Employers know that the Michigan Occupational Safety and Health Act ("MiOSHA") imposes a duty on them to provide a safe workplace to their employees. MiOSHA, however, also imposes a duty on employers toward the employees of third parties.
In addition to the duty (and potential fines) imposed by MiOSHA, another important reason exists for employers to be concerned with the health and safety of third parties while on the employer's premises. Although an employer's employees in general are barred from suing an employer for injuries beyond the benefits provided by the Michigan Worker's Disability Compensation Act, there is no such bar for third parties. A third party's damages for injuries sustained at a nonemployer's workplace may be decided by a jury.
Because of this potential for unlimited liability, an employer should make sure third parties are aware of the safety policies and that MiOSHA regulations relating to its third parties have been met. For example, an employer should inform third parties working on their premises of any personal protective equipment that is required. An employer also should not let a third party use any of the employer's equipment unless the individual can show compliance with the applicable regulations. For example, a third party should not be allowed to use an employer's powered industrial trucks unless the third party has met the necessary training requirements under the Powered Industrial Trucks Standard and has the necessary permit.
The employer also needs to comply with regulations enacted under MiOSHA which contain specific provisions addressing third parties. One such regulation is the Hazard Communication Standard (which concerns hazardous chemicals at work). This Standard provides that an employer may have to inform an individual making deliveries at its facility if the individual enters any areas where the individual may be exposed to hazardous chemicals. For example, if an employer allows deliveries to be made at night and the delivery person enters the working area, the delivery person must be informed of the location of the material safety data sheets for any chemicals to which the person is exposed, any precautionary measures that need to be taken, and the labeling system used at the workplace.
If a third party has been hired to perform work for an employer, certain regulations may be applicable. For example, The Control of Hazardous Energy Sources Standard contains a provision regarding third parties. Whenever outside personnel are engaged in activities covered by the Standard, each employer must inform the other of their respective programs. In addition, employers must make sure that their employees understand and comply with the outside employer's energy control program.
The Confined Space Entry Standard also contains provisions concerning third parties depending on if the third party will be performing work in a confined space or if a third party is being used for rescue purposes. If a third party will be working in a confined space, an employer is required to:
Inform the contractor that the workplace contains permit spaces and that permit space entry is allowed only through compliance with a permit space program;
Inform the contractor of the reasons, including the hazards identified and the host employer's experience with the space, that make the space in question a permit space;
Inform the contractor of any precautions or procedures that the host employer has implemented for the protection of employees in or near permit spaces where contractor personnel will be working;
Coordinate entry operations with the contractor, when both host employer personnel and contractor personnel will be working in or near permit spaces; and
Debrief the contractor at the conclusion of the entry operations regarding any hazards confronted or created in permit spaces during entry operations.
If outside personnel are being used only for rescue and emergency services, an employer must evaluate and select a rescuer based on the rescuer's ability to respond in a timely manner and the rescuer's equipment and proficiency to perform needed rescue services. The employer also must inform the rescue service of the hazards it may confront and provide the rescue service with access to all of the permit spaces so that it may develop an appropriate rescue plan and practice rescue operations.
Although the above three regulations which specifically address the issue of third parties are the most common, there are other regulations that address third parties. Some of these regulations include the Hazardous Waste Operations and Emergency Response Standard and Process Safety Management of Highly Hazardous Chemicals Standard.
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Karen J. VanderWerff is an associate in the Grand Rapids office of Warner Norcross & Judd LLP. She concentrates her practice in the area of labor and employment, and occupational safety and health law. She practices extensively in areas concerning drugs in the workplace, OSHA compliance, investigation of employee misconduct, sexual harassment, and discrimination claims. She may be reached directly at 616.752.2183. Because each business situation is different, this information is intended for general information purposes only and is not intended to provide legal advice.
Shoreline Business Monthly