Multi-Employer Work Sites and Hazard Communication Michigan Industrial Hygiene Society Professional Development Conference January 26, 2012

Who Is The Employer? An individual or organization, including the state or a political subdivision, which employs one or more persons. [MIOSH Act, Sec. 5 (2)].

Who Is The Employee? A person permitted to work by an employer. [MIOSH Act, Sec. 5 (1)].

Duties Of The Employer Furnish to each employee, employment and a place of employment which is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee. (MIOSHA General Duty) [MIOSH Act, Sec. 11 (1)]. OSHA – Furnish to “his” employees…

Multi-Employer, Background The courts have determined that OTHER employers may be responsible for safety and health hazards

Multi-Employer Worksites – Who is Responsible? 1.A two step process 2.Outlined in the MIOSHA Instruction; Multi-Employer Work Sites, MIOSHA-COM- 04-1R3, September 23, Substantially similar to Federal OSHA. Reference: 6

A Two Step Process Step – 1, Type of Employer 1.Creating – Employer that causes the hazardous condition. 2.Exposing – Employer whose employees are exposed.

Step 1, Continued 3.Correcting – Employer who is responsible for correcting the hazard. 4.Controlling – Employer who has general supervisory authority over the work-site.

Step 2, Employer Responsibility All employers have first responsibility for their own employees, however; An employer may also have responsibility for hazards other employees are exposed to.

Employer Responsibility Actions required by the employer vary depending on the type of employer. Employers have MORE responsibility with respect to their own employees. Example: A controlling employer typically has less responsibility for other employees, than an exposing employer has for their own employees. Question: Are the employers actions sufficient to show “Reasonable Care” with respect to their responsibilities?

Controlling Employer Control established by contract. In the absence of specific contractual provisions, exercise of control in practice.

Controlling Employer – Reasonable Care Less for a controlling employer than for an employer with respect to their own employees. Always consider the employer/employee relationship.

Reasonable Care - Factors Scale of the project. Pace of the work. Actions taken. Knowledge of the H & S record of the sub- contractor. Knowledge of applicable standards or of trade expertise. NOTE: The Ostrich Defense is not acceptable.

Evaluating Reasonable Care Periodic inspections of appropriate frequency. System for correcting hazards. Enforces the other employer’s compliance with H & S requirements. Controlling employer considers H & S in the sub-contract bid process.

Multiple Roles A creating, correcting or controlling employer will often also be an exposing employer. Exposing, creating and controlling employers can also be correcting employers if authorized to correct the hazard.

Evaluating Responsibility A creating employer can be cited for exposing other employees to a hazard, if they have not taken “Reasonable Care” to reduce or eliminate the hazard.

Evaluating Responsibility Employees may be exposed to a hazard created by another employer. The employer must exhibit “Reasonable Care” to prevent their own employees from being exposed to this hazard. The creating employer must also exhibit “Reasonable Care” to abate the hazard.

Evaluating Responsibility A correcting employer can be cited for exposing other employees to a hazard, if they have not exhibited “Reasonable Care” to reduce or eliminate the hazard.

Evaluating Responsibility To cite a controlling employer with regard to “other” employees, we must be able to show that the employer has NOT exhibited “Reasonable Care” to identify and correct the hazard.

Example 1 – Creating Employer A host employer hires a contractor to work in their plant. Contractor employees are over-exposed to solvents while working in a the host’s paint storage facility. The host knows of the exposure problem in the storage room but does not communicate the hazard to the contractor. Question: Can the host employer be cited for the hazard to the contractor? 20

Example 1 – Creating Employer Answer: Yes. In this case the host is the creating employer and may be cited for not exhibiting reasonable care. The contractor in this case may also be cited as the exposing employer. 21

