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Eighth Circuit Renews OSHA’s Authority to Issue Multi-Employer Citations in the Construction Industry

As outlined in this Morgan Lewis Labor and Employment Lawflash, dated March 2, 2009, the United States Court of Appeals for the Eighth Circuit decided in favor of the Occupational Safety and Health Review Commission’s original decision related to the case Secretary of Labor v. Summit Contractors, Inc. (No. 03-1622, 4/27/07). This favorable decision apparently renews and expands upon OSHA’s “authority to issue citations to general contractors for violations” of U.S. construction standards which according to the American Society for Testing and Materials (ASTM) often includes standards concerning the proper use and application of building adhesives, cement, masonry, roofing materials, thermal insulation, and especially plywood and other types of lumber (Construction Standards, 2013).

It would appear that this decision by the Eighth Circuit court which handles cases in states like Missouri, Arkansas, Iowa, and North and South Dakota, has not been well-received by construction contracting companies within the court’s jurisdiction. This is understandable, considering that the decision is “likely to increase OSHA enforcement on all multi-employer worksites” via its Multi-Employee Citation Policy which dates back to 1971 as part of OSHA’s Field Inspection Reference Manual. A portion of this citation policy explicitly states that OSHA can cite an employer “for a safety hazard even if none of that employer’s employees were exposed to the hazard,” providing that the employer or contractor “created the hazard, controlled the worksite, and/or had the authority to correct the hazard” (Eighth Circuit Renews OSHA’s Authority, 2009, p. 1).

The citation issued by OSHA in this case concerns some scaffolding that was being used by masonry subcontractors for a job in Little Rock, Arkansas, under the supervision of Summit Contractors, Inc. While on the worksite, OSHA representatives “conducted an inspection and found additional scaffolding violations” and then proceeded to cite the subcontractor and the project’s general contractor for Summit for the scaffolding violations. Incidentally, part of this scaffolding was constructed of plywood which falls under ASTM’s standards related to the proper use of building materials on-site. OSHA issued this citation due to feeling that Summit was the “controlling employee” despite the fact that the scaffolding was constructed by the subcontractor. Therefore, Summit insisted that it had not created the violations and that “neither its employees nor any other company employees were exposed to the hazard” which prompted the citation by OSHA (Eighth Circuit Renews OSHA’s Authority, 2009, p. 2).

Legally speaking, the Eighth Circuit Court of Appeals, after examining what it refers to as the “plain language of section 1910.12(a)” as found in OSHA’s Multi-Employee Citation Policy, “does not preclude the OSHA’s policy to issue citations to controlling employers whose employees were not exposed” to the scaffolding. The court also found that two regulations were of prime importance to this case–1), that an “employer shall protect the employment of each of his employees, and (2) that an employer shall protect the places of employment of each of his employees” (Eighth Circuit Renews OSHA’s Authority, 2009, p. 2). Apparently, it was also the responsibility of the employer (i.e., Summit Contractors, Inc.) to protect all those who worked at the job in Little Rock.

In summation, the outcome of this case makes it clear that OSHA will continue to vigorously issue citations to contractors and well as subcontractors when violations are identified at worksites. Also, “all employers should consider reviewing their interaction with other employers on their worksites,” even when a violation like the scaffolding was not created by the contractor for Summit Contractors, Inc. (Eighth Circuit Renews OSHA’s Authority, 2009, p. 3).

References

Construction standards. (2013). American Society for Testing and Materials. Retrieved from http://www.astm.org/Standards/construction-standards.html

Eighth circuit renews OSHA’s authority to issue multi-employer citations in the   construction industry. (March 2, 2009). Morgan Lewis Labor and Employment Lawflash. 1-3.