By Lawrence F. Feheley , Esq.
Since 1976, OSHA has imposed responsibility for safety at multi employer worksites on a wide range of employers. Although a multi-employer worksite, which is one in which a number of contractors or employers work at the same site contemporaneously, is not limited to construction sites, construction is the most prevalent incidence of multi-employer situations.
The landmark OSHA decision in this area was the 1976 decision of the Occupational Safety and Health Review Commission in Anning-Johnson Co., 4 OSHC 1193 (1976). In that case, the Review Commission ruled that an employer whose employees are exposed to a hazard can be held liable even if it did not did not create the hazard, but it had the means to control or rectify the violation.
This was consistent with OSHA’s 1994 Field Inspection Reference Manual, which provided that OSHA citations could be issued to any employer on the jobsite who created or controlled hazards, or who corrected hazards, regardless of whether that employer’s own employees were exposed to the hazard or not. This was interpreted to mean that any employer who “controlled” the jobsite could be cited for safety violations at the site, regardless of whether that employer’s employees created the hazard. This meant that an employer or contractor who had supervisory control over the worksite, including the power to correct safety hazards or to require others to make corrections, such as a general contractor, could be cited for safety hazards at the site. Therefore, general contractors were often held responsible for safety violations committed by subcontractors.
Two months ago, the Review Commission issued a new decision which significantly retreated from this longstanding rule. In Secretary v. Summit Contractors, 21 OSHC 2020 (2007), the Review Commission ruled that an employer whose employees were not exposed to a safety hazard could not be issued a citation. The basis for this ruling was an OSHA construction safety regulation, which provides that “each employer” must protect the employment of “each of its employees” engaged in construction work. Although this was a 2-1 decision, with a vigorous dissent, the ruling appears to establish the principle that each contractor has responsibility for protecting the safety of its own employees at the site, and that a contractor will generally not be liable for the safety violations of other contractors.
The Summit Contractors case was somewhat unique on its facts and its future applicability may be limited to those facts. In the case, Summit Contractors was the general contractor on the site and it employed only supervisors to the job. All of the actual construction work was performed by employees of the subcontractors. A subcontractor was cited for not providing fall protection to its workers. Summit Contractors had assumed no responsibility for safety compliance, inspections or supervising other workers in its contract, and it did not otherwise undertake any of those responsibilities at the job. Further, none of Summit Contractors’ employees were exposed to the fall hazard.
By all accounts, the Summit Contractors decision appears to be a major shift in OSHA’s regulation of the multi-employer worksites. General contractors can still expect OSHA citations for safety hazards they create, or those to which their own employees are exposed (regardless of who created them). However, unless this decision is reversed on appeal, or by legislation or a later contrary decision, general contractors should not be liable for OSHA citations for safety violations committed by subcontractors simply because of their ability to control the jobsite.