Under the Occupational Safety and Health Act, companies are responsible for preventing their employees from being exposed to safety violations. For years, OSHA has also asserted that a company can be held responsible for safety issues under its control even if the persons exposed to the hazards are employed by another entity. This multi-employer worksite theory is used most often by OSHA to cite general contractors on construction sites for safety violations committed by a contractor or subcontractor. Over the years, seven federal appellate circuits have recognized the validity of multi-employer worksite citations, with the Fifth Circuit Court of Appeals as the only one that had ruled otherwise. Last month, the Fifth Circuit joined its fellow appellate courts, overturning a precedent that limited OSHA citations to a company’s direct employees.
In Acosta v. Hensel Phelps Construction Co., OSHA cited a general contractor for trenching violations that exposed subcontractors’ employees to risk of cave-ins. The administrative law judge dismissed the citation based on a 1981 Fifth Circuit decision that rejected multi-employer worksite liability. On appeal, the Fifth Circuit overturned this case on the basis that OSHA has the discretion to interpret the OSH Act to include authority over controlling entities at worksites with more than one employer.
Outside of the Fifth Circuit, OSHA agencies have been aggressive in recent years, using multi-employer worksite authority to cite general contractors – and even project owners – for a variety of contractor and subcontractor safety practices, especially fall protection. With the Fifth Circuit in agreement now, employers no longer have much argument that OSHA is overreaching its authority by citing non-employers for workplace safety violations.