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Timothy G. Costello, Esq.
tgc@kclegal.com
In a landmark decision issued on April 27, 2007, the Occupational Safety & Health Review Commission (“Commission”) struck down the Occupational Safety & Health Administration’s (“OSHA”) Multi-Employer Citation Policy as an invalid interpretation of 29 C.F.R. § 1910.12(a). Secretary of Labor v. Summit Constructors, Inc. OSHRC Docket No. 03-1622 (2007).
BACKGROUND
OSHA’s Multi-Employer Citation Policy has been in existence for approximately thirty (30) years, but has had checkered enforcement history. The Commission usually utilized it on construction sites or in a manufacturing setting where multiple outside contractors are working. In such situations, OSHA typically cited a general or a “supervisory” contractor in addition to the subcontractor who allegedly violated an OSHA standard. OSHA’s theory was that the general contractor or other “supervisory” contractor either controlled the job site sufficiently to correct the hazard or created the hazard. Under the Multi-Employer Citation Policy, contractors or employers who had none of their own employees exposed to any hazard were still cited.
Several Courts of Appeals have commented that the Multi-Employer Citation Policy appeared to go beyond the regulations that permit OSHA to cite employers in the construction industry. The regulation at issue reads as follows:
- Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.
29 C.F.R. § 1910.12(a) (emphasis added)
The Commission decided, in a 2 to 1 vote, that OSHA’s Multi-Employer Citation Policy is invalid because it goes beyond the clear text of the above regulation. That text expressly reads that each employer will protect “each of his employees engaged in construction work” by complying with the appropriate standards.
The Commission went on to state that OSHA’s interpretation is “untenable,” and it finally decided to give effect to the plain language of the regulation, especially since OSHA has inconsistently applied the Multi-Employer Citation Policy over the thirty (30) years of its existence.
WHAT DOES THIS MEAN?
The bottom line is that every employer on a construction site or in the manufacturing setting where construction work is taking place is responsible for complying with the OSHA standards that apply to their own work and employees. The Commission’s holding no longer punishes a general contractor or employer when it alerts a subcontractor to a hazard that its employees are exposed to, and the mere fact that the general contractor or employer does so or has some authority to “throw them off the job” no longer can be used to establish liability for the subcontractor’s OSHA violations. There are still two avenues OSHA may pursue. It may take the position that on some joint operations on a construction site (e.g., a controlled lift or combined effort regarding a specific task) there is still liability for both contractors joining in that work because they are “joint employers” for that specific segment of the work. OSHA could also seek to amend the regulation. For now, there is no longer a Multi-Employer Citation Policy.
If you have questions concerning this decision or any other employment law issues, please contact our educational services department at (414)423-1330.
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