According to the Cal/OSHA Multi-Employer Work Site regulation (8 CCR §336.10) Cal/OSHA can issue citations to employers where there is evidence that an employee has been exposed to a hazard while violating Cal/OSHA standards. This applies to any of the following employer classifications:
- Exposing employer – employer whose employees were exposed to the condition regardless of the whether the employer created the condition.
- Creating employer – employer who actually created the hazard.
- Controlling employer – employer responsible, by contract or through actual practice, for safety and health conditions at the worksite, and who has authority to correct the violation.
- Correcting employer – employer who has specific responsibility to correct the hazard
However, prior to issuing a citation to the exposing employer, Cal/OSHA “shall” (according to Section 336.11) first determine whether available information indicates that the employer meets each of the five defenses listed below. If Cal/OSHA determines that “all five defenses have been met”, then a citation will not be issued. The five defenses for the exposing employer are:
- The employer did not create the hazard.
- The employer did not have the responsibility or the authority to have the hazard corrected.
- The employer did not have the ability to correct or remove the hazard.
- The employer can demonstrate that the creating, controlling and/or correcting employers, as appropriate were specifically notified or were aware of the hazards to which employees were exposed.
- The employer took appropriate feasible steps to protect employees from the hazard, instructed them to recognize the hazard and where necessary, informed them how to avoid the dangers associated with it.
In a case heard by the Appeals Board, a mechanical contractor was cited following an accident when a mechanical contractor employee (plumber) fell more than 15 feet and was seriously injured. The accident occurred after a decking subcontractor reportedly removed cable railings around a second-story deck to install a metal firewall. The decking contractor workers left the area without completely reinstalling the cable railings but ran the loose end of the top cable through the supporting eyelet and fastened it with a single loop. The plumber went to the edge to speak to a co-worker on the ground, grabbed the cable, leaned against it and fell. The mechanical contractor was cited for a serious citation under Construction Safety Order §1621(a) which requires railings be provided along all unprotected and open sides and ends of built-up scaffold, ramps, platforms, wall openings, etc. 7 1/2 feet or more above ground.
The mechanical contractor appealed the citation, and an administrative law judge affirmed the citation, but reduced it from a serious to a general violation. However, the mechanical contractor filed for reconsideration with the Appeals Board.
The mechanical contractor contended that it was unaware of the decking contractor’s removal of the guardrail and with reasonable diligence could not have known and therefore was not liable for the violation which, “logically obligated to satisfy” all five of the defense elements. The mechanical contractor further asserted that Cal/OSHA admitted (in the initial appeal) that it did not make a determination of the 5-part defense prior to issuing the citation.
The Appeals Board ending up rejecting the mechanical contractor’s appeal. The board indicated that “knowledge and reasonable diligence” are used “in determining the classification of a violation…and are not elements necessary in establishing the existence of a safety order violation”. That is, the mechanical contractor’s lack of knowledge of the existence of the hazard does not mitigate the employee exposure to the hazard and cannot be used as a defense in establishing whether a citation should have been issued. The board also indicated therefore, that by its very argument the mechanical contractor failed to establish all five of the defenses.
The board also ruled that the §336.11 requirement is a “procedural requirement” not mandatory adding “there is no stated consequence for Cal/OSHA’s failure to make the “pre-citation determination”. Under §336.11, the Board wrote, “The Division’s failure to follow the pre-citation procedure, does not bind the Board in its role in resolving an appeal from the issued citation alleging a violation of a safety order”. In fact, the Board added if it were bound by the pre-citation evaluation, it would conflict with the employer’s right to present affirmative action defense evidence. The Board added “(a)n agency’s failure to comply with a procedural requirement will not normally invalidate subsequent agency action (i.e., Appeals Board) …if the requirement is directory”. Directory refers to a minor statute but not necessary – in this case, Cal/OSHA did not absolutely follow the pre-citation evaluation.
The case clearly points out the following:
- Lack of knowledge of a hazard or violation, though used in determining severity of the citation, cannot be used as a defense for establishing whether a citation should have been issued.
- Cal/OSHA should but does not have to determine the five-part defense prior to issuing a citation under the Multi-Employer Worksite regulation.
- Though not a specific issue in this citation, when a contractor is aware of a hazard, to which their employees may be exposed they must take steps to ensure that the creating, controlling and/or correcting employers were notified and/or made aware of the hazards to which employees were exposed. In addition, that the exposing employer took steps to inform, train and protect the workers from the hazard.
Note: This information has been provided by Tim Bormann, CIH, FAIHA – The Cohen Group