April 6, 2009

In Solis v. Summit, Eighth Circuit Reverses OSHRC and Reinstates OSHA’s Multi-Employer Worksite Citation Policy

Holland & Knight Alert
Howard Sokol

In Solis v. Summit Contractors Inc., a divided U.S. Court of Appeals for the Eighth Circuit upheld OSHA’s practice of allowing its compliance officers to issue citations to general contractors for violations of OSHA’s standards in situations where hazardous work conditions are created by their subcontractors, even when the general contractor’s employees are not exposed to any health or safety violations.

Previously, a split Occupational Safety and Health Review Commission (OSHRC) held that 29 CFR § 1910.12(a) – which reads that “[e]ach employer shall protect the employment and places of employment of each of his employees engaged in construction work” – did not apply to an employer whose own employees were not exposed to the hazard, even though that employer was considered a “controlling employer” under the multi-employer worksite citation policy.

The Eighth Circuit held that OSHRC “abused its discretion in determining that the controlling employer citation policy conflicted with § 1910.12(a),” reasoning that the very language of the regulation naturally permitted an insistence by OSHA that an employer “protect the place of employment, including [the employees of others], so long as [that] employer also has employees at the place of employment.”

Summit had only four of its own employees on the construction site, none of whom were exposed to the violations at issue. In fact, on a few occasions Summit’s project superintendent had advised the subcontractor doing the work at issue to remedy the violation, but to no avail. A dissenting opinion focused heavily on the structure and grammar of § 1910.12(a), saying that the standard’s unambiguous language only required Summit to “protect the place of employment of Summit’s employees engaged in construction work for Summit (emphasis in original). Nothing more, nothing less.”

Summit’s Significance

The Summit decision effectively means that, in the seven states covered by the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota), a construction general contractor is a guarantor of an OHSA-violation-free worksite for all employees on the worksite, even employees of subcontractors. The general contractor will be liable for any subcontractor’s failure to follow specific OSHA standards, even if the general contractor did not create the hazard and its employees are not exposed to the hazard at issue.

The Eighth Circuit’s decision applies only with respect to work considered to be construction under OSHA, and only if the general contractor has employees on the site. It does not apply to non-construction employers who are controlling employers and whose own employees are not exposed to any hazardous condition. Also, the decision carries precedential weight only with respect to the seven states within the Eighth Circuit.

It remains to be seen whether OSHRC will defer to the Eighth Circuit’s ruling in future cases in the absence of any other court ruling consistent with this one, or keep to its original decision to see how it fares in other circuits. It also remains to be seen how, if at all, this decision will be applied to industries other than construction.

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