OSHA’S Multiemployer Citation Policy

How the Issuance of an OSHA Citation Can Affect Your Liability Position in a Third Party  Personal Injury Suit 

Many of our clients are required to perform their business operations in accordance with the Occupational Safety & Health Act (“OSHA”) and the regulations promulgated thereunder.  Unfortunately, worksite accidents occur all too frequently despite even the strictest safety procedures.  Immediately following an accident, a business can expect a visit from an OSHA inspector and citations for violation of various OSHA regulations and accompanying fines with respect to the occurrence of that accident.

Employers are generally immune from suit by their own employees under the Workmen’s Compensation Act.  However, there are many situations that can result in a third party personal injury lawsuit following a worksite accident.  This article examines OSHA’s Multiemployer Citation Policy and the impact that OSHA standards and citations can have in a third-party personal injury lawsuit.

OSHA’s Multiemployer Citation Policy

Worksites involving employees working for multiple employers are common, particularly in the construction and manufacturing industries.  On a construction site, the project manager may work for the general contractor, but the construction crew may involve skilled labor from a number of subcontractors.  In a manufacturing context, the facility may be owned by one company (who may or may not have employees on-site), operations may be conducted by employees of a second company, and maintenance may be regularly conducted by employees of yet a third company.  OSHA refers to all such worksites as multiemployer worksites.

The Department of Labor polices multiemployer worksites through its Multiemployer Citation Policy (“MECP”).[1]  Under the MECP, OSHA can and will issue citations to one or more employers at a multiemployer worksite, regardless of whether the injured individual is a common-law employee of that employer or a third party.

The first step under the OSHA MECP is for OSHA to categorize each of the relevant employers at a multiemployer worksite based on their respective roles.  The MECP categorizes employers into four groups – controlling, creating, exposing, and correcting.  A controlling employer is one with general supervisory authority over the worksite that has the power to correct safety and health violations or to require others to correct such hazards.  A creating employer is one that causes a hazardous condition in violation of an OSHA regulation.  An exposing employer is one whose employees are exposed to the hazard at the worksite, even if it did not create the hazard and is not in control of the worksite.  Finally, a correcting employer is one that is responsible for correcting the relevant hazardous condition at the worksite.

Once OSHA categorizes an employer under the MECP, OSHA will evaluate whether the employer met its obligations under OSHA requirements.  If OSHA determines that the employer did not exercise reasonable care pursuant to its role at the worksite, then OSHA will issue a citation to that employer.

Under the MECP an employer can be categorized as more than one type of employer, but the first part of the analysis is always to determine whether an employer has exposed its own employees to a hazard in violation of OSHA standards.  If an employer exposes its own employees to a hazard, even if the employer did not create the hazard and does not control the worksite, it will be categorized as an exposing employer.  Only exposing employers can be cited for general duty clause violations under OSHA standards.  If OSHA determined that a hazard exists at a worksite in violation of OSHA standards and that an employer exposed its own employees to that hazard, whether the exposing employer is cited for an OSHA violation will depend on whether the employer exercised reasonable care consistent with its level of authority at the worksite.

If the exposing employer has the authority to correct the hazard, then it will be cited for failing to do so if (1) it knew of the hazard or failed to exercise reasonable diligence to discover the hazard, and (2) failed to take steps consistent with its authority to protect its employees.  If the exposing employer lacks the authority to correct the hazard, then it will be cited if (1) it fails to ask the creating and/or controlling employer to correct the hazard, (2) fails to inform its employees of the hazard, or (3) fails to take reasonable alternative protective measures.  OSHA’s MECP is clear that in extreme circumstances, such as situations of imminent danger, an exposing employer can be cited for failing to remove its employees from the site to avoid the hazard.

Any employer that creates a hazardous condition in violation of OSHA standards will be categorized as a creating employer.  If an employer both creates a hazard and exposes its own employees to it, OSHA will determine whether to cite the employer based on the analysis described above for exposing employers.  If, on the other hand, an employer creates a hazard but does not expose its own employees to the hazard, OSHA will determine whether to cite the employer by determining if the employer exercised reasonable care to ensure that no employees (its own or anyone else’s) were exposed to the hazard.

A correcting employer is one that is responsible for correcting a particular violation of OSHA standards at the worksite.  This commonly occurs when a specific employer at a worksite has responsibility for installing and/or maintaining particular safety equipment or devices.  A correcting employer must exercise reasonable care in preventing and discovering OSHA violations and must meet its obligations to correct the hazard in order to avoid an OSHA citation.

