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OSHA Appeals Ruling Against ‘Multi-Employer’ Citations
The Secretary of Labor has appealed a decision by the Occupational Safety and Health Review Commission to bar citations against home builders for health and safety violations created by their subcontractors.
The commission's ruling, which applies to all general contractors, was announced April 27 in Secretary of Labor v. Summit Contractors. OSHA appealed the decision earlier this month.
The OSHA appeal is the latest in what is expected to be a long, detailed process as the industry and the agency attempt to clarify the limits of the responsibility of the general contractor on the job site. Even before the appeal was filed, NAHB legal experts were advising home builders to exercise their usual caution and good judgment regarding the safety of all workers and visitors on their sites.
“The decision is binding on the Occupational Health and Safety Review Commission; accordingly, any enforcement action that ultimately ends up before the commission will be governed by this decision, unless and until it is overturned,” said NAHB attorney David Jaffe. “However, it is not binding on OSHA, and it might not impact how OSHA representatives operate in the field.”
OSHA had cited Summit for failing to ensure that employees of a masonry subcontractor on a college dorm building site used fall protection devices while working on scaffolds more than 12 feet high.
OSHA invoked its “multi-employer citation policy” in the case on the theory that Summit “controlled” the job site and had a duty to detect violations by subs and also compel the subs to correct them.
Summit challenged the citation and the legality of OSHA’s multi-employer policy in an action for declaratory relief, was rejected and then petitioned the review commission. Summit said that neither the OSHA Act nor any other regulation makes employers liable for violations to which their own employees are not exposed, and that the agency therefore had no authority to issue citations and levy fines against the company.
NAHB joined the Texas Association of Builders and the Greater Houston Builders Association in filing an amicus brief in support of the petition two years ago.
Meanwhile, NAHB continues to work with OSHA on job safety programs, specifically concentrating on fall protection. This month, NAHB’s BuilderBooks.com released a new handbook in both English and Spanish that offers training for employers and their subcontractors.
The handbook shows home builders how to select and use the right ladder; protect stairways, leading edges, window and wall openings, and floor holes; provide protection from falling objects; and safely construct rafters and install roof trusses and sheathing.
“We continue to believe that OSHA’s multi-employer citation policy is bad public policy because it imposes undue and unpredictable burdens on home builders and makes questions of responsibility too confusing. It does not affirm the importance of workplace safety,” said NAHB CEO Jerry Howard.
“We offer these training programs and these books and videos because we are committed to the safety of our members and their employees. But OSHA needs to rein in this idea that the home builder can be held totally responsible for other business’s bad decision making.”
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
Protect Your Job Site Against OSHA Violations
Delays in construction due to poor safety procedures will cost you money. To protect your job site against OSHA violations go to www.builderbooks.com/Safety to see all the BuilderBooks.com resources you need to create a safety program that protects your workers and your profits.
Bulk prices are available.
To view these safety publications online, click here, or call 800-223-2665.
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