August 16, 2019

Pitfalls of OSHA Workplace Safety Classifications

Gavin D. O’Hare, CED Technologies, Annapolis, MD

Imagine you have a client who is a general contractor overseeing the construction of a 10-story office building.  He has hired subcontractors to help him in this task.  During the process of lifting a piece of heavy equipment, one of the subcontractors removes part of a barricade that surrounds the otherwise-exposed outer ledge.  Later that day, a worker in the area under the direction of another subcontractor slips and falls off the now-unprotected ledge.  How easy is it to determine who is responsible for preventing these incidents and who failed in their safety duties?

Although this is an incredibly simplistic scenario, one can easily imagine how quickly the web can get tangled as roles overlap at a high-traffic, multi-story, multi-complex work site occupied by numerous contractors and subcontractors.  

OSHA Requirements

The Occupational Safety and Health Act mandates that an employer provide a safe workplace environment for its employees.  State workers’ compensation law creates a barrier for employees injured on the job from filing suit against their immediate employers.  In doing this, the opportunity exists for a different strategy for plaintiffs to file against those in their workplace chain of command.  OSHA regulates workplace safety within multiple industries.  29 CFR 1926 covers construction workplace safety and 29 CFR 1910 covers general industry workplace safety.

When trying to understand the safety roles and responsibilities of each entity at a construction site, the Occupational Safety and Health Administration’s (OSHA) Multi-Employer Directive is a good place to start. It is the framework developed and used by OSHA to allocate responsibility and delegate fines in relation to safety violations.  The Directive identifies the primary types of employers present on a construction site, determines the scope of safety duties for each entity, and defines the reasonable care they are responsible to provide in an effort to ensure the safety of all employees.  The Directive places employers into four categories:  Creating, Exposing, Controlling and Correcting. 

Contractor Responsibility

If a contractor covers a hole in the floor with black plastic but fails to barricade it or mark it as a hole, that contractor would be an example of a Creating Employer.  A contractor who orders his employee into the area where the covered hole is located would be the defined as an Exposing Employer (he has exposed his employee to the hazard by ordering him into the area).  A contractor with supervisory authority to routinely inspect the site might find the hole and recognize the danger; his responsibility to either guard it or require another to correct the situation would classify him as the Controlling Employer (he’s controlling the safety of the work-site).  Finally, the contractor in charge of installing the barricades and warning signs around the hole would be the Correcting Employer.  Seems simple enough, right?  Not so fast.

Each contractor can wear more than one hat of responsibility,  In addition to the contract that spells out what classification of employer a contractor is to be, the activities and behavior of that contractor at the work site can affect its classification as well.  For example, a General Contractor (GC) notices one of the subcontractor’s employees engaging in unsafe behavior and directly corrects him (as opposed to going through his foreman/supervisor).  This action may establish the GC as the subcontracting employee’s safety supervisor.  And if he is injured or killed, the GC may become entangled in the safety duties and responsibilities of that incident.  That simple moment of direct communication can have a legal implication as to the defined role of the employer.

Another example of practical versus contractual definitions is when a smaller GC hires a larger specialty subcontractor, who comes complete with a professional safety staff, inspectors and an established safety protocol of how they execute work tasks.  The GC’s lack of a safety protocol compared to the sophisticated level of the specialty subcontractor’s safety protocol may define the subcontractor as the Controlling Employer.

Now consider the construction worker who injures himself while working for a subcontractor on a building worksite.  Workers’ compensation law prevents him from filing suit against his immediate employer, the subcontractor.  But what about the job foreman and/or the GC?  In fact, some of these types of claims go after the manufacturer of the tool used by the worker when he became injured, or even the manufacturer of a component part of the tool.  Obviously, relationship and strategy may become quite complex and oftentimes require a workplace safety expert to bring an understanding of liability. 

Civil Liability & OSHA Training

It is important to understand that multi-employer liabilities arise not only in the context of regulatory issues, but also in the civil courtroom.  Any contractor meeting the definition of a Creating, Exposing, Correcting, or Controlling Employer may be subject to a lawsuit for damages sustained by an injured worker.  Since OSHA is the authority governing worksite safety, OSHA also establishes the framework for civil litigation.  It is upon this foundation that arguments may be laid to add additional contractors and defendants, who are not covered by worker compensation limitations, in workplace accident litigation.

OSHA provides an outreach training program to teach workers about their rights, employer responsibilities, how to file a complaint, as well as how to identify, abate, avoid and prevent job-related hazards.  OSHA authorizes safety and health professionals who complete an outreach trainer course to conduct occupational safety and health classes for workers.  The OSHA 500 (construction industry) and 501 (general industry) are the “Train the Trainer” workplace safety designators.  This designation requires at least five years of safety management oversight and experience, a 40-hour OSHA regulation review course, completion of a full week of training courses and passing a written examination.  This OSHA training authorization is valid for four years, after which the trainer must take an update course.  Some employers, unions and various other jurisdictions require workers to be OSHA-trained to work on job sites and to fulfill their own safety training goals.  For a complete list of OSHA’s training-related requirements, see OSHA Publication #2254, Training Requirements in OSHA Standards and Training Guidelines.

Engineering experts with industry experience and training may serve as workplace safety experts.  The OSHA expert usually needs the following information to perform his/her investigation: accident reports, copies of any OSHA citations, any studies done by the employer concerning the suspected hazard (air quality studies, noise studies, studies of health problems etc.), and operating instructions for machinery. 

Conclusion

In conclusion, workplace accidents, whether described as construction or general industry, are complicated by multi-party relationships of employers and subcontractors.  Your expert should have industry experience and must understand the OSHA Multi-Employer Directive.  Additional OSHA certifications add to the expert’s credibility and will further strengthen expert opinions.

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