A controlling employer is one who has general supervisory authority over the multiemployer worksite.  Control can be established by contract or by actual practice.  A controlling employer must exercise reasonable care to prevent and detect violations of OSHA standards at the worksite.  Reasonable care generally requires periodic inspections of the worksite, implementation of an effective system for correcting hazards, and effective enforcement of a worksite-wide safety and health compliance program.

An important question in most OSHA investigations will be whether the controlling employer conducted inspections effectively and frequently enough.  Under the MECP, OSHA considers several factors when evaluating whether a controlling employer met its standard of care with regard to inspections.  First, OSHA will consider the scale of the project and the nature and pace of the work.  Projects and worksites that involve more frequent hazards or where the types of hazards change generally require more frequent and in-depth inspections.

Second, OSHA considers the controlling employer’s familiarity with the other employers working on-site.  If the controlling employer knows or should have known that another employer has a history of OSHA violations, the controlling employer will have a higher burden to inspect and monitor the worksite.  At the same time, if the controlling employer has never before worked with another employer at the site and does not know its compliance history, OSHA will expect more frequent inspections, particularly at the beginning of the project.  On the other hand, if the controlling employer sees strong indications that the other employers at the site have implemented effective safety programs, fewer inspections will be required.

Effects of an OSHA Citation on Subsequent Litigation

Following a serious workplace accident, the filing of a lawsuit by the injured party or their representatives has become virtually inevitable.  While a worker’s common law employer may be immune to suit because of the Workman’s Compensation Act, anyone else involved in the accident, including other employers at a multiemployer worksite, may become defendants.[2]  For defendants, regardless of their relationship to the injured worker, one of the most important questions in defending the lawsuit will be whether OSHA citations were issued.  As discussed below, past decisions by Pennsylvania appellate courts and the Third Circuit Court of Appeals have clarified that evidence of OSHA violations is admissible to prove negligence under Pennsylvania law,[3] but proof of an OSHA violation is not determinative as to liability.

The Pennsylvania Superior Court first examined the admissibility of OSHA regulations in civil litigation in 1982 in Brogley v. Chambersburg Engineering Co. 306 Pa. Super. 316, 452 A.2d 743.  In Brogley, the Superior Court considered whether it had been proper for the trial court to admit relevant OSHA safety regulations into evidence.  452 A.2d at 745-746The Brogley court specifically stated that no other Pennsylvania court had had occasion to rule on the admissibility of OSHA regulation as evidence of negligence.  It did note, however, that courts of many other jurisdictions had found OSHA regulations to be admissible as a standard of care, the violation of which is evidence of negligence, 452 A.2d at 745-46.  The Brogley court ultimately held that the admission in evidence of OSHA regulations at the trial court level was not error when admitted to show the employer’s duty of care.  Id. at 747.  However, the Brogley court did not specifically rule on whether proof of a violation of OSHA regulations was admissible as proof of a violation of the standard of care and, if so, whether proof of an OSHA violation was dispositive on the issue of negligence (aka negligence per se).

The Superior Court addressed those issues three years later in Wood v. Smith.  Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601 (1985).  In Wood, the Superior Court cited Brogley for the proposition that evidence of OSHA regulations is admissible as a standard of care, the violation of which is evidence of negligence but is not conclusive proof of negligence.  495 A.2d at 603.  The Wood court held that evidence of the OSHA standards and violation was properly admitted at the trial level, although it reversed because of other inadequacies in the jury instructions.

The United States Court of Appeals for the Third Circuit, sitting in diversity and applying Pennsylvania law, has also ruled that OSHA regulations are admissible as proof of a standard of care and that a violation of the OSHA regulation is proof of negligence, but is not conclusive proof of negligence (negligence per se).  Rolick v. Collins Pine Co., 975 F.2d 1009 (3rd Cir. 1992).  In Rolick, the trial court excluded evidence regarding OSHA regulations and the defendant’s alleged admission that it violated the OSHA regulations on the basis that OSHA is limited to employees and the plaintiff was not an employee of the defendant.  Id. at 1012-1014.  The Third Circuit ruled that excluding the evidence was an abuse of discretion, as Pennsylvania law permitted the plaintiff to “borrow” the OSHA regulations as evidence of the standard of care owed to him.  Id. at 1014 (citing Brogley).

