Reversing a commission decision that called into question one of the Occupational Safety and Health Administration’s (OSHA) most fundamental enforcement principles, the Eighth Circuit Court of Appeals ruled March 9, 2009, that general contractors can be held accountable for the safety performance of their subcontractors.

“The Commission’s decision was outrageous, and the Court was wise to overturn it,” says LIUNA General President Terence M. O’Sullivan. “A very big loophole in enforcement policy has now been closed.”

The case arose from an April 27, 2007, decision by the Occupational Safety and Health Review Commission (OSHRC), which hears appeals from employers that are cited by OSHA inspectors. Summit Contractors, Inc., a general contractor, was cited when a subcontractor failed to provide required fall protection for employees working on a scaffold that was more than 12 feet above the ground. Summit appealed, asserting that nothing in the law authorized OSHA to cite one employer for the failures of another, and the Commission ruled in its favor.

Filed in 1999, the Summit case called into question 24 years of OSHA practice and threatened to undermine a key enforcement principle known as the Multi-Employer policy. Because OSHA does not have adequate funding to inspect more than a small portion of the nation’s construction sites, its ability to pressure general contractors to ensure compliance by their subs is vital to maintaining broad safety performance in the industry.

The Court ruled that the plain language of 29 CFR 1910.12(a) requires each employer to protect the “places of employment of each of his employees.” The relevant boundary includes the places where employees work as well as the employees, themselves. Thus, a general contractor who is responsible for an entire construction project – and, therefore, has employees that monitor the entire place – is responsible for safety on the whole project.

“After years of retreat, it is time again for OSHA to refocus on a more active enforcement agenda,” says O’Sullivan. “This decision clears the way for strong steps in that direction.”

[Steve Clark]