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OSHA Policy on Subcontractor Workers Challenged
Builders challenging an Occupational Safety and Health Administration (OSHA) policy that holds them responsible for ensuring the job-site safety of workers employed by subcontractors presented their case on Oct. 13 before the OSHA Commission, which rules on the validity of the agency’s citations.
Because of the importance of this issue to the home building industry, an amicus brief in Secretary of Labor v. Summit Contractors, Inc. was filed in March by NAHB, the Texas Association of Builders, the Contractors’ Association of Greater New York and the Greater Houston Builders Association. In this case, the company was cited for failing to ensure that employees of a masonry subcontractor used adequate fall protection while working on scaffolds during the construction of an Arkansas college dormitory.
This was the first time in nine years that the commission agreed to hear an oral argument in a case, said Arthur G. Sapper of McDermott Will & Emery LLP, the Washington law firm that submitted the friend-of-the-court brief on behalf of the builder associations.
The builders contended that the commission should dismiss OSHA’s citation because a contractor’s responsibility extends only to its own employees, and the multi-employer liability that OSHA said should govern the facts in this case is limited. The contractor should only be liable if its own actions create unsafe conditions, not when its subcontractors create them. “Each employer is responsible for the working conditions of his own employees,” the brief said.
NAHB’s argument, based on its reading of the law, is that OSHA generally has no statutory or regulatory authority to issue citations and levy fines against one employer for violations committed by another.
Otherwise, Sapper said, the builder would have to constantly, and personally, police the actions of subcontractors whenever they do work. “You’d have to have someone on site at all times, and as a practical matter, builders don’t have the workforce for that,” he said.
Sapper told the commission that extending the contractor’s responsibility would require a new rulemaking by the agency, subject to public hearing and comment, and that a reading of the original statute indicates that such responsibility was never the intent when it was promulgated more than 30 years ago.
Commissioners are expected to release their decision by April 27, 2007.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
 Protect Your Workers and Your Profits
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To view or purchase this DVD online, click here, or call 800-223-2665.
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