Multi-employer citation questions on hypothetical jobsites

November 9, 2017

Mr. Anthony D. Tilton

Trent Cotney P. A.

Construction Law Group

[Recipient address omitted]

Re: CPL 02-00-124; Multi-Employer Citation Policy

Dear Mr. Tilton:

Thank you for your May 26, 2017, letter to the Occupational Safety and Health Administration (OSHA). In your letter, you reference OSHA compliance directive CPL 02-00-124, the Multi-Employer Citation Policy. You ask OSHA to make enforcement determinations based only on the information you provided or to contact you to obtain additional information so that OSHA can make enforcement determinations.

More specifically, you describe three construction worksite scenarios in which the general contractor observes a subcontractor exposing its employees to fall hazards at the worksite. The general contractor undertakes different actions in each scenario with varying levels of interaction with the subcontractor. You ask OSHA to determine if the general contractor is a "creating, correcting, or controlling employer" based on the facts of each scenario.

In our August 14, 2017, email response and during our August 24, 2017, phone conversation with you, we explained that OSHA conducts fact- and site-specific enforcement evaluations when considering whether to issue citations, so it would be inappropriate for OSHA to provide multi-employer citation determinations based on hypothetical worksite conditions. If OSHA provided guidance based on hypothetical circumstances, employers could misapply the guidance at their real-world worksites where actual facts likely differ from proffered hypotheticals.

Accordingly, OSHA cannot respond specifically to your hypothetical scenarios, but rather recommends that you consider using for your training purposes: examples provided in the relevant compliance directive; court decisions; facts of closed OSHA compliance inspections accessible from the inspection data webpage; and industry-recognized work practices addressing shared safety responsibilities at worksites, including those codified in new or revised construction standards for steel erection, cranes and derricks, power distribution and transmission, and confined spaces.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA’s requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements, but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA’s interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA’s website at http://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Construction at (202) 693-2020.

Sincerely,

Dean McKenzie, Director

Directorate of Construction