OSHA’s Multi-Employer Citation Policy Upheld

Earlier this month, the D.C. Circuit Court upheld the Occupational Safety and Health Administration’s (“OSHA”) Multi-Employer Citation Policy (the “Policy”) finding an employer could be cited for safety violations even when none of its own employees were exposed to the hazard.

Summit Contractors, Inc. (“Summit”) challenged the Policy after OSHA cited Summit for providing equipment that did not have the required ground fault circuit interrupters.  While Summit was the general contractor at the worksite, subcontractors completed the electrical work and installed the equipment.

Summit’s challenge was unsuccessful.  An administrative law judge (“ALJ”) as well as the Occupational Safety and Health Review Commission (the “Commission”) affirmed the citation on the grounds that Summit was the “controlling employer” because it had authority over the worksite and the electrical equipment and it was the “creating employer” because it had supplied the noncompliant equipment. 

In its appeal of the Commission ruling, Summit raised three issues: i) the Policy violates the Administrative Procedure Act because it was not subjected to notice and comment rulemaking; ii) multi-employer liability violates Section 4(b)(4) of the Occupational Safety and Health Act (the “OSH Act”) because it could give rise to a common law duty of care imposed on general contractors; and iii) OSHA failed to prove that Summit had knowledge of the violation as required under the OSH Act.

In a per curiam opinion, the D.C. Circuit court rejected all three arguments.  The court found that the Policy is exempt from the notice and comment rulemaking requirements and that a common law duty of care would arise from an action in state court only, not from the OSH Act.

The court also disagreed with Summit’s assertion that OSHA failed to prove the requisite knowledge.  The court found substantial evidence supported the Commission’s finding that, through the “exercise of reasonable diligence,” Summit could have known of the noncompliant equipment.  In particular, the court noted that Summit ordered the equipment and failed to inspect it.

For employers, especially general contractors, this case highlights the importance of clear communication with suppliers and subcontractors as well as effective inspection procedures.  A failure in communication or inadequate inspection procedures can result in a general contractor’s violation of OSHA safety standards and costly citations, even if none of its employees are at the work location.

For more information, please contact LaVonne Pulliam at lpulliam@beneschlaw.com or (216) 363-4507.

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