Fall Hazard Liability Expands for Host Employers

By Mark A. Lies II and Timothy R. Gerlach

Editor’s Note – Mark A. Lies II is a partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health and related personal injury and employment law litigation.

Timothy R. Gerlach is a second year law student at the University of Cincinnati College of Law who intends to pursue a career in civil litigation after graduation. Individual circumstances may limit or modify the information in this article.

It is a fact of everyday business life that many employers will, from time to time, be required to engage outside contractors to perform a variety of services at the employer’s facility that the employer cannot perform with its own employees. Recently, the Occupational Safety and Health Administration (OSHA) has begun to expand the employer’s liability for OSHA compliance for employees of the outside contractor under its multi-employer workplace liability.

A recent decision in the case of Secretary of Labor v. Ryder Transportation Services is of concern because it is one that most employers who own a fixed facility will face at some time if they engage an outside contractor to perform services, in this case on the roof of the facility, either on the roof itself or on equipment located there. This liability involves the hazard of the outside contractor employees being exposed to injury because of fall hazards, either from the leading edge of the roof or from skylights or other openings in the roof.

The employer in this case, Ryder Transportation Services, owned a facility that it used to rebuild automotive equipment for its vehicles. Since 2006, no Ryder employee had been on the roof and the roof was classified as a restricted area and its employees were forbidden to access the roof. The roof had a number of skylights that were unguarded.

In 2009, Ryder requested an outside electrical contractor, M.C. Dean, which it had used previously to work at the facility, to perform work installing exhaust fans near the ceiling inside of the building. After the fans were installed and failed to function, the M.C. Dean employees decided to access the roof to determine why the fans, which protruded through the roof, did not function. The employees utilized their own aerial lift to access the roof and an M.C. Dean journeyman electrician got out of the lift and walked to one of the exhaust fans. As the employee walked across the roof back to the aerial lift using a different route, he fell through a skylight to his death.

Multi-employer Workplace Liability
OSHA cited Ryder for the exposure of the M.C. Dean employee to the unguarded skylight. Ryder could not be cited for the exposure of any of its own employees who had not accessed the roof. Using its multi-employer workplace doctrine, OSHA cited Ryder as the “controlling employer” for failing to protect the M.C. Dean employee from the hazard. (M.C. Dean was also cited by OSHA for failure to guard the skylight through which its employee fell and the citation was affirmed by the administrative law judge.)

The administrative law judge found that the multi-employer workplace doctrine did apply and that Ryder was the controlling employer. However, he vacated the citation on a finding that Ryder had “neither actual nor constructive knowledge that an employee would be exposed to unguarded skylights that were remote from his work area.” OSHA has taken an appeal of the decision, claiming that Ryder had such knowledge.

This decision represents a further confirmation of the extent of liability for the host or “controlling” employer under the doctrine. Now, any employer who engages an outside contractor to perform work on its roof is potentially exposed to liability if it does not confirm that the outside contractor employees are protected from any fall hazards on the roof. This will require the host employer to ensure that skylights are guarded, as well as the leading edge of the roof, or that the employees are utilizing some other form of fall protection while accessing the roof.

This is more troublesome because many host employers have no knowledge of the applicable regulations and are relying upon the outside contractor to have such awareness, as well as appropriate fall protection for their employees. It is also a certainty that this liability will eventually extend to outside contractors coming to the employer’s worksite to perform all manner of services, including electrical, plumbing, excavation, structural repairs, etc.

In order to avoid such potential liability, the host employer should consider the following actions.

• Conduct a job hazard analysis of each facility, in this case the roof, to determine whether there are fall hazards, such as unguarded skylights, roof exhaust vents, or other roof equipment that could pose a fall hazard.

• Once the job hazard analysis has been completed, consider what type of fall protection is required and feasible for employees and outside contractors who may be accessing the roof or equipment located on the roof.

• After the feasible means of fall protection are identified, develop a written procedure that incorporates these measures and also sets out the process for “authorized” employees to access the roof and under what circumstances such access is permissible and what type of fall protection will be required.

• Conduct documented training for the “authorized” employees who access the roof, monitor their compliance, and discipline the employees who are non-compliant.

• When the employer is utilizing an outside contractor to perform work on the roof or equipment on the roof, conduct and document a meeting with the outside contractor and provide the outside contractor with information on the presence and location of any fall hazards on the roof or equipment.

• Confirm and document that the outside contractor has been informed of these hazards and that the outside contractor has the means and methods to provide the necessary fall protection for its employees and that it will supervise, monitor, and enforce compliance with the controlling employer’s fall protection program.

If the host or controlling employer undertakes these actions, it will minimize its potential liability for fall hazards on the roof for its own employees and those of the outside contractor.

December 2011 RENDER | back