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TCA INSTANT!^SMOnline

Employer Liability

What is a multi-employer workplace?
What is the General Duty Clause?
What is a "Creating Employer"?
What is a "Controlling Employer"?
What is a Competent Person?
What is a Qualified Person?
What is an Employer's 4 Point Defense
What are Affirmative Defenses with OSHA?
Are workers comp rules the same in all states?

Question: What is a multi-employer workplace?  TOP

Answer: On multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard.

Question: What is the General Duty Clause?  TOP

Answer: Section 5(a)(1) of the Act requires that "Each employer shall furnish to each of his (sic) employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his (sic) employees." The general duty provisions shall be used only where there is no standard that applies to the particular hazard involved, as outlined in 29 CFR 1910.5(f).

Question: What is a "Creating Employer"?  TOP

Answer: The employer that caused a hazardous condition that violates an OSHA standard.

Question: What is a "Controlling Employer"?  TOP

Answer: 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.

Question: What is a Competent Person?  TOP

Answer: 29 CFR 1926.32(f) states: "Competent person" means on who is capable of identifying existing and predictable hazards in the surroundings or working conditions, which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.

Question: What is a Qualified Person?  TOP

Answer: 29 CFR 1926.32(l) states: "Qualified" means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training and experience, has successfully demonstrated his ability to solve or resolve problems relating to the subject matter, the work, or the project.

Question: What is an Employer's 4 Point Defense?  TOP

Answer: The Employer 4 Point Defense is a list of four criteria which, if satisfied, constitutes an affirmative defense for the employer relative to any OSHA violation found in the workplace. The four points are:

Whose employees were exposed?
Who was the creating employer?
Who was the controlling employer?
Were the employees notified of the hazard and given an alternate means of ensuring worker protection?

These four points play out as follows:

Acme Roofers are working laying roof tile. There is an energized high voltage power line within 5 feet of the roof's perimeter edge. An Acme worker is moving material and makes contact with the power line, electrocutes himself and falls to the ground. Meanwhile, the energy travels through the plumbing fixtures from the roof source and a plumber inside the building gets a severe shock.

The roofer and plumber had employees exposed. But so did the siding people, they just didn't get injured.

There was no creating employer in this incident because the power lines were not brought to the site by any contractor on site.

The controlling employer is multi-level because of the nature of the hazard:

First--the owner of the property had knowledge of the power lines and that hazard was inherent to the site (an inherent hazard is one that is part of the site, not created by persons in the site).

Second--the general contractor was the primary controlling employer as the main supervisor of the site. He had a burden to contact utility companies and get the proper protection in place prior to work authorization.

Third--the roofing and plumbing contractor had a responsibility to conduct a site hazard analysis and ensure the general contractor did his job prior to allowing employees to commence work.

Fourth--all other contractors on site needed to have had a site hazard analysis and to determine if the power lines had the potential to injure their own workers. Siding guys, maybe, painters, probably not.

If any employer engages in the proper actions under the law to meet their burden in addressing the hazard, relative to the four points, that employer will not receive a citation; or, if one is received, it can be withdrawn if the employer fights it. Let's say the siding contractor did all the right things:

Who's employees were exposed? Many, including the siding contractor's.

Who was the creating employer? No one in the site so we default to the controlling employer.

Who was the controlling employer? The G C. The siding contractor notified him of the hazard and asked them to take measures to protect workers.

Were employees given an alternative means of ensuring worker safety? The siding contractor rescheduled work pending the GC's actions to minimize, eliminate or accommodate the hazard.

When OSHA comes out, they find the inherent hazard to have a been a potential hazard to all on site and issue citations to everyone. The siding contractor comes back to OSHA and establishes, through the documentation of the actions they took on the site, that they met the 4-point defense. The siding contractor's citations are withdrawn.

Question: What are Affirmative Defenses with OSHA?  TOP

Answer: The Affirmative Defenses with OSHA are as follows:

1. The employer did not create the hazard.

2. The employer did not have the responsibility or the authority to have the hazard corrected.

3. The employer did not have the ability to correct or remove the hazard.

4. The employer can demonstrate that the creating, controlling and/or the correcting employers, as appropriate, have been specifically notified of the hazards to which his/her employees are exposed.

5. The employer has instructed his/her employees to recognize the hazard and where necessary, informed them how to avoid the dangers associated with it.

Question: Are workers comp rules the same in all states?  TOP

Answer: No. Each state has separate and individually state-regulated laws governing workers comp.