Like most employers, you probably use outside consultants like engineers, hygienists and ergonomics specialists from time to time. Or, maybe you're a consultant yourself. What kind of OSHA liability do consultants have? A recent case from the State of Washington is a good illustration of how OSHA and the courts answer this question.

What Happened

The Port of Seattle hired a contractor to provide asbestos consulting services and technical assistance under three separate construction contracts. The contract said the contractor's job was to "ensure a quality project within regulatory compliance, time and cost deadlines." It's duties included facility surveys, bulk sampling, air sampling, project inspection, coordination and management, cost estimates, emergency response, compliance guidance and analysis.

When work on the projects fell behind schedule, shifts were doubled and tripled and, allegedly, safety shortcuts were taken. A construction worker complained to the Washington Department of Labor and Industries (L&I) about unsafe asbestos work practices and conditions at the sites. L&I inspected the sites and cited the contractor for seven violations of the Washington Industrial Safety and Health Act (WISHA), the state version of OSHA, including:

• Letting and even telling workers to do asbestos work without safeguards;
• Directing abatement workers to leave asbestos materials in wall cavities;
• Not fully inspecting work areas;
• Failing to ensure that all areas were adequately encapsulated; and
• Not implementing the necessary quality assurance programs.

The contractor appealed the citations. Even if the allegations were true, the contractor argued that it couldn't be held liable for WISHA violations since it was a consultant, not an employer.

What the Law Says

OSHA requires "employers" to keep the workplace free of recognized hazards. Technically, an "employer" means the person or organization that hires the workers and pays their wages. But when courts apply the law in actual cases, they often use a theory called the "multi-employer worksite policy." Under this policy, an employer who controls or creates a workplace hazard may be liable under OSHA even if the workers endangered by the hazard are on somebody else's payroll.

What the Court Decided

The Washington court ruled that L&I could fine the contractor $63,000 for violating WISHA. It used the multi-employer worksite policy to rule that the contractor was an "employer" under WISHA. Although the contractor didn't hire, fire or pay the construction workers, the firm had "a great deal of control over the work," the court said. It cited the contractor's:

• Authority to enforce safety rules and stop the work if WISHA rules weren't followed; and
• Direction over the method of the work.

the contractor claimed that its contract with the Port of Seattle didn't expressly give it these powers. But the court brushed that objection aside. What matters, the court said, isn't what the contract said but the degree of control the contractor actually exercised in practice [Martinez Melgoza & Assocs., Inc. v. Dept. of Labor & Industries , 2005 Wash. App. LEXIS 26, Jan. 10, 2005].

What It Means to You

Although $63,000 isn't a trivial sum, the real significance of this case isn't the amount of the fine but the fact that a consultant was fined at all. This isn't just a blip or local Washington phenomenon. On the contrary, the multi-employer policy is followed by most federal courts, including the Ninth Circuit where Washington is located. OSHRC, the Occupational Safety and Health Review Commission, also applies the policy in deciding OSHA appeals. And, of course, as shown by the Martinez case, state courts invoke it when interpreting their own occupational health and safety laws.

The case is also a reminder for consultants, contractors and others who exercise control over how work is performed and safety is administered at a site, that you may incur liability under OSHA or the state law equivalent, even if the people working there aren't your employees.

The Canadian Perspective

This article is relevant to Canadians.

Although the term "multi-employer doctrine" is uniquely American, the same principles apply in Canada. Control over how work is performed, rather than the nature of the relationship between the consultant and the worker, determines liability for safety violations. One province, Nova Scotia, specifically makes "safety professionals" liable under its OHS laws. The other provinces tend to read this obligation into their OHS laws.

The issue of control often comes up when one company hires another to perform work at the former's site and/or uses the former's employees. The leading case comes from Ontario. It started when a contractor hired a subcontractor to clean windows at a high-rise condo. The boatswain's chair wasn't properly secured and the subcontractor fell to his death. The Ontario Court of Appeals (the province's highest court) found that the contractor was liable for the accident even though the contractor wasn't the subcontractor's "employer" and the subcontractor wasn't its "employee" in a traditional employment law sense [R. v. Wyssen (1992), 10 O.R. (3d) 193 (Ont. C.A.)].

Your Safety Horoscope

Introduction

What's the secret to safety?

--Is it the safety culture of the workplace? Nah.

--Training? Forget it.

--What about the right equipment? You kiddin' me?

It's all about the stars.

So, as a public service, SafetyXChange will be presenting a monthly safety horoscope. This month's sign: Gemini.

Gemini, May 21 to June 20

You've got an insatiable curiosity. And you've got a lot to say. Unfortunately, in your eagerness to share what you know, you sometimes put your foot in your mouth. But that's what makes you so interesting. Your quick wit, intuition, and curiosity make you an interesting participant at any safety meeting. You enjoy a good chat and an exchange of ideas. Conversely, you can also keep a good secret. Might we suggest you sign-on to the SafetyXChange forum and share some of those secrets? We can't wait to hear what you have to say.

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