New OSHRC Decision – The Importance of Multi-Employer Worksite Precautions

A recent decision by the Occupational Safety and Health Review Commission (OSHRC) underscores the importance of taking proper contractual, oversight, and safety precautions on "multi-employer worksites". In this context, the term "multi-employer worksite" includes not just sites with general contractors and one or more sub-contractors, but also traditional facilities (e.g., manufacturing, chemical facilities, and petroleum refineries) where contractors of any type are performing work.

Secretary of Labor v. A.C. Castle Construction Co., Inc./Daryl J. Provencher, d/b/a Provencher Home Improvement was decided by OSHRC on February 28, 2017, and became final (subject to possible appeal by A.C. Castle to First Circuit Court of Appeals) on April 24, 2017. The case had enough drama for a couple of good Law & Order episodes – most notably, serious deficiencies in the service of the citation to one of the parties and, ultimately, the death of one of the respondents before OSHRC's decision could be issued.

Several trigger happy commentators and reporters appear to be suggesting that OSHRC's decision represents an expansion of how OSHA typically views multi-employer worksites (and, more importantly, apportions blame in the event of an injury or alleged non-compliance). On closer review, however, this doesn't appear to be much of a departure (if any) from OSHA's traditional multi-employer worksite approach. To his ultimate (great) detriment, the general contractor seriously blurred the lines of responsibility between him and his sub-contractor.

A few reminders for those of you who may find yourself at least partially responsible for a multi-employer worksite. These reminders are to ensure (to the extent possible) that your accountability doesn't get expanded beyond what you intended to sign-up for:

1. Have both a contractor qualification program and a contractor safety program. Frequently review both for sufficiency. Consistently enforce both programs, and make sure that they're not just "window dressing". Before contractors start work, ensure that your written contract includes proper safety and compliance clauses, and that both parties understand how those clauses will be enforced.

2. Know what your role is at the site as it relates to employees from other entities. Don’t turn a blind eye to unsafe behavior by another employer's employees, but timely deal with that unsafe behavior through the proper channels (i.e., supervisors from the responsible employer). Avoid scope creep.

3. Ensure all contractors and sub-contractors have supervisors at the worksite at all times. Ideally, ensure that they also have designated safety representatives present (depending upon the nature of the work being done).

4. Don’t let unsafe contractors continue to work at your facility. Consider whether an injury, incident, or near miss warrants an immediate safety stand-down. In more serious cases, think about banning the contractor from the worksite pending a full root cause investigation and the implementation of agreed-up corrective actions (and ensure the underlying contract allows you to take these steps if circumstances warrant).

For more information on how I can help you manage safety and environmental risks for your business or your clients, contact me at whh@haaklawllc.com.