|March 25, 2009|
Previously published on March 12, 2009
In enforcing the Occupational Safety and Health Act with respect to construction sites, where employees of various employers often work in close proximity, the Occupational Safety and Health Administration (“OSHA”) historically followed a multi-employer worksite policy pursuant to which safety and health citations could be issued not only to employers exposing their own employees to safety hazards (“exposing employer”), but also to employers that created the hazard (“creating employer”), employers responsible for correcting the hazard (“correcting employer”), and employers exercising general supervisory authority over the construction worksite (“controlling employer”). OSHA’s use of the multi-employer worksite policy was significantly limited, however, by the Occupational Safety and Health Review Commission’s (“OSHRC”) 2007 decision in Secretary of Labor v. Summit Contractors, Inc. In that administrative decision, the OSHRC held that a controlling employer cannot be cited for a construction-industry-standard violation based on a hazard that it did not create and to which it did not expose its own employees. On February 26, 2009, however, the U.S. Court of Appeals for the Eighth Circuit reversed the OSHRC’s decision in Summit Contractors. Although the Eighth Circuit’s decision does not have legal effect outside the geographic boundaries of that court’s jurisdiction, it is likely to have the practical effect of increasing the number of OSHA citations issued to general contractors nationwide based on their subcontractors’ safety violations.
OSHRC’s Initial Decision in Summit Contractors
In Summit Contractors, OSHA issued a citation to Summit Contractors, Inc. (“Summit”), a general contractor on a dormitory construction project, for violating a fall-protection standard even though Summit neither created the hazard nor exposed any of its employees to it. The Secretary of Labor argued that Summit had contractual authority over its subcontractors and was therefore liable under OSHA’s multi-employer worksite policy as a “controlling employer.”
When the citation issued to the general contractor was appealed at the administrative level, the OSHRC held in a 2-to-1 decision that OSHA’s multi-employer worksite policy exceeded OSHA’s regulatory authority by creating duties for construction employers to protect individuals who were not their employees. The applicable regulation, 29 C.F.R. § 1910.12(a), states as follows:
The [construction industry] standards . . . shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each 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.
Although the two members of the OSHRC who formed the majority in the Summit Contractors decision reached their conclusions for different reasons, both held that under this regulation, construction employers owe a duty only to their own employees. This OSHRC ruling became the binding authority nationwide on the scope of “controlling employer” liability in the construction industry.
The Eighth Circuit’s Reversal of Summit Contractors
OSHA petitioned the Eighth Circuit Court of Appeals for review of the OSHRC decision, and in Solis v. Summit Contractors, Inc., the court reversed that decision as it applies in the Eighth Circuit. Dissecting the language of section 1910.12(a), the court read the regulation as requiring employers to protect their employees’ (1) employment and (2) places of employment. The court found that this second requirement creates a duty for construction employers to prevent safety hazards at the construction site regardless of whether their employees are exposed to the hazards, explaining that a contrary reading would render the second requirement identical to the first. Thus, the Eighth Circuit held that the plain language of the regulation does not preclude “controlling employer” liability for general contractors whose employees are not exposed to a hazard. The court also noted that even if the regulation’s language were ambiguous, it would defer to OSHA’s interpretation of the regulation, which supports “controlling employer” liability. The Eighth Circuit therefore reversed the OSHRC’s decision in Summit Contractors and reinstated the multi-employer worksite policy as it had traditionally been applied by OSHA up to 2007.
The dissenting judge parsed the language of section 1910.12(a) differently than the majority. The dissent found no redundancy in requiring the employer to protect both the “employment” and the “places of employment” of its construction employees and concluded that the regulation’s plain language limits a construction employer’s duties to protecting its own employees.
The Eighth Circuit’s decision restores OSHA’s traditional multi-employer worksite policy in that circuit, which encompasses Arkansas, Missouri, Iowa, Minnesota, Nebraska, North Dakota, and South Dakota. Thus, a general contractor in those states can be held liable for violations of construction safety standards by a subcontractor, even if the general contractor’s employees are not exposed to the hazard posed by the violation. The OSHRC decision in Summit Contractors dictating a more restrictive approach to “controlling employer” liability, however, remains the binding authority on this issue in other states. Nevertheless, OSHA, encouraged by the Eighth Circuit’s decision, may issue citations nationwide to general contractors for subcontractors’ violations in the expectation that appellate courts in other circuits would agree that the broad, traditional approach to “controlling employer” liability is the correct one. As a practical matter, therefore, until litigation over the multi-employer worksite policy is resolved with finality by the Supreme Court, general contractors would be wise to guard against “controlling employer” liability in every state in order to avoid OSHA citations and the costly litigation they bring. Employers should evaluate their procedures for identifying and correcting all potential safety hazards at the construction sites they control, including safety hazards that affect only subcontractors’ employees.