GENERAL CONTRACTORS MAY BE LIABLE
FOR SUBCONTRACTORS’ OSHA VIOLATIONS
By Kevin Bridston
This summer, the United States
Court of Appeals for the Tenth Circuit (covering Colorado, Kansas, New Mexico,
Oklahoma, Utah and Wyoming) held that a general contractor may, under certain
circumstances, be held liable for OSHA violations of a subcontractor. In Universal Construction Company v. OSHA,
182 F.3d 726 (10th Cir. 1999), the Tenth Circuit Court of Appeals
approved the imposition of OSHA penalties against the contractor, based on a
subcontractor’s violation of construction safety standards, under the
“multi-employer work site” doctrine.
The multi-employer doctrine provides that an employer who controls or
creates a work site safety hazard may be liable under OSHA, even if the
employees threatened by the hazard are solely employees of another
employer. The doctrine came about
primarily in the construction industry because construction projects often
involve multiple employers, including subcontractors, working in the same
general area where hazards created by one employer may pose danger to employees
of other employers.
In the Universal case, the
contractor was cited for a subcontractor’s employee’s failure to wear and
attach a safety belt to an aerial lift basket and for that employee
subsequently climbing out of the lift basket onto a building roof. The contractor’s field manager and foreman
were at the job site and in a position to observe the violations. Moreover, they had authority to correct the
hazards or to direct the subcontractor’s foreman to correct the hazards, but
failed to do so. There was no dispute
that only the subcontractor’s employees created the hazards for which the fines
were assessed against the contractor.
The decision does not come as a
particular surprise, as five of the eleven federal circuits previously adopted
the multi-employer doctrine, and only the Seventh Circuit has rejected it. The Tenth Circuit held that 29 U.S.C. §
654(a)(2), which requires an employer to “comply with occupational safety and
health standards promulgated under this chapter,” is ambiguous as to its intent
(specifically, whether it encompasses the multi-employer doctrine). Because the court concluded the intent was
ambiguous, it deferred to the Occupational Safety and Health Administration’s
interpretation of the statute. In doing
so, the court noted that the Agency’s interpretation of the statute “furthers
than rather frustrates the policy of the underlying Act. The Act was designed ‘to assure so far as
possible’ every working man and woman in the nation safe and healthful working
conditions.’ . . . To achieve this end, Congress focused
primarily on ‘making places of employment, rather than specific employees, safe
from work related hazards.’”
From a practical standpoint, the Universal
decision does not necessarily mean big changes are in order the general
contractors. It does mean that general
contractors must apply common sense to dealing with work site hazards. Obviously, general contractors should take
steps to eliminate and reduce job site hazards, including implementing
reasonable steps to observe and identify such hazards. If a general contractor notices a job site
hazard, it further should take reasonable steps to alleviate the hazard,
regardless of whose employees created the risk or whose employees are
threatened by the risk.
Indeed, there is room under the Universal
decision for a subcontractor in certain circumstances to be held liable for
another subcontractor’s OHSA violations, at least where the first
subcontractor’s employees are threatened by the hazard. Where rules of craft jurisdiction limit a
subcontractor’s ability to abate hazards created by another subcontractor, at
the very least the subcontractor can and should ask the general contractor to
correct or direct correction of the condition.
The bottom line is that on a
construction site, a contractor may indeed be his brother’s keeper, at least
for purposes of complying with OSHA.
Clearly, a contractor cannot simply turn a blind eye to subcontractors’
OSHA violations, at least not without running the risk of substantial OSHA
penalties. For this reason, if no
other, a contractor should consider the Universal decision in drafting
its subcontracts, and include appropriate provisions with respect to safety and
indemnification. This doctrine may also
have ramifications with respect to a contractor’s liability to a
subcontractor’s employees for personal injury.
Kevin Bridston is a partner at Holland & Hart LLP and manager
of Holland & Hart’s Construction and Real Estate Litigation Group.
DENVER:0945545.01
