Most property managers assume a contractor's safety violation is the contractor's problem. OSHA's multi-employer citation policy is more complicated. Where a property manager has general supervisory authority over a worksite, including authority to correct safety violations or require others to correct them, the manager may fall within OSHA's definition of a controlling employer. The policy applies in all industry sectors, not only construction.

This article summarises OSHA's published enforcement directive and describes general practice. It is not legal advice. OSHA enforcement is fact-specific, state plan states may operate differently, and how the policy applies to any particular arrangement depends on the circumstances. Take your contractor arrangements to counsel familiar with occupational safety law.

The Policy Applies Beyond Construction Sites

The opening statement of the directive is the one operators miss.

OSHA's current directive, CPL 02-00-124, states that on multi-employer worksites in all industry sectors, more than one employer may be citable for a hazardous condition that violates an OSHA standard.

A property where employees of multiple employers are working at the same time can constitute a multi-employer worksite. Whether a particular employer is citable depends on its role and the facts of the site.

The directive's own leading example is not a construction site. Example 6 concerns an employer that operates a plant and contracts with a company to do sandblasting, some of it regularly scheduled maintenance. That is closer to property management than to a high-rise build.

Four Roles, and You Can Hold More Than One

The policy runs a two-step analysis. First, which category do you fall into. Second, were your actions sufficient to meet that category's obligations.

1. The creating employer caused the hazardous condition. Citable even if the only employees exposed work for someone else.

2. The exposing employer has its own employees exposed to the hazard.

3. The correcting employer is responsible for correcting a hazard, typically because it was hired to install or maintain safety equipment.

4. The controlling employer has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.

The directive notes that an employer may have multiple roles, and that a creating, correcting or controlling employer will often also be an exposing employer.

One narrow point worth knowing: the directive states that only exposing employers can be cited for General Duty Clause violations.

What Makes You a Controlling Employer

This is the definition to read carefully.

The directive defines a controlling employer as one with general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. And critically: control can be established by contract or, in the absence of explicit contractual provisions, by the exercise of control in practice.

The directive identifies several ways control can be established.

• Explicit contract authority. A specific contractual right to require another employer to adhere to safety requirements and correct violations you discover.

• A combination of other contract rights. Where no explicit safety provision exists, or where the contract says you have no such right, an employer may still be a controlling employer if a combination of contractual rights gives it broad responsibility at the site involving almost all aspects of the job. The directive singles out authority to resolve disputes between subcontractors, set schedules and determine sequencing as particularly significant, because they are likely to affect safety.

• Or control in actual practice. Even with no explicit contract rights on safety, an employer can be a controlling employer if in practice it exercises broad control over contractors at the site.

• Read that third route against how property management actually works. The directive's Example 9 concerns a construction manager whose contract expressly stated it had no right to require safety compliance, and OSHA's analysis found it was a controlling employer anyway, because the combination of rights it did hold necessarily affected safety.

The Bar Is Lower Than for Your Own Employees

Worth stating plainly, because the exposure is real but it is not unlimited.

The directive says the extent of measures a controlling employer must implement to satisfy its duty of reasonable care is less than what is required of an employer with respect to protecting its own employees. A 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 trade expertise, as the employer it hired. You are not expected to know roofing safety as well as your roofer does.

But Three Things Are Assessed

The directive sets out what OSHA considers when evaluating whether a controlling employer exercised reasonable care. Three questions.

Did you conduct periodic inspections of appropriate frequency?

Did you implement an effective system for promptly correcting hazards?

And do you enforce the other employer's compliance with an effective, graduated system of enforcement and follow-up inspections?

That third question is particularly important because the directive's Example 7 turns on it.

The Example That Should Worry You

Example 7 in the directive describes a controlling employer that inspected frequently enough, found fall protection violations during a number of those inspections, pointed them out to the contractor each time, and took no further action.

OSHA's analysis: the employer took adequate steps to meet its obligation to discover violations. But it failed to take reasonable steps to require correction, because it lacked a graduated system of enforcement. A citation was appropriate.

Read that against normal practice. A manager notices a contractor working unsafely, mentions it, notices it again the next week, mentions it again. On the directive's own analysis, that is the fact pattern that produced a citation.

In practice, a graduated system could involve documented escalation — for example, an initial notice, a formal warning, suspension or correction of work where appropriate, and ultimately removal from the approved vendor list. The appropriate steps will depend on the contract, the hazard and the circumstances.

Compare Example 6, where the controlling employer was not cited. It monitored through weekly inspections, telephone discussions and review of the contractor's own inspection reports, and had a system of graduated enforcement it had actually applied to that contractor for previous violations.

The important difference is not simply that one employer found violations and the other did not. It is that Example 6 involved a graduated enforcement system that was actually applied.

Where Control Stops

Two examples mark the boundary, and they are useful if you are trying to structure arrangements deliberately.

