|June 26, 2009|
Previously published on June 2009
For nearly 40 years, the Occupational Safety and Health Administration's ("OSHA") enforcement scheme has included a policy called the "multi-employer worksite citation policy." Under this policy, OSHA may issue citations to general contractors at construction sites who have sufficient control over the site to prevent or abate hazardous conditions created by subcontractors through the reasonable exercise of their supervisory authority. Thus, the general contractor may be cited even if its own employees were not exposed to a hazard, and even if it did not create the hazard.
The multi-employer worksite citation policy has been challenged repeatedly over the years with varying degrees of success, based principally on a claim that the policy violates a published OSHA standard, 29 CFR § 1910.12(a). That standard provides that "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." General contractors challenging the policy claim that this standard requires them to protect only their own employees, not employees of subcontractors or others.
In the most recent challenge, Solis v. Summit Contractors, Inc. and Occupational Safety and Health Review Commission, 558 F.3d 815 (8th Cir. 2009), Summit was a general contractor on a college dormitory project. Because Summit subcontracted the entire project, it had only 4 employees on the site: a project superintendent and 3 assistant superintendents. Summit onsite employees repeatedly advised the masonry contractor to correct fall protection hazards. During an OSHA inspection, the OSHA Compliance Officer observed the masonry subcontractor's employees working without fall protection. Citations were issued to the masonry subcontractor. In addition, although Summit did not create the hazard, nor were any of its employees exposed, OSHA also issued citations to Summit as a controlling employer based upon the multi-employer worksite citation policy.
Summit contested the citations and challenged the policy before the OSHRC and eventually the federal Eighth Circuit Court of Appeals. On February 26, 2009, a panel of the Eighth Circuit Court of Appeals in a 2 to 1 decision reversed the OSHRC and upheld the multi-employer worksite citation policy as applied to controlling employers. The majority rejected Summit's interpretation of 29 CFR § 1910.12(a) as a limitation of OSHA's authority to cite employers who neither created a hazard nor exposed their employees to a hazard. In upholding the citations, the Court recognized that OSHA's policy "places an enormous responsibility on a general contractor to monitor all employees and all aspects of the site."
The Eighth Circuit decision, by itself, is not binding upon New England employers, but it reinforces OSHA Region I's use of the policy. The New England OSHA offices are sure to rely on decisions such as this in continuing to cite general contractors for safety violations that they neither create nor which expose their own employees to danger. The availability of multi-employer worksite citations will continue to expose general contractors to potential claims from third parties for construction site accidents, whether or not the general contractor created the particular hazard.