Correcting Employer

Step 1: C is a correcting employer since it is responsible for erecting and maintaining fall protection equipment.

Step 2: The steps C implemented to discover and correct damaged guardrails were reasonable in light of the amount of activity and size of the project. It exercised reasonable care in preventing and discovering violations; it is not citable for the damaged guardrail since it could not reasonably have known of the violation.

Analysis:

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Controlling Employer Definition: An employer who has general

supervisory authority over the worksite, including the

power to correct safety and health violations itself or

require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.

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Types of Controlling Employers Control Established by Contract. In this case, the

Employer Has a Specific Contract Right to Control Safety: To be a controlling employer, the employer must itself be able to prevent or correct a violation or to require another employer to prevent or correct the violation. One source of this ability is explicit contract authority. This can take the form of a specific contract right to require another employer to adhere to safety and health requirements and to correct violations the controlling employer discovers.

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Types of Controlling Employers Control Established by a Combination of Other

Contract Rights: Where there is no explicit contract provision granting the right to control safety, or where the contract says the employer does not have such a right, an employer may still be a controlling employer. The authority to resolve disputes between subcontractors, set schedules and determine construction sequencing are particularly significant because they are likely to affect safety.

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Controlling Employer Example:

Employer GH contracts with Employer P to do painting at GH's plant. Fall protection is required. Further, the contract explicitly requires P to comply with safety and health requirements. Under the contract GH has the right to take various actions against P for failing to meet contract requirements, including the right to have non-compliance corrected by using other workers and back-charging for that work.

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Controlling Employer Example, cont:

GH monitors P by a combination of inspections, telephone discussions and a weekly review of P’s own inspection reports. GH has never before worked with P. During a number of its inspections, GH finds that P has violated fall protection requirements. It points the violations out to P during each inspection but takes no further actions.

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Controlling Employer, Analysis: Step 1: GH is a controlling employer because it

has general supervisory authority over the worksite, including contractual right of control over P. Step 2: GH took adequate steps to meet its obligation to discover violations. However, it failed to take reasonable steps to require P to correct hazards since it lacked a graduated system of enforcement. A citation to GH for the fall protection violations is appropriate.

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SummaryWhat if you have employees exposed to an unsafe

condition, you may be cited unless: Your company did not create the hazard. Your company does not have the authority to

correct the hazard or have it corrected. Your company made an effort to persuade the

employer responsible for the violation to correct it (normally in writing).

Your company instructed your employees how to avoid or minimize the dangers of the hazard and, where feasible, provided alternative protection for them.

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www.osha.gov

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Summit, Little Rock

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SummitHarrisburg

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Eighth Circuit Overrules Review Commission in OSHA/Summit

Multi-Employer Case

http://www.ca8.uscourts.gov/opndir/09/02/072191P.pdf

Summit, Little Rock

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Pennsylvania OSHA Area Offices Allentown Area Office

(610) 776-0592Erie Area Office

(814) 461-1492Harrisburg Area Office

(717) 782-3902Philadelphia Area

Office(215) 597-4955

Pittsburgh Area Office(412) 395-4903

Wilkes-Barre Area Office

(570) 826-6538

Main OSHA Number: 1-800-321-OSHA,

1-800-321-6742Rev: 22 Sept 2006

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This information has been developed by an OSHA Compliance Assistance Specialist and is intended to assist employers, workers, and others as they strive to improve workplace health and safety. While we attempt to thoroughly address specific topics, it is not possible to include discussion of everything necessary to ensure a healthy and safe working environment in a presentation of this nature. Thus, this information must be understood as a tool for addressing workplace hazards, rather than an exhaustive statement of an employer’s legal obligations, which are defined by statute, regulations, and standards. Likewise, to the extent that this information references practices or procedures that may enhance health or safety, but which are not required by a statute, regulation, or standard, it cannot, and does not, create additional legal obligations. Finally, over time, OSHA may modify rules and interpretations in light of new technology, information, or circumstances; to keep apprised of such developments, or to review information on a wide range of occupational safety and health topics, you can visit OSHA’s website at www.osha.gov.

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