The Occupational Safety and Health Administration (OSHA) may issue citations for safety violations at construction sites. Further, at those construction sites, OSHA may hold one employer responsible for the safety violations of other employers if the initial employer could reasonably be expected to prevent and abate the violations, based on some supervisory authority or control over the worksite. OSHA takes such actions under its “multi-employer citation policy.” Recently, in a logical extension of that general policy, the Occupational Safety and Health Review Commission (OSHRC) reversed its own initial determination and upheld a citation against a general contractor for a safety violation that the contractor did not commit and to which none of the contractor’s own employees were exposed. Sect. of Labor v. Summit Contractors Inc., OSHRC, No. 03-1622, 7/27/09.
In that case, Summit Contractors was the general contractor on a college dormitory construction site in Little Rock, Arkansas in June 2003. On June 18 and 19, an OSHA compliance officer observed and photographed employees of a sub-contractor, All Phase, working on scaffolds without fall protection. Summit had four employees at the site on those days, each of who had oversight responsibility for subcontractors on the project, including All Phase. Summit’s contract with the owner of the project assigned to Summit the “exclusive authority to manage, direct and control” the construction, and required compliance with “applicable laws.” Summit’s contract with All Phase permitted Summit to terminate and remove All Phase if it disregarded OSHA regulations. Based on those facts, OSHA issued a “serious” citation to Summit for the violation.
An administrative judge upheld the citation, and Summit contested that decision. An initial determination by OSHRC precluded the Secretary of Labor from issuing the citation to Summit as a “controlling employer” for a violation created by another employer Summit’s own employees were not exposed to the hazard. The Secretary appealed the holding to the 8th U.S. Circuit Court of Appeals, which rejected that conclusion and remanded the matter for “further proceedings.” On remand, the OSHRC reversed its initial determination, and concluded that Summit was a “controlling employer properly cited under the multi-employer citation policy for violative conditions it did not create and to which none of its employees was exposed.” The reversal was based largely on the fact that although Summit was aware of the unsafe conditions with respect to the scaffolding, it failed to inform All Phase of that safety violation. That inaction was determined to be a failure to take the required “reasonable steps and measures necessary to obtain abatement,” and was deemed sufficient to support OSHA’s designation of a “serious” violation.
The lesson is clear: in addition to an employer’s general duty to comply with OSHA’s safety regulations, any company deemed to have supervisory control over a worksite – especially if that responsibility specifically includes the power to correct safety and health violations – must exercise reasonable care to prevent and detect violations on the site, whether or not those violation affect the company’s own employees. To do otherwise risks liability for the penalties associated with citation by OSHA.