Occupational Safety & Health Review Commission Overturns OSHA's Multi-Employer Worksite Policy

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May 24, 2007

In a ruling issued April 27, 2007, the Occupational Safety and Health Administration's multi-employer worksite policy was overturned. This revolutionizes OSHA practice, procedure and law as applied to general contractors on construction sites.

Virtually since its inception in the early 1970s, OSHA has issued citations to general contractors as well as subcontractors when its inspectors have found violations of safety standards at construction sites that, in OSHA's view, could have been prevented by the general contractor. It incorporated this practice and policy into a number of policy directives, the latest being OSHA Directive CPL 2-0.124 (Multi-Employer Citation Policy), which it issued in 1994. These policies have been repeatedly upheld by the Occupational Safety and Health Review Commission and its Administrative Law Judges who hear challenges to OSHA citations. The policies have also been upheld generally by the courts.

In Secretary of Labor v. Summit Contractors, OSHRC Docket No. 03-1622 (OSHRC April 27, 2007) [available on-line at www.oshrc.gov], the commission vacated an OSHA citation issued to a Jacksonville, Florida based general contractor arising from scaffolding conditions on a dormitory construction job in Little Rock, Arkansas. The general contractor had been held responsible along with the subcontractor under OSHA's "controlling" employer policy even though none of its employees had been exposed to the hazard. The basis for the ruling was the conflict between OSHA's policy as stated in directives and the limiting language of the pertinent regulation that OSHA had issued in 1971, 29 C.F.R. 1910.12(a). The regulation requires employers to "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." The regulation does not impose obligations on an employer to protect other contractor's employees.

This ruling completely changes the landscape of OSHA regulation and enforcement on construction job-sites. It eliminates the agency's ability to issue citations to general contractors for subcontractors' violations of OSHA standards merely by citing the general contractor's ability to control the project and the job-site. It also brings OSHA law for construction into line with the law for general industry. See IBP Inc. V. Herman, 144 F.3d 861 (D.C. Cir. 1998) (manufacturer not liable for contractor's OSHA violations).

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This was a 2 - 1 decision, with a strong dissent. It is likely that the Secretary of Labor will appeal the decision. It is possible that OSHA will undertake a rulemaking to seek to incorporate its multi-employer doctrine into its standards. In that case, general contractors and others would have the opportunity to comment on OSHA's proposal.

Donald D. Anderson
904.798.3230
[email protected]

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