Safety no-man's-land?

Under a ruling by the Occupational Safety and Health Review Commission, (OSHRC No. 03-1622), OSHA will no longer be able to cite general contractors for safety violations at construction sites with multiple contractors.

A citation was issued in 2003 by OSHA to a Florida-based general contractor constructing a college dormitory in Arkansas. The serious citation stated the general contractor failed to ensure that employees of a subcontractor were utilizing fall protection while working on a scaffold 12 feet above the ground. The general contractor did not dispute the condition of the violation as described in the citation, but asserted that their company neither created nor had employees exposed to the hazard.

For the last 30 years, many courts have recognized that often only the general contractor can ensure safety and OSHA compliance at a construction site populated by many different contractors, particularly in the context of a dispute among subcontractors. One ruling stated that by freeing the general contractor of any compliance obligation as a controlling employer would create numerous situations where no one on a construction site will have both practical ability and legal obligation to ensure safety compliance. This would create a “no-man's-land” of safety compliance.

Until this recent ruling by the review commission, the multi-employer doctrine that was enforceable stated that an employer, including a general contractor who controls or creates a worksite hazard, may be liable for violations of the OSHA Act even if the employees exposed to the hazard are solely employees of another company.

The Florida-based general contractor argued that the long standing multi-employer doctrine was not enforceable because it is contrary to the OSHA regulation 29 C.F.R. 1910.12, a standard that places safety responsibility on the employer for its own employees engaged in construction work. Therefore, the OSHA multi-employer worksite citation policy in OSHA Directive CPL 2-0.124, which permits citing a non-exposing and non-creating employer, is unenforceable.

OSHRC chair W. Scott Railton and Horace Th ompson agreed that the OSHA multi-employer worksite policy is invalid as applied to a “controlling employer,” which has neither created the cited safety hazard nor exposed employees to it. Railton stated OSHA's inconsistent application of the policy, the checkered history of the multi-employer doctrine, and the fact that the regulation has not been amended since 1971 were factors in the decision.

Commissioner Th omasina Rogers wrote a dissenting opinion calling the decision a reversal of 30 years of commission precedence and that it deprives the secretary of the role of holding accountable those often in the best position to ensure workplace safety on construction projects.

This is a very important legal ruling that may have impact on SC&RA members working on construction projects. If you would like to learn more about this 31-page ruling visit www.oshrc.gov/decisions/html2007/03-1622.htm.