Understanding the Multi-Employer Worksite (Part 3) - The Exposing Employer
Miller & Martin PLLC Blog | June 26, 2018
Any employer whose employees are exposed to a hazard is an exposing employer. The exposing employer in a multi-employer worksite can be cited for a hazardous condition that violates an OSHA standard created by another employer if (1) the exposing employer knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition; and (2) failed to take steps consistent with its authority to protect its employees.
Knowledge of the hazardous condition may be easier to prove than the failure to exercise reasonable diligence to discover a condition, particularly when the exposing employer did not create the hazard.
If the exposing employer does discover the hazard, it has an affirmative duty to protect its employees and must correct the hazard if it has the authority to do so. Without authority to correct the hazard, the exposing employer is still citable if it fails to do three things: (1) ask the creating or controlling employer to correct the hazard; (2) inform its employees of the hazard; and (3) take reasonable alternative protective measures.
If the hazard presents an immediate danger, the potential exposing employer should remove its employees from the job site or risk being cited as an exposing employer.
In short, an employer with knowledge of a hazard created by another employer on a multi-employer worksite has a duty to prevent its employees from being exposed to the hazard. That duty can include correcting the hazard, informing the appropriate employer to correct the hazard and providing alternative protective measures for its employees and removing employees from the job site should the hazard create immediate danger.
Example: Using the example in the prior post where the creating employer failed to provide a guardrail on a ten foot elevated working surface, in order to decrease the possibility of a violation, the exposing employer should (1) install guardrails if it has the authority to do so; (2) request the creating or controlling employer to erect guardrails or other adequate fall protection measures and, in the meantime, institute alternative adequate protective measures for its employees; or (3) if alternative adequate measures are unavailable, remove its employees from the job site until the hazard is corrected.
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