The Multi-Employer Doctrine or MED imposes liability upon companies sharing a workplace with others, for the violation of Occupational Safety and Health Standards or OSHA Regulations. Under MED, employers may be held responsible for "hazardous conditions" they did not "create" and for which their employees were never even "exposed." Yet MED is just one of many federal laws that "blindside" employers with exposure to significant liabilities that most employers neither anticipate nor foresee. [See “How Routine Construction Activities Create Liability for Hazardous Waste Under CERCLA,” posted 7/9/23].
MED has special application to safety in the workplace. Using construction as an example, which is just one of many dangerous industries. Since 2012, the construction industry has experienced more deaths than any other. Most construction related deaths (approximately 1/3) result from falls, whether off a roof, scaffold, or ladder. Most fatal falls involve workers of small employers with fewer than 20 employees (approximately 75%). Most deaths involve male-workers, and the percentage of Hispanic workers is growing at an alarming rate. Other significant causes of fatalities in the construction industry include struck by incidents, electrocutions, explosions/fires, and trench collapses. [See “Fatal Trench Collapse Results in Manslaughter Charges Against Company Owner and Backhoe Operator,” posted 3/29/23].
Since 1970, the health and safety of workers upon construction sites has been primarily governed by Federal law, administered by OSHA. However, as of 2022, twenty-two States known as Non-OSHA States adopted their own State OSHA Plans, a majority of which mirror the Federal OSHA standards verbatim. But 4 States, including California, Oregon, Michigan, and Washington have adopted standards more stringent than those imposed by Federal OSHA. Once a State OSHA Plan and State enforcement is found to be “at least as effective” and protective as its Federal OSHA counterpart, responsibility for safety and health of workers may be relinquished to the State subject to annual monitoring by Federal OSHA. Still, in those States where the State OSHA Plan is not as effective or enforcement not as broad as Federal OSHA, a mixture of both State and Federal OSHA standards may apply.
Federal OSHA and most State OSHA Plans evaluate and issue citations based upon MED to companies involved with multi-employer work places. Under MED, there are four categories of employers who may be cited for “hazardous conditions” in the workplace. With respect to construction sites, these categories encompass nearly all entities, including owners, architects, contractors, and subcontractors.
- Category #1 is the “creating employer” who causes a “hazardous condition” in violation of an OSHA standard that exposes its employees, or those of other employers, to such hazard.
- Category #2 is the “exposing employer” who knows of, or should know of, a “hazardous condition” and fails to take steps to protect its employees from such condition. To avoid a citation, the “exposing employer” must: 1) correct the “hazard” if it has authority to do so, or 2) ask the “creating employer” or “controlling employer” to correct the “hazard”, and take reasonable measures to protect its employees, including removal from the job-site.
- Category #3 is the “correcting employer” engaged in a “common undertaking” on the same worksite as the “exposing employer” and fails to take reasonable care to prevent or discover a “hazardous condition” when it has a duty to do so and avoid exposing any employee to a "hazard." To avoid a citation, any “correcting employer” under a duty to install or maintain safety equipment must comply with such duty and correct the “hazardous condition”.
- Category #4 is the “controlling employer” who fails to exercise reasonable care and has general supervisory authority over a worksite, including the authority to correct “hazardous conditions” or require others to correct a “hazard” that exposes any employee to such “hazard.” To avoid a citation, the “controlling employer” must exercise reasonable care, including periodic inspection of the worksite, and implementing a safety and health compliance program, that requires the correction of “hazards”.
Obviously these four categories are intended to cast a broad net of responsibility over any company involved with a multi-employer workplace.
Applying these four categories to a construction site, shows the broad reach of the MED. General contractors, who typically control the worksite, fall victim to citations under MED more than any other stakeholder under categories 1-4. Subcontractors, who control, their workers, are next and likewise face broad exposure to citations under categories 1-3. Even owners, who generally have few, if any, employees on a construction site, may face citations under categories 2-4. And finally, companies who have no employees on a workplace, may have non-traditional employees whom they do not recognize as such based upon the “borrowed servant Rule”. [See, “Why Every Owner and Contractor Must Beware of the Borrowed Servant Rule," posted 2/2/23].
The same manner in which these four categories apply to construction is equally applicable to any company involved upon a multi-employer work place. Consequently all companies in any industry involved upon multi-employer work sites must beware of their responsibilities and liabilities imposed under MED.