The Occupational Safety and Health Review Commission recently published an opinion that significantly changes the application of the multi-employer worksite doctrine. In Secretary of Labor v. Summit Contractors, the Review Commission considered whether a general contractor may be properly cited as a “controlling employer” under the multi-employer worksite doctrine for a worksite hazard that the contractor did not create and to which its employees were not exposed.
For over thirty years, the Occupational Safety and Health Administration (“OSHA”) has used the multi-employer worksite doctrine to determine how to allocate liability for safety violations occurring on worksites occupied by more than one employer. From its establishment, OSHA has applied the doctrine to hold general contractors responsible for safety hazards occurring on a worksite, reasoning that the general contractor, in its supervisory capacity, could reasonably prevent such hazards.
The Review Commissions’ decision in Summit, however, invalidates the application of the multi-employer worksite doctrine to general contractors, construction managers and others whose own employees are not exposed to an alleged safety hazard or violation. The Summit decision is based upon the language contained in 29 C.F.R. §1910.12(a), which limits an employer’s safety obligations by requiring that an employer maintain a safe construction worksite only for “his employees.” In other words, the regulation clearly dictates that an employer is only responsible for ensuring that its own employees are not exposed to safety hazards. The Review Commission recognized that OSHA’s multi-employer policy, which allows issuance of citations to general contractors who do not create hazards and do not expose their employees to them, is directly contrary to the language of the regulation. The Review Commission found that the plain language of §1910.12(a) trumps OSHA’s unilaterally adopted multi-employer worksite policy and prohibits OSHA from issuing citations to general contractors and other employers whose own employees are not exposed to an alleged hazard.
The Summit decision will greatly limit OSHA’s ability to issue safety citations to general contractors, construction managers, property owners and other entities that, while involved in construction work, typically do not have employees who are exposed to alleged safety hazards. Employers should, however, still remain conscious of workplace safety and diligent in maintaining and enforcing safety policies and programs, as there are other potential avenues of liability and legal exposure that can arise out of safety infractions and workplace injuries.
For more information on this important decision, please contact Bob Dimling, firstname.lastname@example.org, or Andy Kaake, email@example.com.