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Written By: Robert E. Sheriff, MS, CIH, CSP, President
October 31, 2019
The Answer is Yes!
OSHA established a specific guideline back in 1999 on whether an Owner, Contractor, Manager, General Contractor, or Subcontractor could be given a citation even though the offender is not their employee. They have supported their guidelines since then with little change.
The general wording is: if an employer meets the criteria of CREATING, CONTROLLING, EXPOSING OR CORRECTING employer, it has responsibility for OSHA Compliance (and potential fines for violations).
There is a second step to the determination process as well, and that is: Did the employer who meets the criteria take sufficient steps to meet the requirements of the OSHA Standard? This could include an Owner, Construction Manager (CM), General Contractor (GC) or subcontractor (who may have other subcontractors under his control.
IMPORTANT NOTE: The contract does not have to be in writing! As long as the entity has supervisory or controlling authority—contract or not—there is a responsibility for health and safety.
Often there is no specific language regarding safety but this does not exempt the GC or CM or a subcontractor from such obligations. It is the practical reality of where the entity does have authority (Exposing, Creating, Correcting, Controlling).
The more likely exceptions are between an Owner and CM when the Owner does not have any direct individual control of the construction work. Another possible exception is some government contracts (State, Federal) where there are third party inspectors for maintaining safety and health compliance (as long as the project is not exempt from OSHA jurisdiction!)
If the contractor took appropriate steps to require a subcontractor to take necessary steps to comply with safety requirements such as having a safety program that addresses all the reasonable safety and health requirements of the tasks performed. The contractor may then be exempt from citations even though the subcontractor was cited.
The greatest time to be concerned about such citations is when a serious injury, multiple injuries or a fatality occurs at a construction site—(fatality-reporting within 8 hours, hospitalization, multiple injured, amputation-24 hours).
The jurisdictions and exemptions can get complicated. Often, we can help.
1. OSHA Standard 29CFR1926.16.
2. Standard Interpretation letter dated December 13, 2001. Reference CPL 2-0.124, Multi-Employer Citation Policy.
3. OSHA Standard 29CFR1904.39-Reporting Requirements.
To learn more about whether your construction company can be held liable for OSHA citations and fines contact Atlantic Environmental.
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