By Howard Mavity, partner, Fisher & Phillips, LLP

Construction employers have made progress in managing individual employees and crews at multiemployer sites. Similarly, although mistakes still occur, we’ve got over 40 years experience complying with OSHA on the shop floor.

Unfortunately, neither setting represents the increasingly common work situation where small groups of employees or individual technicians work on customer sites far from their actual “supervision.” Consider these challenges in managing these remote employees and crews:

• Employees operate from their homes or report to supervision at a different location from their reporting site.
• Employees rarely gather together for any type of meeting, let alone regular safety briefings.
• Employees increasingly work alone and, even when working alongside other companies’ workers, they remain responsible for means and methods, safety, and often even quality assurance. No “supervisors” or safety professionals are present from their employer.
• Often no manager or auditor checks on or approves the work.
• “General industry” has experienced an explosive growth in technology-driven jobs, from linemen to an infinite variety of technicians.  Similarly, many healthcare employees work alone or in small crews at patient homes or onsite at hospitals or clinics. “Drivers” may now be “representatives” and perform tasks at the customer’s location.  New technology requires ever more sophisticated hardware and software and the technicians to maintain it. The variety of jobs is nearly endless.
• OSHA standards, many of which are more than 40 years old, did not anticipate the newer work settings and do not often consider that no supervisor may be present and the employer has no control of the site.
• Many of these employees may not have the tradition of safety developed over time by construction craft workers. They may not view their worksite as hazardous.

Legal Requirements

The Occupational Safety and Health (OSH) Act requires you to protect your employees regardless of where they work.  OSHA Construction Standards at 29 CFR 1926.20 and 1926.21 require the employer to determine the hazards of a job and train and equip employees accordingly. However, the standards are silent about how an employer should meet this challenge when its employees work at a dozen different sites per week, none controlled by the employer.

OSHA General Industry Standards do not give an employer a pass because it does not control the place where its employees work. The employer must ensure that those employees are trained and equipped for any safety hazards they may encounter. Hazards requiring personal protective equipment (PPE) require a “Job Safety Analysis” under 29 CFR 1910.132(b). Employers may also need to determine if the site maintains a hearing conservation program or requires respiratory protection. Completing effective JSAs for an employee operating at customer sites and/or by him- or herself requires critical employer and employee effort.

We have represented employers who lost employees in catastrophes on a customer’s site or received OSHA citations and were involved in ruinous civil actions, all because they were, in essence, at the wrong place at the wrong time. The increase in employees working alone or at customers’ homes or businesses has vastly increased an employer’s duty to protect workers from workplace violence. While shootings gain media attention, there are a staggering number of lesser incidents varying from harassment to sexual or physical assault.

Multiemployer Legal Obligations

Any time more than one employer has employees at a worksite, OSHA can cite the exposed employee’s employer (exposing employer), the employer who controls the site, the employer who created the hazard, the employer who had a duty to correct hazards…or all of the above.

Given this complex policy, it is in the best interests of all employers at a worksite to coordinate their safety efforts, clearly delineating who is responsible for which employees, the safety procedures all employees (regardless of employer) must follow on a site, and other key issues.

Role of Supervisors

Although remote workers must be trained to recognize and respond to hazards on their own, supervisors still have a crucial role to play. To prove a violation, OSHA must prove (1) an applicable standard, (2) hazard, (3) employee exposure, and (4) that the employer knew of the violation or hazard or should have known of the violation with the exercise of due diligence.

That due diligence starts with supervisors who do more than pay lip service to the “Safety is Number One” mantra. An employer’s knowledge is “imputed” to the company from supervisors, as loosely defined by the OSH Act. Any supervisor who fails to address a known hazard, such as security concerns expressed by a home health professional, has just met the “knowledge” element of OSHA’s test for employer responsibility. Even worse, the supervisor’s knowledge and “plain indifference” to a hazard may serve as the basis to classify a resulting violation as “willful.”

Employee Responsibility

Train all employees to recognize hazards, especially when they work at multiple locations on a variety of tasks. Train your employees to assess a site before beginning work, and document this training. One possible strategy is to provide tablets that off-site workers can use to compile a simple site analysis. Draft your JSAs to recognize the hazards of customer sites. If regular safety meetings are impractical, use teleconferences or other methods to update employees and remind them of safety obligations. Create a safety culture.

What About When Employers Break The Rules?

Here’s where that “due diligence” applies. If you have an effective program with “documented” applicable rules and procedures, training, basic safety “oversight,” and proof of “meaningful” safety-related discipline, and OSHA can’t prove supervisor knowledge, OSHA will have trouble fulfilling their burden to show that a violation was foreseeable. You also may be able to successfully argue the affirmative defense of “unpreventable employee misconduct” or an isolated instance.

If it’s a supervisor who breaks the rules, OSHA will argue that his or her knowledge of the hazard is “imputed to the employer,” even though he or she broke company rules. Make sure that you have an effective and well documented safety program, so that you can make a convincing case to OSHA that you were duly diligent and the bad behavior resulting in a violation was not foreseeable.

As the new year begins, take the opportunity to make a business plan to revise your safety programs in order to address the unique challenges posed by these new, int increasingly common, workplaces.

A partner in the Atlanta office, Howard Mavity co-chairs the Fisher & Phillips Workplace Safety and Catastrophe Management Practice Group. He draws on his past business experience in transportation, logistics, construction, and industrial supply to work with clients and focuses on eliminating employee problems through commonsense management. He oversees audits of corporate labor, human resources, and safety compliance, responds to virtually every type of day-to-day workplace inquiry, and has handled cases before the Equal Employment Opportunity Commission (EEOC), Office of Federal Contract Compliance Programs (OFCCP), National Labor Relations Board (NLRB), and numerous other state and federal agencies.