May 23, 2001
Mr. Dino V. Gigante
45 Wanders Drive
Hingham, MA 02043
Re: CPL 2-0.124 ("Multi-Employer Citation Policy"); self-employed contractors
Dear Mr. Gigante:
This responds to your March 8, 2001, letter to the Occupational Safety and Health Administration (OSHA). We have paraphrased your questions below:
Question 1: Can OSHA cite a self-employed individual working on a construction site for violations of OSHA construction standards?
Answer: No. If a construction worker is truly self-employed — is not an employee — and has no employees working for him or her, OSHA has no authority to require that individual to abide by OSHA construction requirements.
Question 2: What can be done to address unsafe practices by a self-employed individual?
Answer: Although OSHA has no authority to issue citations to a self-employed construction worker (with no employees), where a general contractor has hired that individual to work at the site, the general contractor can, by contract, require that individual to abide by the practices set out in OSHA standards. In other words, OSHA's lack of compliance authority does not restrict the general contractor from instituting workplace safety requirements on the individual by contract. Note, though, that OSHA does not have the authority to compel the individual to abide by such contract requirements.
OSHA construction requirements must be met by employers where employees are exposed to a hazard created by a self-employed worker. The extent of an employer's obligations regarding hazards created by others is explained in [CPL 02-00-124 (formerly CPL 2-0.124)] ("Multi-Employer Citation Policy")
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OK, so OSHA can not cite an individual working for himself. So you are working as a sub-contractor and the prime gets cited for your non-compliance. You get canned immediately and the prime pays the citation. (unless he can beat it in court or on appeal) The prime will not hire you anymore for his projects, and he lets others know that you are prone to being not in compliance. No winner here.
As I mentioned before, no one can meet every standard to every inspectors satisfaction. All regulations are subject to the inspectors interpretation. On most jobs, you will be required to meet regs from several entities. Again, there is no way to satisfy every one as some conflict no matter what. Then it becomes the competing agencies job to decide who has the better jurisdiction. I've been caught in that pig pen before.
Even if you are working for yourself and there is no one else involved in the job, you can still be investigated by OSHA, IF, there is an injury or death on the site that may have been caused by you or your negligence. As most people that have an individual contractor perform work for them act as their own general contractor, I'd bet some money that OSHA could and would cite them.
Construction and mining safety has to become a cultural backstay of your company be it a corporation with many employees or an individual working for himself. That means everyone takes his personal safety onto himself as a personal responsibility, but also everyone else's safety working on the job as well, whether they work for the same company or someone else. It has to be drilled into everyone constantly and employees that just don't get it, have to be let go.
I'm of mixed minds concerning OSHA and MSHA. I'd like to think that all contractors and miners would act responsibility and work hard to ensure the safety of man and equipment. For sure job costs would be lower. But the bad apples spoiled the barrel for all of us unfortunately and what we have today is the result, a mixed bag of regulations of which some are good and some not so good. This is big brother looking over your shoulder all the time and there is no getting away from him.
Sooner or later you will get inspected by someone, it may not be OSHA. Best bet is be as prepared as you can be in all aspects of job safety.
