Understanding Multi-Employer Workplace Liability
By: Benjamin Merrill
In several industries, there are situations where multiple employers perform work or are otherwise affiliated with a single worksite. One common example of a multi-employer worksite would be a construction project where a general contractor and numerous subcontractors all work at the same worksite.
For example, Iowa Occupational Safety and Health Act (IOSHA) recognizes four circumstances where an employer can be held liable under the multi-employer worksite doctrine:
1. Creating employer
The employer causes the hazardous condition that violates the IOSHA standard.
2. Exposing employer
The employer’s own employees are exposed to the hazard.
3. Correcting employer
The employer is engaged in a common undertaking at the same workplace as the exposed employer and is responsible for correcting a hazard.
4. Controlling employer
The employer has general supervisory authority over the worksite, by contract or by the exercise of control in practice, including the power to correct safety and health violations itself or to require others to correct them.
Of these four categories of employers who can be liable for an IOSHA violation at a worksite, the requirements of a controlling employer (also referred to as the premises owner) have been the subject of the most discussion by IOSHA and the courts. Significantly, the controlling employer has a lesser duty to exercise reasonable care than is required of an employer with respect to protecting its own employees. Various factors affect how frequently and closely a controlling employer must inspect the worksite to meet its standard of reasonable care, including:
- the scale of the project
- the nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses
- the controlling employer’s knowledge about the safety history and safety practices of the employer it controls and about that employer’s level of expertise.
More frequent inspections are typically needed if the controlling employer knows that the other employer has a history of noncompliance or if the controlling employer has never worked with the other employer and does not know its compliance history. Less frequent inspections are appropriate where the controlling employer sees strong indications that the other employer has implemented effective safety and health efforts. A high level of compliance by the other employer is an important indicator of effective safety and health efforts. Other important safeguards for controlling employers include the use of an effective, graduated system of enforcement for noncompliance with safety and health requirements coupled with regular jobsite safety meetings and safety training.
Employers affiliated with a multi-employer worksite should take steps to limit their IOSHA liability for injuries on the worksite. Suggested steps include the following:
- drafting unambiguous contract provisions that clearly allocate responsibility for safety and health compliance at the worksite
- investigating the safety and health history and competence of other employers at the worksite
- routinely inspecting the worksite to ensure IOSHA compliance and immediately correcting any potential hazards
- implementing an effective system for promptly correcting hazards (designating a specific individual employed by the contractor to address and resolve safety issues)
- enforcing the contractor’s compliance with safety and health requirements with an effective, graduated system of enforcement (a system that provides for warning, penalties and, ultimately, termination of the contract for safety violations) and follow-up instructions.