By: Thomas H. Welby Published: May 2009

Safety Policy: Eighth Circuit Adopts Broad View of General Contractor's Duty to Protect Subcontractor's Employees

An issue long unsettled for purposes of the OSH Act is the extent of a general contractor for OSHA violations affecting only subcontractors’ employees.

A view long favored by the OSH Review Commission, is that the general contractor may be cited for violations it created, and any to which its own employees were exposed, but not for hazards created by others subcontractors or other employers at the site.

The Secretary of Labor for years has proposed a more expansive view, that the GC (at least where it has authority sufficient to prevent or abate hazards) must protect all employees — not only its own — from OSHA violations.1

In a recent appellate decision, Solis v. Summit Contractors, Inc., the U.S. Court of Appeals for the Eighth Circuit held that the applicable regulation permits employers to be cited, even where their own employees are not exposed to the subject hazards.

In Summit Contractors the GC on a dormitory project subbed out virtually all of the work and had only a project superintendent and three assistants onsite.

On two or three occasions, Summit’s project superintendent observed employees of its exterior brick subcontractor, All Phase, working without personal fall protection on scaffolds lacking guardrails.  Although Summit’s super cautioned All Phase to correct these problems, upon moving the scaffold to another location, All Phase’s men again worked without fall protection and guardrails.

OSHA cited Summit under OSHA’s  “controlling employer” citation policy, despite the fact that none of Summit’s own employees were exposed to any hazard created by the scaffold violation.

Summit argued at trial that 29 C.F.R. § 1912(a) places a duty on employers to protect only their own employees — not those of any subcontractor.  The Administrative Law Judge rejected this argument, and upheld the citation.

The OSH Review Commission granted Summit’s petition for review, and held, by a 2-1 margin, that as Summit had argued  1910.12(a) only that each employer protect its own employees.  The Commission therefore vacated the citation against Summit, but the Secretary petitioned for further review by the Eighth Circuit Court of Appeals.  

Section 1910.12(a), which dates back to OSHA’s inception in 1971, provides:

The standards prescribed in part 1926 of this chapter [the construction industry standards] 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.

The Secretary’s initial multi-employer worksite policy, as indicated in OSHA’s initial Field Operations Manual (1971) adopted the “creating” and “exposing” employer citation policies, but not the “controlling” employer policy.  Thus, in OSHA’s early days, OSHA considered itself as having authority to cite general contractors only for hazards to which its own employees were exposed (plus any it had itself created).  In the early 1970s, the OSH Review Commission likewise construed the policy in the same, narrow fashion.

Indeed, for a brief period during the mid 1970s, the Secretary was engaged in making its policy even narrower, at the same time that some courts were heading in the opposite direction.  Two Courts of Appeals, including our Second Circuit2 in the Brennan case, expressed the view that 29 U.S.C. § 654(a)(2) — which requires “each employer” to “comply with occupational safety and health standards promulgated under this chapter” — is not limited to “situations where a violation of a standard is liked to exposure of his employees to the hazard.”

At about the same time, the Secretary temporarily altered the OSHA Field Manual to limit citations only to the “exposing employer.”  In light of the cases, however, favoring a more expansive policy, in 1976 the Secretary reversed its view, essentially viewing the policy to have been judicially expanded.

Over the years since 1976, most employer challenges to the broader “controlling employer” rule have not succeeded, although one circuit, the Fifth, has doggedly held to the contrary.  In 1995 (as the recentSummit Contractors decision noted) a decision by the District of Columbia Circuit remarked in passing that the current multi-employer worksite doctrine is in “marked tension” with 29 C.F.R. § 1910.12(a).

In Summit Contractors, the majority of the Eighth Circuit panel read the language of § 1910.12(a)(2) (concerning the employer’s duty to protect the “places of employment of each of his employees”) as permitting the Secretary to cite “controlling” employers.  It found that “the plain language of part (2) does not preclude an employer’s duty to protect . . . others who work at the place of employment, so long as the employer also has employees [there].”

While the majority took the view that § 1910.12(a)(2) “unambiguously” supports the Secretary’s view and the “controlling employer” policy, it stated further that even assuming the provision to be ambiguous, the courts must defer to any reasonable interpretation construction by the agency (even if “not be the best or most natural one by grammatical or other standards”).

The dissenting judge argued that § 1910.12(a) is unambiguously contrary to the construction adopted by the majority, and that it yields an unworkable result, as even the most sophisticated general contractor cannot  be expected to recognize violations of the intricate requirements affecting the trades of specialized subcontractors. 

Obviously, a general contractor detecting a serious OSHA violation by a subcontractor should act to correct it, whether its own forces are exposed or not.  Worker safety is more important than the precise boundary between employers’ responsibilities under OSHA (not to mention that negligence law imposes on a general contractor, in most states, a duty to abate worksite hazards where it has authority to do so).

Nevertheless, we should hope that Summit Contractors or a similar case soon makes its way to the U.S. Supreme Court.  The dissent, I believe, correctly argues that the majority’s interpretation of § 1910.12(a)(2) rests upon a “puzzling and unsupported extension of regulatory intent” and that it is impractical and unjust to impose on general contractors full mastery of the detailed requirements affecting all of the subcontractors’ trades.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

The liability discussed in this article (and the OSHA cases mentioned) is only exposure to being cited by OSHA for violations of the Act (not liability for civil damages for personal injury or wrongful death).tort claims for personal injury or wrong.

The Second Circuit embraces New York, Connecticut, and Vermont.

A further difficulty with the majority’s interpretation is that, by the logic of its grammatical analysis, there is no basis to restrict the extension of the duty to protect the workplace to employers effectively having the authority to do so.

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