The Third Circuit also considered the plaintiff’s argument that once he established a violation of the OSHA regulations that he was entitled to judgment as a matter of law because the defendant’s negligence was conclusively proven by the violation.  Id. at 1014-1015.  The Third Circuit rejected this argument, citing Wood for the proposition that an OSHA violation is relevant to the issue of negligence but is not conclusive proof of negligence.[4]

Proof of an OSHA violation can be relevant in subsequent litigation even if the citation was not given to any of the parties in the lawsuit.  In 2006, the Pennsylvania Superior Court once again addressed the relevance of OSHA regulations in a negligence action.  Birt v. FirstEnergy Corp, 891 A.2d 1281.  In Birt, the plaintiff worked for an excavating company working as a subcontractor on the construction of a home.  Id. at 1284.  The excavating work was being interfered with by some overhanging power lines.  Id.  The plaintiff suggested that he tie the power lines together to get them out of the way, was lifted up in the excavator for that purpose, and was eventually struck by 7200 volts of electricity and severely injured.  Id. at 1284-1285.  The plaintiff filed suit against his employer, the homeowners, the general contractor, and the power company.  Id.

The trial ultimately proceeded only against the power company, which introduced evidence at the trial of OSHA regulations and an OSHA citation against the plaintiff’s employer.  Id. at 1290.  The plaintiff argued that such evidence was irrelevant because the plaintiff had never been cited with an OSHA violation.  Id.  The Superior Court disagreed and held that OSHA regulations are generally admissible to prove the standard of care.  Id.  The Superior Court also ruled that evidence of a third-party’s OSHA violation, namely the plaintiff’s employer, was relevant because it allowed the jury to consider whether the plaintiff’s injuries were caused by something other than the defendant power company’s negligence.  Id.

The cases discussed above all indicate that the prevailing law in Pennsylvania is:  (1) OSHA regulations can be used as evidence of the standard of care owed to a plaintiff; (2) evidence of an OSHA citation can be used as evidence that the standard of care was breached, and (3) evidence of an OSHA citation is not conclusive proof of negligence (negligence per se).  Under the state of the law as it currently exists in Pennsylvania, it is imperative for businesses and business owners to understand OSHA’s Multiemployer Citation Policy and to act proactively if and when a major worksite injury occurs.

[1]See Occ. Safety and Health Admin., Dep’t of Labor, CPL 02-00-124, OSHA Instruction:  Multiemployer Citation Policy (Dec. 10, 1999).

[2]See, e.g., Birt v. Firstenergy Corp., 891 A.2d 1281 (Pa. Super. Ct. 2006) (worker injured by power lines filed suit against general contractor, employer, property owner, and electric company).

[3] Courts of numerous other jurisdictions have passed on these same issues with varied results.  See Hogan & Moran, Occupational Safety and Health Act, Vol. 2 Sec. 12.01[2], n.18; see,e.g.,Practico v. Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985) (OSHA violation constitutes negligence per se under Federal Employers’ Liability Act (“FELA”)); Teal v. E.L. DuPont de Nemours & Co., 728 F.2d 799 (6th Cir. 1984) (refusal to instruct jury on the issue of negligence per se for violating OSHA regulation constitutes reversible error under Tennessee law); Walton v. Potlach Corp., 781 P.2d 229 (Idaho 1989); Koll v. Manatt’s Transp. Co., 253 N.W.2d 265 (Iowa 1977) (OSHA violations are negligence per se as to employee but only evidence of negligence as to all others likely to be exposed to injury); butseeMejerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981) (OSHA regulations are evidence of negligence under general maritime law but violation thereof is not negligence per se); Wendland v. Ridgefield Constr. Serv. Inc., 439 A.2d 954 (Conn. 1981) (violation of OSHA is merely evidence of negligence, not negligence per se): Jupiter Inlet Corp v. Brocard, 538 So.2d 857 (Fla. Dist. Ct. App. 1988) (admission of OSHA regulations harmless error where jury instructed that violation was not negligence per se); Hebel v. Conrail, 475 N.E. 2d 652 (Ind. 1985) (OSHA violations not negligence per se in FELA case).

 [4] The Third Circuit also rejected this approach under federal law as a matter of statutory interpretation.  In Ries v. National R.R. Passenger Corp., decided the same year, the Third Circuit analyzed the statutory language of OSHA and the Federal Employer’s Liability Act (“FELA”).  960 F.2d 1156, 1165 (3rd Cir. 1992).  The Third Circuit ultimately ruled that proof of an OSHA violation could not be used to establish negligence per se for purposes of FELA.  Id.

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