OSHA Regains Power to Cite General Contractors for Subcontractor Hazards

March 4, 2009

The Eighth Circuit Court of Appeals recently published an opinion that substantially affects general contractors nationwide. In Secretary of Labor v. Summit Contractors, Inc., the Eighth Circuit overturned a prior decision of the Occupational Safety and Health Review Commission (“OSHRC”) and held that the Occupational Safety and Health Administration (“OSHA”) may cite general contractors under its “controlling employer” citation policy, even though none of the general contractor’s employees were exposed to the alleged hazard.

This decision revives the application of OSHA’s “multi-employer worksite rules” with respect to general contractors, construction managers, and others who have broad-based control or supervision over a worksite. The decision permits OSHA to issue citations to general contractors and construction managers for violations if they have “the ability to prevent or abate hazardous conditions created by subcontractors through the reasonable exercise of supervisory authority.”

As background, Summit was the general contractor overseeing the construction of a college dormitory in Little Rock, Arkansas. Summit subcontracted the entire project and, consequently, had a total of only four employees at the construction site. After an inspection of the worksite, OSHA determined that one of Summit’s subcontractors had failed to comply with OSHA’s scaffolding standard. Despite the fact that it was the subcontractor who violated the standard and whose employees were exposed to the resulting hazard, OSHA issued a citation to Summit under OSHA’s “controlling employer” citation policy. The OSHRC vacated the citation, concluding that OSHA’s “controlling employer” citation policy directly contradicted the clear language of OSHA’s regulations, specifically 29 C.F.R. § 1910.12(a).

The Eighth Circuit dissected the wording of 29 C.F.R. §1910.12(a) and, unlike the OSHRC, found no ambiguity or contradiction. The court concluded that nothing in the language of the regulation precluded OSHA from issuing citations to controlling employers, regardless of whether that employer’s employees were exposed to any hazards relating to the violation. The court went on to say that even if the language was ambiguous, it would defer to OSHA’s reasonable interpretation of the standard.

Other interested parties argued on Summit’s behalf that the Secretary of Labor and OSHA could not lawfully apply the multi-employer worksite policy without first adopting it through the informal rulemaking process called for by the Administrative Procedure Act. The Eighth Circuit declined to address this argument because it was not properly raised by the parties, but hinted that OSHA “may be required to submit its multi-employer worksite policy to the informal rulemaking process.”

While the Eighth Circuit recognized that the “controlling employer” citation policy “places an enormous responsibility on a general contractor to monitor all employees and all aspects of a worksite,” it went on to say that Congress and OSHA were better suited than the courts to deal with “these policy concerns.”

One judge dissented from the majority’s opinion. Judge Beam agreed with the OSHRC’s reading of 29 C.F.R. § 1910.12(a), finding that it clearly precluded the application of the “controlling employer” citation policy to contractors whose employees were not exposed to any hazard. Judge Beam also addressed the practical implications of the majority’s opinion, stating that even “the most sophisticated general contractor” may have difficulty recognizing violations by specialized subcontractors due to the complexity of the Occupational Safety and Health Act and the modern construction site.

Though this decision may be ripe for appeal, the current interpretation of the law in Summit greatly increases OSHA’s ability to issue safety citations to general contractors, construction managers, and other entities that, while involved in construction work, typically do not have employees who are exposed to alleged safety hazards. General contractors, construction managers, and owners now have a greater need to be cognizant of all happenings on a worksite in order to avoid liability and legal exposure that can arise out of safety infractions and workplace injuries.

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