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Return of the Blame Zone
May 18, 2013 3:59:00 AM

Shouting and arguing is no fun at all.  One question that often leads to arguments between little kids is:  “Who’s responsible for this mess?”  This question is typically followed by little fingers accusingly pointing in different directions joined by shouting and arguing.  I call this the “Blame Zone.”  In this instance, discovering who created the mess may be impossible to figure out.  The Blame Zone is annoying with kids but when adults get stuck in a Blame Zone the finger pointing may become down right ugly! 

Often adults point accusingly at one another, shout and argue when OSHA walks through the door of an employer and asks, “Who’s responsible for this mess i.e. hazard?”  Have you ever wondered how OSHA determines who is responsible for a mess created by a workplace hazard when multiple employers are present?  When OSHA observes more than one employer present at a work site, they apply their Multi-Employer Citation Policy to determine who receives the penalty for the identified hazard.  In some cases the host client receives the citation, and, in some cases, all parties involved may be cited.  This policy helps OSHA Compliance Safety & Health Officers (CSHO) assign accountability through a two-step process.  Step one, OSHA determines which employer creates, exposes, corrects and controls hazardous conditions in the workplace.  Step two, OSHA determines if the responsible employer is fulfilling their duty as an “exposing employer,” for example.

Why is this important?  Often a business will contract out portions of their work to another organization.  Businesses decide to do this for a number of reasons: save money, avoid risk or flexibility with expanding/contracting business.  Speaking of staff leasing, employers’ error in thinking that just because they hire temps, they have no OSHA responsibility to provide safe working conditions.  The reality is that you may still be held accountable for workplace hazards including injuries to temporary workers even though you assigned a contractor responsibility for labor.  Do you see a potential Blame Zone here?

This discussion is timely considering OSHA is focusing its attention on protecting temporary workers?  It’s true!  A recent memorandum for Regional Administrators citing “high profile fatal events” where temporary workers were killed on the job was just issued on April 29, 2013 (see the hyper link below).  This memorandum does not beat around the bush.  In fact, I perceive it as a call to OSHA Regional Administrators to direct (CSHOs) to determine if “temporary workers” are given all the training required to be safe on the job.  Another directive specified in the memo is for CSHOs to examine the supervising structure at the job site.  Hint, hint, wink, wink...  Now more than ever, we need to make sure all employees are safe under the roof of the safety program, including the temporary workers.  Additionally host employers and staffing companies need to make sure they stay out of the Blame Zone.  So, how is that accomplished?             

To avoid adult finger pointing, shouting and arguing when OSHA walks through the door, it is important to establish up-front clear work expectations between the contracting and the contractor employer.  Further, both sides need to thoroughly understand their respective roles as OSHA interprets them.  More precisely speaking, the host and the guest should understand and agree to the following questions that OSHA will take into consideration when evaluating a hazard in your workplace:

  • Who creates the hazard? 

  • Who is exposing the employees to the hazard? 

  • Who has the authority/resources to correct the hazard? 

  • Finally, who is supervising the employees? 

 

In some cases, the host and the guest may share responsibility and both are subject to penalty.  Keep in mind, OSHA Multi-employer Doctrine spills into other regulated factors like OSHA recording responsibility.  Incidentally, OSHA always examines the host employer’s OSHA logs so that’s another focus we should pay close attention to.          

Here at MAU, we examine closely the role that we play in our clients’ businesses.  Further, we understand all too well that on top of regulatory accountability, workers compensation is possibly the most weighty risk-management concern that weighs heavy on our minds.  Partnering with clients to establish rock-solid safety programs and controlling workers compensation claims amounts to our most-welcome competitive advantage.  The value of a partnership that shares a commitment to risk management standards and includes processes designed to root out exposure like work site risk assessments and behavior observations are golden to MAU.  Additionally, partnerships that are guided by a coordinated risk management plan with clearly-defined roles more effectively help both host and contractor adequately respond to unexpected events like an accident or even a surprise visit from our friends at OSHA.

A few take-aways to consider…

1. One, sit down with your contractors and learn how they perceive their role in your workplace.  Do they see themselves as an “exposing” or “correcting” employer, for example?  Is their view the same as your view or consistent with your contract?  Come to an agreement so you are both on the same page.

2. Two, do you and your contractor work together as a team to carry out a risk management plan?  If not, develop an inclusive approach to involve them.  If your contractor is less committed to safety than you, involving them in your program will send a strong message about your lofty risk management ideals and practices.  On the flip side, you may also learn something new that will enhance your safety program.

At my house, my kids continue to have the occasional play date where total cooperation and agreement are attained and joined by fun times and laughs, hence, closing the door on the blame zone.  My conclusion from that is if kids can achieve “play date harmony” adults can definitely conceive risk management solidarity.  Just a little camaraderie and upfront understanding of workplace roles are required.  Keep the Blame Zone door closed and together, with your contractors, commit to doing what it takes to keep the workplace safe.                                                    

Live Safety!

https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28613

OSHA Multi-Employer Citation Policy