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Osha's Ability To Cite General Contractors For Subcontractors' Safety Violations Now In Doubt

Wednesday, July 04, 2007 12:26 pm

Osha's Ability To Cite General Contractors For Subcontractors' Safety Violations Now In Doubt

The Occupational Safety and Health Administration's authority to issue citations to general contractors for subcontractors' violations under OSHA's "Multi- Employer Citation Policy"has been called into question by the decision of a divided Occupational Safety and Health Review Commission. Secretary of Labor v. Summit Contractors, Inc., OSHRC No. 03-1622 (April 27, 2007).

The Multi-Employer Citation Policy

The current Multi-Employer Citation Policy is described in OSHA's Field Inspection Reference Manual, CPL 2.103. The policy provides that although employers may not have employees of their own exposed to a safety hazard, they still may be cited for a safety or health violation if such employers create the hazard, if they control the work site or if they have the authority to correct the hazard to which another's employee is exposed.

The citation in question arose from scaffolding violations committed by a masonry subcontractor on a construction site in Little Rock, Arkansas. Besides citing the subcontractor for the violations, OSHA also cited Summit, the project's general contractor, on the basis that, as general contractor, Summit was the "controlling employer."No Summit employees were exposed to the hazard created by the violation.

The Summit Decision

In vacating the citation issued to Summit, OSHRC Chairman W. Scott Railton and Commissioner Horace A. Thompson, III agreed in separate opinions that OSHA's Multi-Employer Citation Policy is invalid in the construction context when applied against a "controlling employer"who neither creates nor has employees exposed to the cited safety hazard.

The two commissioners premised their decision on 29 CFR §1910.12 (a), a regulation promulgated by OSHA in 1 [...]

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