Employer citations at construction multi-employer worksites

August 31, 1990
Ms. Ellen Zielinski, Editor
American Society of Safety Engineers
[Recipient address omitted]
Dear Ms. Zielinski:
Thank you for your letter of May 18, requesting clarification of 29 CFR 1926.16 as it relates to construction multi-employer worksites.
29 CFR 1910.12(c) (Construction Work) states, "Construction Safety Act distinguished. This section adopts as Occupational Safety and Health standards, under section 6 of the Occupational Safety and Health Act (OSH Act), the standards which are prescribed in part 1926 of this chapter. Thus, the standards (substantive rules) published in Subpart C and the following subparts of part 1926 of this chapter are applied. This section does not incorporate Subparts A and B of part 1926 of this chapter. Subparts A and B have pertinence only to the application of section 107 of the Contract Work Hours and Safety Standards Act (the Construction Safety Act) (emphasis added). For example, the interpretation of the term "subcontractor" in paragraph (c) of 29 CFR 1926.13 of this chapter is significant in discerning the coverage of the Construction Safety Act and duties thereunder. However, the term "subcontractor" has no significance in the application of the Act, which was enacted under the commerce clause and which establishes duties for "employers" which are not dependent for their application upon any contractual relationship with the Federal Government or upon any form of Federal financial assistance" (emphasis added).
Therefore, 29 CFR 1926.16, as part of Subpart B (General Interpretation), has pertinence only to the application of section 107 of the Contract Work Hours and Safety Standards Act (The Construction Safety Act) and has no direct significance in the enforcement of the OSH Act.
However, irrespective of 29 CFR 1926.16, the Occupational Safety and Health Administration (OSHA) does have a policy on multi-employer worksites, as enunciated in the OSHA Field Operations Manual (FOM), Chapter V, Section F (Multi-employer Worksites).
The FOM states that, on multi-employer worksites, citations shall be issued to employers whose employees are exposed to hazards, unless such an employer meets all of the conditions for a legitimate defense. If an employed meets all the conditions for a legitimate defense, he or she will not be cited. In addition, if employees of more than one employer are exposed, citations will normally be issued to each of those employers, the employers responsible for correcting or ensuring the correction of the conditions, and/or the employer causing the conditions. If all employers on a worksite with employees exposed to a hazard meet the conditions for a legitimate defense, then the citation shall be issued to only the employers who are responsible for creating the hazard and/or who are in the best position to correct the hazard or to ensure its correction. In such circumstances the controlling employer and/or hazard-creating employer shall be cited even though no employees of those employers are exposed to the hazard. The only exception is when the General Duty Clause is used to support a violation. In such cases, only employer(s) whose own employees are exposed to the hazard may be cited.
As I stated earlier, while 29 CFR 1926.16 may have no direct significant application to the OSH Act, the policy on multi-employer worksites addressed most of the responsibility problems mentioned in your inquiry. I think the important point to make to the members of the American Society of Safety Engineers is that, while 29 CFR 1926.16 has limited application to construction employers in general, the intent exists in the implementation of OSHA's policy of ensuring, as far as possible, a safe and healthful workplace for American workers.
Thank you and the membership for your continued interest in occupational safety and health.
Sincerely,
Gerard F. Scannell
Assistant Secretary
[Corrected 3/19/2009]