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 in Holland & Hart LLP's Construction and Real
Estate Litigation Group.
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