Federal Occupational Safety and Health Review Commission Limits 30 Years of Precedent Concerning Multi-employer Worksite Doctrine
Since the early days of enforcement of the Occupational Safety and Health Act of 1970, 29 § U.S.C. 651 et seq., the Occupational Safety and Health Review Commission (Review Commission) has upheld citations issued to employers alleging a violation of the multi-employer worksite doctrine. Under this doctrine, an employer having control over a worksite has a duty to ensure that other employers at the worksite comply with occupational safety and health standards. This means that a controlling employer could be liable for violations of occupational safety and health standards even though none of its own employees have been exposed to a hazardous condition at the worksite.
In a decision dated April 27, 2007, however, the Review Commission limited this longstanding precedent by concluding that under the plain language of 29 C.F.R. § 1910.12(a), a “controlling employer” engaged in construction work does not have a duty to ensure that other employers at the worksite comply with occupational safety and health standards. Summit Contractors, Inc., OSHRC Docket No. 03-1622 (2007).
In Summit Contractors, Inc., OSHRC Docket No. 03-1622 (2007), Summit Contractors (Summit) was the prime contractor for the construction of a college dormitory in Little Rock, Arkansas. Summit had contracted with All Phase Construction, Inc. (All Phase) to perform exterior masonry work on the building. A compliance officer for the Occupational Safety and Health Administration (OSHA) visited the worksite and saw employees of All Phase working from scaffolds without appropriate fall protection. OSHA subsequently issued a citation to Summit alleging a violation of 29 C.F.R. § 1926.451(g)(1)(vii) for failure to guard a scaffold, even though none of Summit’s employees had been exposed to a fall hazard. OSHA contended that as a controlling employer, Summit failed to ensure that All Phase used appropriate fall protection. OSHA also issued a citation to All Phase alleging a violation of the very same standard under which Summit had been cited.
The Review Commission vacated the citation and concluded that under the plain language of 29 C.F.R. § 1910.12(a), an employer engaged in construction work does not have a duty to ensure that other employers at the worksite comply with occupational safety and health standards. Section 1910.12(a) states, in pertinent part: “Each employer shall protect the employment and places of employment of each of his employees engaged in construction work” (emphasis added). The Review Commission explained, among other things, that the phrase “his employees” means that an employer who is engaged in construction work is responsible only for the safety and health of its own employees.
The Summit Contractors decision is significant in that it modifies more than 30 years of Review Commission precedent. The decision does not affect, however, Review Commission precedent concerning the controlling employer duties in the general industry context. OSHA currently plans to appeal the decision to the Eighth or Eleventh Circuit Court of Appeals.