OSHA's Silica Standard & the Multi-employer jobsite

By Mike Bales

With OSHA’s New Silica Standard going into effect on September 23, 2017, many employers are in the fourth quarter scramble to get their affairs in order and compliant. However, on multi-employer jobsites, construction companies seem to have more questions than answers. Under OSHA’s Multi-Employer Citation Policy (MECP), OSHA has the authority to cite four entities for a single hazard: the Creating employer, Exposing employer, Correcting employer, and the Controlling employer.

The Creating employer is the employer that caused the hazard violating an OSHA standard. For silica, the Creating employer would be the company that does not control their dust and the result of their work activities creates a situation where employees would be over-exposed to silica dust. An employer that creates this type of situation is citable by OSHA even if the only exposed employees belong to other companies. The only defense for the Creating employer is to follow the silica standard and control their silica-resulting tasks for themselves and others on the jobsite.

The Exposing employer is the employer whose own employees are exposed to the hazard. This begs the question: what if I am an employer that does not produce a silica hazard (such as a plumber)? Am I still citable for a hazard the masons on site create? The answer is YES! Remember, OSHA’s basic expectations for your employees are to create a workplace free of recognized hazards. If a hazardous situation is created by another contractor you must (1) ask the creating and/or controlling employer to correct the hazard; (2) inform your own employees of the hazard; and (3) take reasonable alternative protective measures. In extreme cases, the Exposing employer may have to make a critical decision to remove their employees to avoid exposing them to the silica hazard.

The Correcting employer is responsible for correcting the hazard. This typically is an employer who is given responsibility of installing/maintaining safety devices/equipment, such as a barrier wall protecting employees performing silica tasks from adjacent workers. The Correcting employer must exercise reasonable care in preventing and discovering hazards with the barrier wall and meet its obligations of correcting the hazard. Otherwise, they are risk of being cited by OSHA.

Finally, the Controlling employer is the employer who has general authority over the worksite; either through contractual obligation or by the exercise of control in practice to correct safety violations itself or require others to do so. The Controlling employer is responsible for exercising reasonable care to prevent and detect hazards on the jobsite. Reasonable care varies according to several factors: (1) scale of the project; (2) the nature and pace of the work, including the frequency with which the number or types of hazards change as the work progresses; (3) how much the Controlling employer knows about the safety history and safety practices of the employer it controls and about that employer’s level of expertise; and (4) the safety and health experience of the employer it controls. For example, if the Controlling employer knows that the subcontractor has a history of noncompliance, more frequent inspections are usually needed.

There are several accepted practices the Controlling employer can adopt to aid in reasonable care under the new silica standard: (1) verify training on the new silica standard for employers under your control; (2) get copies of their written exposure control plans. This shows they know their expectations and allows you to verify the plan is in practice in the field during your inspections. (3) conduct periodic inspections of silica tasks of appropriate frequency; (4) implement an effective system for promptly correcting hazards related to silica; (5) enforce the other employer’s compliance with the silica standard with an effective, graduated system of enforcement and follow-up inspections. For example, this means in OSHA’s eyes if a subcontractor does not comply with the requirements of the silica standard and continues to ignore the Controlling employer’s requests to control the silica hazards, the expectation would be to part ways with that subcontractor or face a citation under MECP.

ABC of WI is here to help. For more information regarding multi-employer jobsites under the new silica standard or for help developing/implementing your safety program, contact the chapter office and ask for one of the four safety managers.