1. Example 10. An employer whose contractual authority was limited to reporting on contractors' contract compliance to the owner and making contract payments. It reported safety infractions to the owner but exercised no control over safety itself. OSHA's analysis: not a controlling employer. The directive states that reporting safety and health infractions to another entity does not, by itself, constitute an exercise of control over safety.

2. Example 11. An architect contracted to prepare drawings, inspect work, report on contract compliance and certify completion, with no authority to enforce compliance or approve and reject work. Not a controlling employer. The directive adds that merely pointing out safety violations did not make it one.

The line, then, is authority plus practice. Watching and reporting is not control. Directing, scheduling, approving, and having the power to require correction is.

Some third-party property managers may sit on the control side of that line, depending on the authority they have under their contracts and how they exercise that authority in practice.

How Often You Have to Look

The directive lists three factors that determine inspection frequency.

The scale of the project.

The nature and pace of the work, including how often the number or types of hazards change as work progresses.

And what you know about the contractor both their safety history and their level of expertise.

Two practical consequences follow.

1. More frequent inspections are needed where you know the contractor has a history of non-compliance, and also, per the directive, at the beginning of a relationship where you have never worked with them before and do not know their compliance history.

2. Less frequent inspections may be appropriate where there are strong indications the contractor has effective safety efforts. The directive names a consistently high level of compliance as the most important indicator, alongside a graduated enforcement system of their own, regular jobsite safety meetings and safety training.

Which makes vendor selection relevant to your own position. A contractor with a demonstrated history of effective safety practices may support less frequent inspections where the other factors in the directive also support that approach.

What to Put in Place

Six things, and most can be built into your existing vendor-management process.

1. Know which vendors you have supervisory authority over. If you schedule or sequence work, direct contractors, or have authority to require correction, examine whether those powers collectively give you broad supervisory control over the site.

2. Put safety compliance in the contract, including appropriate rights to require correction and, where permitted by the agreement, suspend work or remove a contractor for non-compliance.

3. Inspect periodically, at a frequency reflecting the scale of the work, its pace, and what you know about that contractor.

4. Write down what you find. Dated, specific, with the contractor named. Where inspection findings sit as service and task records against the property, the evidence exists without a separate process.

5. Build a graduated enforcement system and use it. Notice, written escalation, corrective action, and stronger contractual consequences where appropriate. This is the requirement Example 7 turns on, and it is one worth formalising in your vendor-management process.

6. And record that you applied it. The distinction between Example 6 and Example 7 is documented enforcement, not observation.

Where those records sit against the vendor and the property, in the same system that carries the work orders, this becomes a by-product of normal operations rather than a separate compliance exercise. Our vendor management and accounts payable coverage looks at how the vendor record is structured.

Conclusion

OSHA's multi-employer citation policy applies in all industry sectors. Property managers who schedule contractors, sequence their work and control site access may fall within the controlling employer definition, whether or not their contracts say anything about safety.

Three things worth carrying away.

1. Control can arise from practice, not just contract. The directive is explicit that an employer with no contractual safety authority can still be a controlling employer if it exercises broad control at the site in fact.

2. The duty is reasonable care, and the bar is lower than for your own staff. You are not expected to match your contractor's trade expertise or inspect as frequently as you would your own crew.

3. But finding violations is not enough. The controlling employer in Example 7 inspected adequately, identified the violations and raised them every time, and was still citable, because it had no graduated system of enforcement. Observation without effective enforcement was the fact pattern OSHA found citable in Example 7.

Frequently Asked Questions

1. Does OSHA's multi-employer policy apply outside construction?
Yes. CPL 02-00-124 states that on multi-employer worksites in all industry sectors, more than one employer may be citable for a hazardous condition that violates an OSHA standard. The directive's own examples include a factory and a plant, not only construction projects.

2. What makes a property manager a controlling employer?
The directive defines a controlling employer as one with general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them. Control can be established by contract, by a combination of other contract rights giving broad responsibility at the site, or by the exercise of control in practice where no explicit contractual authority exists. Whether any particular manager meets that definition depends on the facts.

3. Can we be cited if our contract says we have no safety responsibility?
Possibly. The directive addresses this directly: where a contract says the employer does not have a right to control safety, that employer may still be a controlling employer if a combination of its other contractual rights gives it broad responsibility at the site. It notes that authority to resolve disputes, set schedules and determine sequencing is particularly significant because it is likely to affect safety.

4. How much do we have to inspect?
The directive lists three factors: the scale of the project, the nature and pace of the work including how often hazards change, and what the controlling employer knows about the other employer's safety history and expertise. More frequent inspections are normally needed where the contractor has a history of non-compliance, or at the start of a relationship where the history is unknown.

5. Is it enough to point out safety violations to the contractor?
Not on the directive's own analysis of Example 7. There, a controlling employer inspected frequently enough, found fall protection violations repeatedly, pointed them out each time and took no further action. OSHA's analysis found it had met its obligation to discover violations but failed to take reasonable steps to require correction because it lacked a graduated system of enforcement, and a citation was appropriate.