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Federal Appellate Court Upholds OSHA's Multiemployer Workplace Policy

    Client Alerts
  • December 30, 2011

Citations issued by the Occupational Safety and Health Administration typically apply to an employer whose employees are exposed to a threat of harm from an unsafe working condition. However, in some circumstances, companies can be cited for workplace hazards that threaten only another employer's personnel. OSHA's Multiemployer Worksite policy applies where one employer's creation of a hazard or control over a worksite creates hazardous conditions applicable to others, even if the cited company has no actual employee exposure.

This theory is most frequently used in citations issued to general contractors managing multiple subcontractors on a construction site. OSHA takes the position that the general contractor has sufficient control over the working area that it is responsible for monitoring and correcting hazards created by subcontractors' work. Earlier this month, the U.S. Court of Appeals for the District of Columbia Circuit rejected several procedural and substantive challenges to OSHA's Multiemployer Worksite citation policy.

In Summit Contractors, Inc. v. Secretary of Labor, the general contractor was cited when a subcontractor's electrical equipment was not properly grounded. The general contractor first challenged the Multiemployer Worksite policy on procedural grounds, contending that OSHA did not follow a formal rulemaking procedure when adopting this stance. The DC Circuit rejected this claim, noting that the policy was not a new rule, but only an explanation of enforcement policy for existing rules.

Next, the court disagreed with the contractor's contention that the policy opened the company to state common law liabilities by requiring it to enforce its subcontractor's safety practices toward its employees. The court characterized this argument as speculative. Finally, the DC Circuit rejected the contractor's claim that it had no way of knowing that the equipment was not grounded. The court noted that the general contractor had ordered the equipment used, and could have determined grounded status through a quick inspection.

General contractors and other employers with supervisory responsibility over worksites where multiple employers work will continue to face possible OSHA citations for unsafe working conditions, regardless of the source of the violations or the identity of the employees exposed to possible harm.