A recent decision from the federal Occupational Safety and Health Review Commission calls into question OSHA’s ability to use the “multi-employer worksite” doctrine to issue citations for safety violations to parties other than the employer of the workers exposed to the danger.  Under the doctrine, OSHA can cite a company for safety violations even if its own employees were not exposed to the hazard, if it had “control” over the worksite.  The doctrine is used most frequently to cite general contractors on construction sites for safety issues involving employees of subcontractors.  In Secretary of Labor v. Summit Contractors, the cited contractor challenged the legal basis for a multi-employer citation, claiming that it was not the employer of those exposed to the hazard, and did not create the hazardous condition.

 

OSHRC held for the contractor, and vacated the citation.  In a split decision, the Commission found that the doctrine was based on a shaky interpretation of the OSH Act, and that it had been inconsistently interpreted by OSHA over the years.  While the decision did not flatly reject the doctrine, and was accompanied by a strong dissent, it limits use of the doctrine to situations where the general contractor has a significant role in creating the hazardous condition.

 

North and South Carolina have federally approved OSHA programs, and are not required to follow OSHRC precedent.  North Carolina OSHA in particular has been increasingly aggressive in its issuance of multi-employer worksite citations to general contractors in an effort to force them to police safety practices of subcontractors.  This decision provides a significant precedent and opportunity for employers in both states to contest multi-employer worksite citations.  DOL will probably appeal the decision to federal court, and the eventual outcome of the litigation may settle the use of the doctrine for both federal and state OSHA enforcement programs.