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General Contractor’s Responsibility for Jobsite Hazards Created by Subs Affirmed by Court, Commission
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June 28, 2010
By Elizabeth Walsh
Howrey LLP
A U.S. Court of Appeals has affirmed the Occupational Safety and Health Administration’s long-standing policy of citing general contractors for failing to prevent or abate hazardous conditions on their construction sites through the reasonable exercise of supervisory authority. Solis v. Summit Contractors, Inc., 558 F.3d 815 (2009), reh. den.
Pursuant to this “controlling employer” citation policy, OSHA may cite general contractors at jobsites regardless of whether the general contractors actually created the hazard or whether the general contractors’ employees even were exposed to the hazard if the general contractors have the ability to prevent or abate hazardous conditions created by subcontractors through the reasonable exercise of supervisory authority.
Such “controlling employer” liability is one of OSHA’s four “multi-employer worksite” liabilities (regardless of industry sector). The others are “creating employers,” “exposing employers” and “correcting employers.” They are described in “OSHA Instruction, Directive No. CPL 2-0.124 re Multi-Employer Citation Policy,” effective December 10, 1999. Click here to view the description.
In the case at issue, Summit Contractors, Inc. was the general contractor on a college dormitory project in Little Rock, Arkansas. Having subcontracted all work on the project, Summit had only four employees on-site: a project superintendent and three assistant superintendents. The superintendent walked the jobsite once or twice a day.
During these inspections, Summit’s superintendent more than once observed employees of its masonry subcontractor working on scaffolding more than 10 above the ground without proper fall protection and without guardrails. In each instance, the general contractor’s superintendent advised the subcontractor to correct the safety violations observed. The subcontractor would promptly add required protective measures, only to omit them again as scaffolding was moved to another work location on site.
On one of these occasions, an OSHA Compliance Officer observed the scaffolding violations. He issued citations both to the masonry subcontractor and to the general contractor for violating OSHA regulations requiring fall protection and guardrails when working on scaffolding more than 10 feet above the ground. 29 CFR §1926.451(g)(1)(vii).
Summit contested the citation on the basis that its duty to protect against hazards extended only to its own employees, none of whom had been exposed to any risk of falling from the scaffolding. A reviewing Administrative Law Judge rejected the argument and upheld the citation. 2004 WL 5365176 (OSHRC June 14, 2004). On appeal of that ruling, the Occupational Safety and Health Review Commission reversed, vacating the citation. 2007 WL 2265137 (OSHRC April 27, 2007). Two members of the three-member Commission held that Summit could not be cited as a controlling employer because of express limitations in OSHA’s construction-industry specific standards, particularly 29 CFR §1910.12(a). That regulation states: “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.”
On further appeal, the 8th Circuit reviewed the history of OSHA’s controlling employer policy and determined, in a 2-1 decision, that the regulation unambiguously permitted OSHA to cite “controlling employers.” It interpreted the regulation to apply to the general contractor’s own employees and to all places where its employees work, holding that the general has a duty to protect others at the place of employment so long as the general contractor also has employees at that location. The case was remanded to the Commission for further proceedings consistent with the opinion.
On remand, the Commission determined the only issue remaining: “whether Summit exercised sufficient control over the worksite to prevent or detect and abate a hazardous condition created by its subcontract.” 2009 WL 2857148 (OSHRC July 27, 2009). The Commission noted that Summit had stipulated to its knowledge of the violations. In upholding the citation this time, the Commission identified three factors tending to indicate Summit’s control over the hazardous condition:
|  | General contract terms: Summit’s contract for the project assigned Summit “exclusive authority to manage, direct and control” the construction and obligated the general contractor “to comply with applicable laws, supervise all safety precautions, and take reasonable precautions for safety of employees on the project.”
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| | Subcontract terms: Summit’s subcontract with the mason stated that “use of the site and coordination of all on-site personnel will be performed under the complete direction of Summit’s staff.” Further, “the subcontract permitted Summit to terminate and remove [the masonry subcontractor] if it disregarded OSHA regulations, temporarily or permanently bar specific [mason] personnel from the site, and withhold payment ‘until the subcontractor has satisfied all of its obligations.’ ”
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| | Prior abatement activities: Summit’s superintendent “had to do no more than request abatement for the subcontractor to comply. On those occasions when he observed [subcontractor] employees working on scaffolds without fall protection, he would, without exception, inform the subcontractor of the hazardous condition and, without exception, [the subcontractor] would abate the condition.”
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The Commission concluded, “Summit had failed to take the reasonable steps and measures necessary to obtain abatement.” More than six years after the OSHA Compliance Officer observed the scaffolding violations, Summit’s citation for “serious violation” of the applicable regulation was finally affirmed.
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For more information about the issues covered in this report, please contact Elizabeth Walsh in our Washington, D.C. office at 202-383-7392 or at walshe@howrey.com or contact your Howrey attorney. For more information about Howrey's Construction Practice Group, click here.
©2010 Howrey LLP
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