The Occupational Safety and Health Administration’s (“OSHA”) enforcement scheme has long included a formal policy called the “multiemployer worksite citation policy.” Under this policy, OSHA may issue citations to a general contractor for hazardous conditions at a construction site created by its subcontractors, so long as the general contractor had sufficient supervisory control over the site to prevent or abate the violation. The general contractor may be cited under this policy even if it did not create the hazard, and even if its own employees were never exposed to the hazard. In recent years, general contractors cited for their subcontractors’ OSHA violations have mounted a number of court challenges to the multi-employer worksite citation policy. Those challenges have generally not been successful.

The latest such case to reach the federal courts of appeal resulted in an affirmance of the policy by the District of Columbia Circuit Court of Appeals. In that case, Summit Contractors, Inc. v. Secretary of Labor, Summit was the general contractor on an apartment building project. Summit had only two employees on the project site, a superintendent and an assistant superintendent; Summit did not directly provide any labor on the site. Summit hired a subcontractor to perform framing work for the project.

The subcontract for the framing work provided that the subcontractor was solely responsible for compliance with all laws and regulations, specifically including all OSHA requirements. It also stated that Summit may (but was not required to) provide temporary electrical service for the project.

Summit’s superintendent arranged for rental of a generator and a “spider box” for electric tools. The superintendent did not check this equipment to ensure that it was equipped with the required ground fault circuit interrupters (“GFCIs”), since similar equipment previously rented from the rental company had included GFCIs. An OSHA inspection revealed the lack of GFCIs, and OSHA cited both the framing subcontractor and Summit for this violation, even though no Summit employees were exposed to the cited hazard. The citation was based on Summit’s role as both a “creating employer” (since it provided the deficient equipment) and a “controlling employer” (since it had general supervisory control of the worksite).

On appeal, the Administrative Law Judge – and later the Occupational Safety and Health Review Commission (“OSHRC”) and the court of appeals – rejected Summit’s defense that the OSHA regulations only protect an employer’s own employees. The judge, the OSHRC, and the court based their findings that Summit was a “controlling employer” on broad provisions in the contract documents, allowing Summit to supervise and schedule the work, approve and reject sub-subcontractors, and backcharge subcontractors for failure to comply with their contract requirements. Summit was not permitted to avoid liability as a controlling employer on the basis of the subcontract provisions shifting responsibility for compliance with OSHA requirements to the subcontractor.

Summit also argued that it could not be held responsible because it did not have actual knowledge that the equipment lacked GFCIs. However, the court held that a contractor can be held liable under the multi-employer worksite policy if it either actually knew or “with the exercise of reasonable diligence could have known” of the violation.

The primary lessons to be drawn from the Summit case and other recent cases upholding the multiemployer worksite doctrine are:

1. The doctrine is currently being interpreted broadly to impose responsibility on general contractors for OSHA violations on project sites; the contract provisions relied on by OSHA and the courts in Summit are typical provisions found in contracts throughout the industry. General contractors will generally be held responsible for OSHA violations on their work sites, even if the violations were not created by them, and even if their own employees were not in harm’s way.
2. Subcontract provisions shifting responsibility for OSHA compliance to subcontractors will not be enough to shield general contractors from liability, even where the hazardous condition was caused by the subcontractor
3. The doctrine will be applied regardless of whether the general contractor had actual knowledge of the violation, so long as it could have known of the condition with the exercise of reasonable diligence. It appears that this rule, too, will be interpreted broadly.

The Second Circuit, which covers New York and part of New England, has previously upheld the OSHA multi-employer worksite doctrine, although it has not ruled on the issue recently. The First Circuit, which covers the rest of New England, has not yet directly addressed the legality of the doctrine. In light of the recent trend in the case law, general contractors will need to tread carefully when it comes to OSHA compliance, and will need to diligently monitor their worksites for violations, no matter who caused them.