A recent decision by the eighth circuit court of appeals has been touted as having a major effect on construction safety. Simply stated, it upheld a citation issued by the Occupational Safety and Health Administration (OSHA) to Summit Contractors, a general contractor (GC), even though the GC neither created nor allowed its employees to be exposed to a hazard. The hazard cited the lack of guardrails on a scaffold used by a subcontractor. The significance of this decision is best understood by reviewing the history of OSHA policy and the challenges to it.

The relationship between policy and its challenges is based in the elements of the Occupational Safety and Health Act of 1970 (the OSH Act). It prescribed that an employer: “(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this chapter.”

It also established two distinct players, the secretary of labor, who has oversight of OSHA, and the Occupational Safety and Health Review Commission (OSHRC). The secretary, through OSHA, creates and enforces workplace health and safety standards. The OSHRC carries out the adjudicatory functions of the OSH Act. Challenges to citations issued by the secretary are first assigned to an administrative law judge (ALJ). Appeals to the ALJ decisions are heard by the OSHRC. Any OSHRC decision appeals are brought to the federal courts.

As described above, the first duty established by the OSH Act restricts an employer’s responsibility only to its employees. However, the second responsibility is to standards. Depending on the language in the standards set by the secretary and OSHRC interpretation, the duty can extend compliance to mean for the good of all employees on a multiemployer work site. From the beginning, the secretary established, through policy, how these standards would be applied.

On May 20, 1971, Labor Secretary James D. Hodgson published the first Field Operations Manual. It described how OSHA would enforce the standards; it included the first multi-employer work site policy. According to this multi-employer work site policy, OSHA may cite employers who exposed their own employees to hazardous conditions or who created a hazardous condition. Basically, OSHA applied the standards to any employers who endangered employees whether they were an employer’s own or those of another employer.

Initially, OSHRC offered a narrow interpretation of this policy. In a 1973 case against City Wide Tuckpointing Serv. Co., OSHRC held that OSHA could not issue a citation to a subcontractor who created a hazard, but whose own employees were not exposed to or affected by the hazard. Also in 1973, OSHA cited Gilles & Cotting Inc., a general contractor, for two employees of a subcontractor who died in a scaffold collapse. None of Gilles & Cotting’s employees used or were affected by the scaffold. OSHA justified the citation: “Because as general contractor, it had control of the job site.” This was the first time a citation was issued based on the controlling-employer theory. When the OSHRC reviewed the citation, it found in favor of Gilles & Cotting. It stated that the OSH Act was based on an employment relationship. The OSH Act imposed duties only on “each employer.” In 1974, after the OSHRC’s City Wide and Gilles decisions, OSHA changed its multiemployer work site policy to an exposing-employer citation policy.

At the same point, interpretations made by the OSHRC were challenged in the federal courts. In 1975, the Second Circuit Court of Appeals rejected an OSHRC interpretation restricting citations. It stated the OSH Act was “in no way limited to situations where a violation of a standard is linked to exposure of his employees to the hazard.” A case before the Seventh Circuit, although the multiemployer policy was not a component of the decision, noted that it wasn’t certain that “… a general contractor, who has no employees of his own exposed to a cited violation is necessarily excused from liability under the [OSH] Act.”

Based on these cases, the OSHRC announced a revised position in 1976. A “contractor who has either created a hazard or controls a hazardous condition has a duty to comply with OSHA standards even if the contractor’s own employees are not exposed to the hazard.”

The secretary also responded to these events. An attempt was made to establish a multiemployer standard to include creating and controlling employer citations. However, the decisions made by the OSHRC allowed citations against general contractors, negating the need for a regulation.

During this period, the OSHRC asserted that “the general contractor normally has responsibility to assure that the other contractors fulfill their obligations with respect to employee safety which affect the entire site. The general contractor is well situated to obtain abatement of hazards, either through its own resources or through its supervisory role with respect to other contractors. It is therefore reasonable to expect the general contractor to assure compliance with the standards insofar as all employees on the site are affected. Thus, we will hold the general contractor responsible for violations it could reasonably have been expected to prevent or abate by reason of its supervisory capacity.”

