Workshop BB Passionate about Safety … “Tag, You’re It!” A Priceless Guide to Knowing Who’s Liable Under OSHA’s Multi-Employer Policy Wednesday, March 27, 2019 8:00 a.m. to 9:15 p.m.
Biographical Information David Arthur, Corporate Health and Safety Manager Environmental Quality Management, Inc. 1800 Carillon Boulevard, Cincinnati, Ohio 45240 513-742-7297 darthur@eqm.com www.eqm.com Mr. Arthur has more than thirty years of both governmental and commercial experience as an occupational safety and health manager. Mr. Arthur has built, managed, and trained on safety and health programs since 1988, and was heavily involved in shipping hazardous materials by air since 1982. Having been a member of both the Air Force and Air National Guard, he was instrumental in building and managing the programs for the more than 2,000 personnel assigned to the units for which he was responsible. Mr. Arthur is an experienced mishap investigator and adult educator, at one point working as a university-level instructor and curriculum developer. He holds a BS in Environmental Health from Boise State University, ID, has three USAF Associate Degrees, and lives in Cincinnati with his beloved wife and dogs.
Tag, You’re It! A Priceless Guide to Knowing Who’s Liable Under OSHA’s Multi‐Employer Policy 3/7/2019 1
Incidentals • Presenters • David Arthur, EQM Corporate H&S Manager • Nicholas Ehrke, Ohio EPA Agency Safety Manager • Agenda • Part 1 – Digesting the CPL • Part 2 – Exercises • Questions & Answers 3/7/2019 2
"The best executive is one who has sense enough to pick good people to do what he wants done, and self-restraint enough to keep from meddling with them while they do it." Theodore Roosevelt President 3/7/2019 3
Defining The Process • OSHA CPL 2‐0.124 ‐ Multi‐Employer Citation Policy • OSHA’s “Two Step Process” – Step 1 – Is the employer a creating, exposing, correcting, or controlling employer? – Step 2 – Was the employer's actions sufficient to meet the obligations for safety? 3/7/2019 4
Defining The Employer Type Creating, Exposing, Correcting, Controlling 3/7/2019 5
Defining The Employer Type • Step 1 – The “Creating” Employer Definition : The employer that causes a hazardous condition that violates an OSHA standard. 3/7/2019 6
Defining The Employer Type • Step 1 – The “Exposing” Employer Definition : An employer whose own employees are exposed to the hazard. 3/7/2019 7
Defining The Employer Type • Step 1 – The “Correcting” Employer Definition : Employers engaged in a common task on the same worksite as the exposing employer, and is responsible to correct hazards. 3/7/2019 8
Defining The Employer Type • Step 1 – The “Controlling” Employer Definition : An employer with general supervisory authority, including the power to correct safety and health violations itself or require others to do so. “Control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.” 3/7/2019 9
Defining The Employer Type Did You Exercise Enough Responsibility? 3/7/2019 10
Determining Employer Actions Step 2 – Actions Taken: A controlling employer must exercise “reasonable care” to prevent/detect violations on the site. • The extent of measures that satisfy the duty of reasonable care is less than what an employer is required to protect its own workers. • This means the controlling employer is not normally required to inspect as frequently, or to have the same level of safety knowledge as the employer it hires. 3/7/2019 11
Determining Employer Actions The Reasonable Care Standard Factors: The factors affecting how frequently and closely a controlling employer must inspect to meet the standard include: • The scale of the project; • The nature and pace of the work, to include the frequency with which the number or types of hazards change as the work progresses; • How much the controlling employer knows both about the safety history and safety practices of the employer (Subs) it controls and about that employer's level of expertise. 3/7/2019 12
Determining Employer Actions The Reasonable Care Standard Factors (Continued): • More frequent inspections are normally needed if the controlling employer knows that the other employer has a history of non‐compliance. • This may also be needed, especially at the beginning of the project, if the controlling employer had never before worked with this other employer and does not know its compliance history. 3/7/2019 13
Determining Employer Actions The Reasonable Care Standard Factors (Continued): • Less frequent inspections may be okay when there are strong indications the other employer has implemented effective safety efforts. – The most important indicator of an effective effort is a consistently high level of compliance. – Other indicators include the use of an effective, graduated enforcement system for non‐ compliance, coupled with regular safety meetings & training. 3/7/2019 14
Determining Employer Actions The Reasonable Care Standard Factors (Continued): • In evaluating whether a controlling employer exercised reasonable care, consider such things as whether they: – Conducted periodic inspections of appropriate frequency – Implemented an effective system for promptly correcting hazards – Enforces the other employer's compliance with an effective, graduated system of enforcement and follow‐up inspections. 3/7/2019 15
Determining Employer Actions Control Established by Contract: When the employer has a specific contract right to control safety, the employer must itself be able, or to require another employer, to prevent or correct the violation. • One source of this ability is explicit contract authority. • This can take the form of a specific contract right to require another employer to adhere to safety and health requirements and to correct violations the controlling employer discovers. 3/7/2019 16
Determining Employer Actions Control Established by a Combination of Other Contract Rights: Where there is no explicit contract provision granting the right to control safety, or where the contract says the employer does not have such a right, an employer may still be a controlling employer. 3/7/2019 17
Determining Employer Actions Control Established by a Combination of Contract Rights: This situation can result from a combination of contractual rights that, together, give the contractor broad enough responsibility so that its contractual authority necessarily involves safety. • The authority to resolve disputes between subs • Set schedules & determine construction sequencing 3/7/2019 18
Putting Knowledge Into Practice 3/7/2019 19
Recap • In this presentation we covered… • OSHA Uses a 2‐Step Process • What Type of Employer Are You? • What Are Your Safety Responsibilities? 3/7/2019 47
Remaining Curiosities 3/7/2019 48
“It will never happen to me!” EJ Smith Captain of the Titanic Quoted in the press just before sailing 3/7/2019 49
The End… Thank you for your time! 3/7/2019 50
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