Example 2 – Exposing Employer A contractor working in a plant is exposed to a fall hazard. The contractor asks the host employer to install guard rails and the host refuses. The contractor continues the work without the use of feasible fall arrest or fall restraint systems. Question 1: Is the contractor responsible for the hazard? Question 2: Would the host also be responsible in this case? 22

Example 2 – Exposing Employer Answer 1 : Yes. Even though the contractor asked the host for guard rails, they are citable as the exposing employer for not taking alternate steps to protect employees. Question 2: Would the host also be responsible in this case? Answer 2: No. In this case the contractor is aware of the hazard and there are alternative means to protect employees. The host would not be obligated to build the guard rail unless required by contract. 23

Example 3 – Correcting Employer A carpentry contractor has responsibility to maintain guard rails on a multi-story project. They inspect twice a day and have a reporting process when guard rails are damaged. One day they have a large shipment of materials to unload and they do not conduct the afternoon site inspection. Other contractor employees are exposed to the hazard. Question: Is the carpentry contractor responsible even though their employees are not exposed to the hazard? 24

Example 3 – Correcting Employer Answer: Yes. As the correcting employer, the carpentry contractor may be cited because they did not conduct their normal reasonable care inspections on that date. 25

Example 4 – Controlling Employer A general contractor (GC) is the controlling employer at a worksite and is experienced in building condo and residential housing projects. A contractor on the site continually uses the bucket of a front end loader as an aerial lift platform. Other contractors at the site use appropriate aerial lift platforms. It is established that the GC has witnessed, and is aware of the hazard. Question: Is the GC responsible even though their employees are not exposed to the hazard? 26

Example 4 – Controlling Employer Answer: Yes. The GC may be cited as a controlling employer in addition to the exposing employer, for not exhibiting reasonable care to address the hazard. 27

Hazard Communication/ Right to Know Who is Responsible?

HAZARD COMMUNICATION MIOSHA Parts 42, 92 & 430, Sections 14a – 14m of Act 154 Protects employees from hazardous chemicals. Informs employees about chemical hazards. Provides precautions and protective measures when using, handling and contacting chemicals.

30 Written HazCom Program Inventory Of Hazardous Chemicals Material Safety Data Sheets (MSDS) Training Labeling Record Keeping Hazard Communication/ Right To Know Requirements Adopted (e)

MATERIAL SAFETY DATA SHEETS Identity of the chemical or product Hazardous ingredients Physical/chemical characteristics Fire and explosion hazards Reactivity data Health hazards Precautions for safe handling and use Control measures

MSDS Availability Where there is exposure, the MSDS must be readily accessible to the employees during the work shift; (g) (8). The employer can maintain hard copy or electronic copies. The employer can establish work rules for access in non-emergency situations. MSDSs must be immediately available in an emergency; (g) (9).

MSDSs and Multi Employer Worksites A contractor exposes host employer employees, or vice versa: – (e) (2) – The employer must address methods to inform other employers at a multi-employer site of hazards their employees may be exposed to. – Includes pipe labeling systems 33

MSDSs and Multi Employer Worksites The host employer (or contactor) must inform and train their employees on the hazards: – (h) (1) – The employer must provide employees information and training whenever a new hazard is introduced into the workplace. 34

MSDSs and Multi Employer Worksites (g) (9) – Where work is carried out at more than one location, MSDSs may be kept at a primary workplace provided; – Employee accessibility is maintained AND – The MSDSs are immediately available in an emergency – MSDSs can be maintained in the vehicle 35

MSDS Records Does the MSDS for a product no longer used need to be maintained? – YES – Part 470. Medical Records and Trade Secrets, requires exposure records be kept for 30 years. An MSDS is specifically identified as an exposure record. 36

Global Harmonization Standardize information on chemicals internationally United Nations' (UN) Globally Harmonized System of Classification and Labeling of Chemicals (GHS). New OSHA standard expected – Regulatory Agenda; 09/00/

Questions/Comments? Michigan Industrial Hygiene Society Professional Development Conference January 26, 2012