Editors note: This article was first published in the September, 2007 issue of the Commercial Builder/Architect.
On April 27, 2007, the Occupational Safety and Health Review Commission (OSHRC) handed down a split decision in Secretary of Labor v. Summit Contractors, Inc., OSHRC No. 03-1622 which strikes down the Occupational Safety and Health Administration's (OSHA) authority to issue citations to general contractors based on violations committed by subcontractors in construction work settings. Although the decision is currently pending an appeal in the U.S. Court of Appeals for the 8th Circuit, it marks a resolution to years of conflict and "marked tension" between the enforcement policy and 29 C.F.R. §1910.12(a).
In 1971, OHSA developed 29 C.F.R. §1910.12(a), which states that "[e]ach employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with … appropriate standards…" Thereafter, a standard policy was enacted to govern issuing citations in connection with §1910.12(a). Since 1971, various changes have been made to the enforcement. The most significant change came in 1994 when OSHA issued its Firm Inspection Reference Manual (FIRM) which stated that violation citations should be issued to not only exposing employers, but also employers that create, control or may be able to correct the hazard. Commonly known as the Multi-Employer Citation Policy, it applies even if an employer does not have any of its own employees exposed to the safety hazard.
The case of Secretary of Labor v. Summit Contractors, Inc. challenged the authority of OSHA to issue a citation to a general contractor based on a subcontractor's scaffolding violations. In the split decision, OSHRC Chairman, W. Scott Railton, found that the reliance on the Multi-Employer Citation Policy was "impermissible given the contrary language of … §1910.12(a)." He opined that the language of §1910.12(a) clearly states "his employees" and has no grounds to support a citation issuance to an employer without employees exposed to the danger.
In clarifying his opinion, Railton explained that there has been a "marked tension" between §1910.12(a) and the Multi-Employer Citation Policy since its inception in 1994. Although the issue had gone undecided, it could no longer be overlooked. Railton explained that the ever-changing policy guidelines since 1971, with no amendment to §1910.12(a) since that time clearly show that "[t]he Commission must give effect to the plain language of the regulation, especially in the face of the Secretary's inconsistent doctrine."
In clarifying his opinion, Railton explained that there has been a "marked tension" between §1910.12(a) and the Multi-Employer Citation Policy since its inception in 1994. Although the issue had gone undecided, it could no longer be overlooked. Railton explained that the ever-changing policy guidelines since 1971, with no amendment to §1910.12(a) since that time clearly show that "[t]he Commission must give effect to the plain language of the regulation, especially in the face of the Secretary's inconsistent doctrine."
Special Note: This decision to invalidate the Policy was strictly confined to construction work, defined in §1910.12(b) as "work for construction, alteration, and/or repair, including painting and decorating." The Policy is remains applicable to those in "general industry" under 29 C.F.R. §1910.
Although the decision is currently being appealed, vacated citations will play an integral part to the livelihood of general contractors and subcontractors. Liability on a jobsite often plays a critical role when it comes to lawsuits arising out of construction accidents. The focus of contention for contractors is the standard duty of care that they are required to follow. Prior to the OSHRC's decision, this meant that general contractors could easily be cited and have the citation used against them on the question of liability in a large lawsuit, even if none of its employees were involved. If the OSHRC decision is affirmed, contractors can be assured that a citation will only be valid in a construction work setting if the violation pertains to its own employees exposed to danger.
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If you have any questions regarding the article above, please feel free to call Jillian at 630-653-2600, or via jbook@querrey.com.
