May 6, 2019
Mr. Brandon Betterton
Better Safety & Training, LLC
P.O. Box 43
Center, Alabama 35960

Re: 29 CFR 1926.950(c); Subpart V; CPL 02-00-124; Multi-Employer Citation Policy

Dear Mr. Betterton:

Thank you for your letter to the Occupational Safety and Health Administration (OSHA). In your letter, you inquire about the information transfer requirements in OSHA's Electric Power Transmission and Distribution standards, 29 CFR 1926, Subpart V. More specifically, you ask for guidance about how the information transfer provisions in 29 CFR 1926, Subpart V (see 29 CFR 1926.950(c)) apply to a scenario in which two different electric utilities own and operate installations on the same pole, and one of those utilities (Utility 1) hires a contractor to do work that affects (or is impacted by) the installation owned and operated by the other utility (Utility 2). In your scenario, Utility 1, i.e., the utility hiring the contractor, operates equipment on the pole, controls the pole, and allows Utility 2 to use the pole for its own installation. 

Background: In general, work covered by Subpart V, 29 CFR 1926.950(c)(1) requires host employers (generally electric utilities) to exchange specified information with contract employers so that each employer has the information needed to comply with the electric power transmission and distribution standards and to protect affected employees. For example, a host employer must provide contract employers with information about the design and operation of the host employer's installation that the contract employer needs to make required assessments (see 29 CFR 1926.950(c)(1)(iii)). In addition, host employers and contract employers must coordinate their work rules and procedures so that their employees are protected as required by Subpart V (see 29 CFR 1926.950(c)(3)).

For purposes of Subpart V, OSHA defines "host employer" as an "employer that operates, or that controls the operating procedures for, an electric power generation, transmission, or distribution installation on which a contract employer is performing work covered by Subpart V." 29 CFR 1926.968, Definitions. A note to this definition explains:

The Occupational Safety and Health Administration will treat the electric utility or the owner of the installation as the host employer if it operates or controls operating procedures for the installation. If the electric utility or installation owner neither operates nor controls operating procedures for the installation, [OSHA] will treat the employer that the utility or owner has contracted with to operate or control the operating procedures for the installation as the host employer. In no case will there be more than one host employer.

Your specific questions have been paraphrased as follows:

Q #1: In the scenario described, which utility is considered the "host employer"?

Response: In the scenario described in your letter, both utilities are host employers. Utility 1 is the host employer with respect to the installation it owns and operates, and Utility 2, which owns and operates the other installation on the pole, is the host employer with respect to that second installation. The note to the definition of "host employer" explains that there can be just one host employer for the installation (i.e., for each installation). It does not mean that there cannot be multiple host employers on the same project or work site (e.g., utility pole), where multiple installations are involved.

Q #2: In the scenario described, how can Utility 2, an entity that did not hire the contractor, and that may not even be aware of the work to be done, provide information to, and coordinate with, the contractor performing the work?

Response: In the scenario you describe, OSHA expects that Utility 2 will learn about the planned work through its existing relationship with Utility 1 and/or from the contractor as part of the contractor's obligation under 29 CFR 1926.950(d) to determine the existing characteristics and conditions of electric lines and equipment that are related to the safety of the work to be performed. Either way, once Utility 2 becomes aware of the work, it must comply with the information transfer provisions at 29 CFR 1926.950.

As for how Utility 2 can provide required information to the contractor, an entity with which it has no direct contractual relationship, OSHA has explained:

OSHA realizes that the final rule will require some employers to exchange information with entities with which they have no direct contractual relationship.  These employers can either exchange information directly with each other or can arrange to handle their information exchange through contacts with entities that do have contractual relationships with the other employer. . . . Ultimately, however, it is the host employer's responsibility to ensure that whatever procedures it uses are adequate to get the required information to all "contract employers" working on the installation. Paragraph (c)(3) . . . requires host employers and contract employers to coordinate their work rules and procedures; part of this coordination involves establishing appropriate procedures for exchanging information in accordance with the host-contractor provisions. (79 FR 20316, 20356 (April 11, 2014))

Moreover, OSHA does not specify how required information is to be transferred. It is sufficient for the host employer to provide the necessary information, through any appropriate mechanism, to an authorized agent of the contractor. The mechanism used by the host employer to transfer required information to the contract employer could include providing information via a telephone call, email, or text message; providing information during an orientation session or meeting; or developing a Website or other computer program that the contract employer is directed to and can access to obtain the information. OSHA will deem a mechanism for transmitting information appropriate as long as it effectively communicates the information to the contract employer in a manner that enables the contract employer to pass the information to its employees and otherwise use the information to comply with Subpart V.

Q #3: In the scenario described, is there a point at which host employer responsibilities transfer from one utility to the other? 

Response: No. As previously explained, both utilities in your scenario are host employers. Each has host employer responsibilities with respect to the installation it owns and operates.

Thank you for your interest in occupational safety and health. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements, but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Construction at (202) 693-2020.

Sincerely,

Scott C. Ketcham, Acting Director
Directorate of Construction