Example:

Employer Host operates a factory. Host contracts with company K to service machinery. Host fails to cover drums of a chemical despite Ks repeated request that it do so. This results in Ks employees exposure to airborne levels of the chemical that exceeds the Permissible Exposure Limit.

Analysis:

Step One: Host is the Creating Employer because it caused employees of K to be exposed to the air contaminant above the Permissible Exposure Limit.

Step Two: Host failed to implement measures to prevent the accumulation of the air contaminant. It could have met its OSHA obligation by implementing the simple engineering control of covering the drums. Having failed to implement a feasible engineering control to meet the Permissible Exposure Limit, Host is citeable for the hazard.

B. The Exposing Employer:

An Exposing Employer is one whose own employees are exposed to the hazard. If the Exposing Employer also created the violation, it likewise may be cited for the violation as a Creating Employer. If the violation was created by another employer, the Exposing Employer is citeable if it: (1) knew of the hazardous condition or failed to exercise reasonable diligence to discover the condition; and (2) failed to take steps consistent with its authority to protect its employees.

If the Exposing Employer has authority to correct the hazard, it must do so. If the Exposing Employer lacks the authority to correct the hazard, it is citeable if it fails to do each of the following: (1) ask the creating and/or controlling employer to correct the hazard; (2) inform its employees of the hazard, and; (3) take reasonable alternative protective measures.

In extreme circumstances (e.g., immanent danger situations), the Exposing Employer is citeable for failing to remove its employees from the job site to avoid the hazard.

C. Correcting Employer:

The Correcting Employer is one who is engaged in a common undertaking, on the same work site as the Exposing Employer, and is responsible for correcting a hazard. This usually occurs where an employer is given the responsibility of installing and/or maintaining particular safety/health equipment or devices.

D. The Controlling Employer:

The Controlling Employer has general supervisory authority over the work site, including the power to correct safety and health violations itself, as well as require others to correct them. Control can be established by contract or, in the absence of explicit contractual provisions, by exercise of control in practice. A Controlling Employer must exercise reasonable care to prevent and detect violations on a job site. The extent of the measures that a Controlling Employer must implement to satisfy this duty of reasonable care is less than what is required of an employer with respect to protecting its own employees. This means that the Controlling Employer is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employer it has hired.

II. OSHA Inspections

The OSH Act authorizes OSHA to conduct workplace inspections and investigations to determine whether employers are complying with standards issued by OSHA for safe and healthful workplaces.

1. Inspection Priority

There are one hundred eleven million (111,000,000) workplaces covered by the OSH Act. See OSHA Publication 2098, 2002 (Revised). Since OSHA cannot inspect every workplace covered by the OSH Act, it has established a system of inspection priorities.

A. Immanent Danger

Immanent danger situations receive top priority. An immanent danger is any condition where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures.

B. Catastrophes and Fatal Accidents

Accidents resulting in a death or hospitalization of three or more employees receive second priority. The employer must report such catastrophes to OSHA within eight hours of the occurrence.

C. Complaints and Referrals

Formal employee complaints of unsafe or unhealthful working conditions and referrals from any source about a workplace hazard receive third priority.

D. Programs Inspections

Inspections aimed at specific high-hazard industries, including the construction industry, workplaces, and occupations receive fourth priority.

E. Follow Up Inspections

Follow-up inspections to determine if the employer has corrected previously cited violations receive fifth priority.

2. Preparing for an OSHA Inspection

Inspections are generally conducted without advance notice. When notice is given, it is generally given less than twenty-four hours before the inspection. Preparation for an OSHA inspection should therefore occur well in advance of OSHAs arrival at the job site. Counseling clients, the following suggestions may be useful:

A. Maintain Records