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Subs Responsible for Job Site Safety of Their Workers
The Occupational Safety and Health Review Commission has done away with its so-called “controlling employer” doctrine and decided that the safety and health of subcontractors’ employees on a job site is the responsibility of the actual employer, not the general contractor that hires the subs.
The commission’s decision in Secretary of Labor v. Summit Contractors was handed down last week.
The decision clearly relied on the principal arguments made in NAHB’s friend-of-the-court brief, even citing the association’s oral argument in October 2006, said attorney Arthur G. Sapper of McDermott Will & Emery LLP, the firm retained by NAHB to argue the case.
The Occupational Safety and Health Administration had cited Summit, as the general contractor for the construction of a college dormitory in Little Rock, Ark., for failing to ensure that employees of a masonry subcontractor at the site used fall protection devices, even though they were working on scaffolds more than 12 feet high.
OSHA cited Summit under its “multi-employer citation policy,” saying Summit “controlled” the work site and therefore had a duty to detect violations by subs and compel them to correct violations.
Summit challenged the citation and the legality of OSHA’s multi-employer policy, but the OSHA administrative law judge who took the case held that Summit was responsible for ensuring compliance by a subcontractor.
Summit successfully petitioned the OSHA commission to review the decision, arguing that:
- Neither the OSHA law nor any validly promulgated regulation imposes a duty on one employer to ensure that some other, separate employer complies with OSHA.
- There is no statutory or regulatory authority for OSHA to issue citations and levy fines against one employer for violations committed by another employer.
- OSHA, therefore, had no legal authority to cite Summit on the theory that Summit should have ensured that the masonry subcontractor complied with the OSHA regulations.
NAHB joined the Texas Association of Builders and the Greater Houston Builders Association in filing an amicus brief in 2005.
“We are very proud of our relationship with the federal Occupational Safety and Health Administration and work closely with them to develop educational programs for all construction workers, especially around the issues of fall protection and general safety hazards,” said NAHB Executive Vice President Jerry Howard, hailing last week’s decision. “It is in that spirit that we are pleased with the commission’s decision.”
“OSHA’s multi-employer citation policy is bad public policy because it imposes undue and unpredictable burdens on home builders and creates confusion at the work site over who is responsible for the safety of workers,” Howard said. “Therefore, it actually jeopardizes work-site safety. That’s not fair to the men and women who build our nation’s houses,” he continued.
“We encourage OSHA to resolve any further questions on this issue in a public rulemaking, and will work with the agency in any rulemaking to ensure the adoption of fair and equitable rules. When employers take responsibility for their employees, worker safety is enhanced. The commission’s decision sets everyone straight and I applaud it,” Howard said.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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