Two outside electrical contractors arrive at a facility to complete work, but fail to check in with building management. They continue on unescorted to a mechanical room. Despite not wearing the proper personal protective equipment, they proceed to remove bolt covers on equipment. These three missteps are the equivalent of strikes one, two and three. And as everyone knows, that’s not good. The electricians initiated an arc blast that caused personal injury to them both, required the complete evacuation of the facility, and resulted in extensive damage to the distribution panel.
Obviously there is a lesson in this real-life scenario, and pending OSHA citations will ensure that this lesson is received. But what may be less obvious is who all will be held responsible for the infractions and the accident that ensued.
“At one time OSHA would only issue a citation in cases where an employer’s own workers caused or were impacted by a hazard,” said John Kovalan, president of Loss Prevention Management Services. “But a court ruling in the mid-1970s created an exception for worksites where multiple employers are present. In these instances, the controlling employer can be found liable for injuries or exposures to any worker, and regardless of who created the hazard.”
There are many situations, such as the one above, in which multiple employer worksite liability comes into play. It may be on a construction site with multiple contractors, at a data center or oil refinery served by various subconsultants, or at a retail mall where many tenants share common infrastructure. These types of environments have an organizational hierarchy much more complex than a site where all workers are in the employ of a single entity. Through its Multi-Employer Worksite Policy, OSHA maintains the authority to designate a controlling employer that is charged with the responsibility and authority for maintaining safe work conditions.
For general contractors, property management firms or any other type of controlling employer, a failure to understand their responsibilities and to act accordingly can have serious effects. The largest monetary penalty proposed by OSHA for fiscal year 2014 involves a real estate and management firm that was cited for not only exposing their own employees to known hazards, but also workers employed by their contractors, a factor that certainly contributed to the severity of the penalty.
Controlling employers have more than just OSHA violations to be concerned with. An injured employee not satisfied with the terms of a workman’s comp settlement may seek further recourse through the courts. In such cases, the representing attorney will seek out all parties that may bear responsibility and will look all the way up the ladder to find the one with the most to exact. Often times, this will be the controlling employer. Operational impacts from a safety-related shutdown can also be more widespread and expensive when multiple employers are involved.
It is for these reasons that the controlling employer needs to be proactive in setting up a safety program that will cover their unique situation.
“Based on the many audits we’ve been involved with, I can tell you that having strong expectations is the biggest factor in mitigating both personal injury, and operational impacts,” Kovalan said. “At site-level data centers or mixed-use facilities, for example, you’re going to want to establish a lockout/tagout program that exceed the applicable standards and OSHA requirements. This should be done prior to mobilizing on site. And it’s very important that all of the engineering services, vendors and contractors are on board.”
These expectations should be precisely spelled out in the contract language and include industry best practices on establishing protocols. Contractors or subconsultants should be required to provide proof that their employees have received documented training and have completed a site orientation. Both internal and external audits of work practices should also be conducted on a regular schedule.
“Preplanning of routine or major maintenance is the foundation of a successful audit,” Kovalan said. “Plan your work in accordance to the requirements of accepted standards and OSHA regulations. Once this is accomplished, sites eliminate hazards and the audit simply becomes a verification that safe work practices are in place. The byproduct of the pre-planning is an efficient process where safety is merged with operational requirements.”
Should an audit reveal that a worker is not incompliance, work activity at the facility should cease immediately. Supervisors should coordinate corrective measures and retraining efforts, and every action should be thoroughly documented. In some instances, progressive discipline procedures may be warranted.
“Again, it’s all about having high expectations, both in mitigation and response,” Kovalan said. “This is true in any workplace safety environment, but the stakes and responsibilities are much higher on a multi-employer worksite. It can be a very complex process, but over the years our people have developed procedures and best practices that have proven very effective in maintaining compliance, while avoiding liabilities and operational impacts.”
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