In 1981, a correcting employer citation policy was added. This allowed OSHA to issue citations to the employer responsible for correcting the hazard, even if its own employees were not exposed to the hazard. In 1994, the creating employer and the controlling employer citation policies were added. The current policy was published in 1999. It contains all four citation policies: exposing employer, correcting employer, creating employer and controlling employer.

Given this policy, the OSHRC decisions and responses made by appellate courts, enforcement has operated under the guide of a “reasonable care” standard. Employers who were identified as a creating, exposing, correcting or controlling employer, who could reasonably be expected to prevent or detect a hazard and did not, were cited.

With respect to the controlling contractor, there was a question about the relationship with a subcontractor and a lower expectation of “reasonable care” toward the subcontractor’s employees. There is also a question as to when a general contractor is a controlling contractor. Several factors addressed by the policy helped the compliance officer make these determinations.

The most obvious factor defining a general contractor as a controlling contractor would be explicit language in a contract giving it that authority. Generic contracts often require a subcontractor to adhere to safety and health requirements and to correct violations the controlling employer discovers. Even if the language is not explicit, it may be indicated through other contract rights. For example, if the contract gives general contractor broad responsibility at the site involving aspects of the job that could have an impact on safety, this may translate to being a controlling contractor for the purpose of issuing a citation.

Regardless of contract language, if a general contractor exerts authority in practice over a subcontractor, OSHA will deem it a controlling contractor. As for architects, engineers and others, they are only controlling employers if involved in a construction project to the extent that they would act as described above.

Once controlling contractor status has been determined, fulfillment of “reasonable care” is evaluated. This is based on factors, such as frequency of inspections, the system for correcting hazards and enforcement of the other employers’ compliance with safety and health requirements. The judgments made by the compliance officer on this issue were often the substance of the appeals before the OSHRC and appellate courts.

Recently, the focus has shifted from the obligation of “reasonable care” to whether or not a legal requirement exists for an employer to protect the employees of another. As noted earlier, the OSH Act specifically states under the general duty clause that the obligation is specific to one’s own employees. The only avenue for an obligation to other employees is the reference in the OSH Act to an employer’s obligation for compliance with the OSHA standards. The standard related to the multiemployer policy is 1910.12(a), which states: “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.”

Although previous decisions by the OSHRC and the courts referenced the tension between this regulation and policy, it was never really addressed. The only court to render any decisions related to this was the North Carolina Supreme Court in Commissioner of Labor v. Weekley Homes L.P. (N.C. Ct. App. 2005). In that case, the court ruled the secretary’s multiemployer worksite policy did not exceed the scope of 1910.12(a).

This brings us back to the Summit Contractors case. This case sets precedent nationally. The argument and response revolved around the grammar in 1910.12(a). The court divided the paragraph into two parts. Sentence one, identified as Part (1), deemed in simple language that an “employer shall protect only his employees.” However, in part (2) or sentence 2, the court felt the term “of each of his employees” only limits the term “places of employment” such that the employer must protect the places of employment where the employer actually has employees. Therefore, the Summit citations were reinstated. Going forward, the decision places an obligation on general contractors to protect the place of employment, including others who work at the place of employment, so long as the employer also has employees there.

There were dissenting opinions as the case progressed through the appeals process and the court’s recognition as to the ambiguous language of 1910.12(a) may warrant future review. However, every contractor on site should carefully review the language in its contracts and OSHA’s multi-employer policy and take “reasonable care” to ensure its “places of employment” are free of hazards.

O’CONNOR is with Intec, a safety consulting, training and publishing firm that offers on-site assistance and produces manuals, training videos and software for contractors. Based in Waverly, Pa., he can be reached at 607.624.7159 and joconnor@intecweb.com.