FEATURE ARTICLE
OSHA's MULTIEMPLOYER
Worksite Policy Declared Invalid
The Occupational Safety and Health Review Commission (OSHRC)
recently issued a decision that prevents the
Occupational Safety and Health Administration (OSHA)
from citing general contractors for the safety
violations of subcontractors at construction sites. In
a major victory for general contractors, two of the
three OSHRC Commissioners held that OSHA’s Multiemployer
Worksite Policy is invalid as applied to general
contractors that have neither created nor exposed
employees to a safety hazard.
In Secretary of Labor v. Summit Contractors, Inc.,
OSHRC Docket No. 03-1622 (April 27, 2007),
the general contractor, Summit Contractors, Inc.,
was cited for scaffolding violations committed by one of
its subcontractors. Although no Summit employees were
exposed to a fall hazard, the company was cited under
OSHA’s Multiemployer Worksite Policy because it was
deemed to be the “controlling employer” on the
worksite.
Under OSHA’s Multiemployer Worksite Policy, employers
can be cited in four situations:
-
If they
expose their employees to a hazard (“exposing
employer”);
-
If they
create a hazard (“creating employer”);
-
If they
have the ability or duty to correct a hazard
(“correcting employer”); or
-
If they
control the work site (“controlling employer”)
With respect to general contractors, the rationale
behind the policy is that by virtue of their contractual
authority and supervisory responsibility on the jobsite,
general contractors have the ability to require and
ensure subcontractor compliance with OSHA safety
standards.
Summit Contractors, Inc., appealed the citation, arguing
that the Multiemployer Policy was inconsistent with a
specific safety regulation (29 C.F.R. § 1910.12(a)),
which provides that “[e]ach employer shall protect the
employment and places of employment of each of his
employees engaged in construction work by complying
with the appropriate standards prescribed in this
paragraph.” (Emphasis added.) The OSHRC agreed with
Summit Contractors and invalidated OSHA’s application of
the Multiemployer Worksite Policy to general
contractors. In so doing, the Commission was persuaded
by OSHA’s inconsistent application of the policy as well
as the inherent unfairness of holding general
contractors responsible for violations committed by
other contractors.
The Summit Contractors case is one of major significance
for OSHA and the construction industry. The decision
essentially reverses more than 30 years of case law that
upheld the Multiemployer Worksite Policy. Consequently,
the Secretary of Labor is expected to appeal the
decision to the U.S. Court of Appeals.
Tod Morrow is a Shareholder in the
Employment & Workers' Compensation
Practice Group. He can be contacted at
tmorrow@bdblaw.com or
330.491.5229.
