Virginia Multi-Employer Site Safety Issues–and How to Deal with Them

The world of the Owner, Contractor, Subcontractor “straight line” project model is long gone. Increasingly complex construction needs for commercial owners require the services of numerous trades, and even multiple “prime” contractors at times, to perform the various stages of construction.

Because of the complex and multi-employer nature of the modern commercial worksite, as a contractor, you may no longer be responsible only for the safety of your own employees. Depending on the state in which your project is being built, you, as a general contractor, may be responsible for hazards at your worksite that you did not create. On federal job sites (or in states that have merely adopted the federal OSHA standard), one rule applies. In some states that have their own safety regulations, another rule applies.

Under the Federal OSHA guidelines, the state regulations must be at least as stringent as those of the Federal safety regulations. This flexibility allows states to impose stricter (though not more lenient) rules upon construction site contractors. While this flexibility allows state safety officials to better tailor their policies, it has caused confusion in the multi-employer realm.

The 2007 Summit Contractors decision of the Occupational Safety and Health Review Commission (OSHRC) has caused a conflict between the federal multi-employer policy regarding who is responsible for a violation and at least one state’s (Virginia’s) multi-employer policy. The Summit Contractors decision by the OSHRC limited the scope of responsibility for a safety violation to employers that either created the hazard or that exposed its employees or others to the hazard. In a change from prior policy, the OSHRC exempted those employers that merely supervised the job site and had no part in either creating the hazard or exposing employees to the hazard. In short, under federal regulations, mere control of a job site does not expose an employer to OSHA liability.

By contrast and example, the Virginia Occupational Safety and Health (“VOSH”) regulations expose the following four categories of employer to liability for the same unsafe condition: 1. The “Creating Employer” who actually created the hazard, 2. The “Controlling Employer” who has responsibility over the site and has authority to require correction of unsafe conditions for the entire site or the specific area of the site at which the VOSH inspector finds the hazard, 3. The “Correcting Employer” who is responsible for the correction of any hazard, and 4. The “Exposing Employer” who exposes its employees to a hazard whether created by it or not.

In practical terms, this means that, as a general contractor, construction manager, or large subcontractor with supervisory authority over other trades on a construction site, depending on the jurisdiction (state or federal), you could be held accountable for a safety violation caused by other employers over which you have supervision, by contract or otherwise. Under certain circumstances in some jurisdictions, notably Virginia, even an architect or engineer can be cited as a “Controlling Employer.” Therefore, you must exercise reasonable care to assure that the site under your control complies with the applicable standards and do what is prudent to assure job site safety.

The one uniform rule in all jurisdictions is that the creating or exposing employer will be cited should an inspector find a violation. Therefore, any employer on a job site, whether under the federal regulations or a state analog, must assure the safety of its employees both by assuring compliance with the safety standards set forth by OSHA or its corresponding state agency and by keeping its employees out of harms way.

As a subcontractor there are a few things that you can do to minimize the possibility of a citation for the actions of others. First and most obviously, assure that your work is performed safely and that you do nothing that would cause a hazard for either your employees or those of other trades working in the same area of the site.

Second, make sure that you know what trades are working in the same site area where your work is being performed and inform those trades of what safety measures need to remain in place even when your personnel are not present. Also, if informal communication does not cause the employees of others to follow safety measures implemented by you, a written communication to the general contractor or other controlling employer(s), coupled with a diligent effort to correct situations caused by others, will go a long way toward avoiding, or at the very least minimizing, a citation.

Third, should your personnel need to work around a hazard that is in violation of the safety standards, do what you can to correct the situation and reduce employee exposure to the hazard and notify the appropriate controlling employer to correct the situation. As a last resort, and if the situation is not corrected through other methods, remove your employees from the site and inform the general contractor why, both verbally and in writing.

Fourth, assure that you have documented your efforts to remain in compliance. Such documentation could be the difference between an overturned citation and an enforced one.

In conclusion, the multi-employer worksite rules can be confusing and at times contradictory. However, following the practical advice found in this article and consultation with a knowledgeable attorney relating to your safety program can minimize your risk of citation.

Update: Just recently, the 8th Circuit Court of Appeals overruled the OSHRC and aligned the Federal and Virginia Rules regarding supervisory employers. The Court did however indicate that the OSHA regulations may need a thorough review and possible overhaul. I will keep you posted as the progresses. For an EHS Today article on the decision, click here.