Moves begin to tighten OSHA enforcement

Employers will no longer be able to assume that their subcontractors will have total responsibility for the safety of their employees under a recent federal appeals court ruling.

Some owners, general contractors and construction managers have been writing into contracts with their subcontractors that the subs are totally responsible for the health and safety of their own employees while performing the subcontracted work. In some cases, the contracts have simply assumed that subs would take on the total responsibility for the safety of their employees.

But a recent decision from the 8th U.S. Circuit Court of Appeals, which is based in St. Louis, said that an employer can no longer avoid OSHA liability simply by subcontracting work to another entity.

If the employer -- for example a general contractor on a construction site -- maintains some degree of safety control over the worksite then that company is called a "controlling employer." As a controller employer, the company can be held responsible by OSHA for hazardous conditions on the site, even if they did not directly create them or expose their employees to the conditions, according to Jim Stanley, President of FDRsafety and the former Deputy Assistant Secretary of Labor for OSHA.

Stanley advises controlling employers to make sure that they understand their OSHA rights and responsibilities on the worksite and that all subcontractors are following applicable OSHA rules and regulations.

According to Mark A. Lies IIand Elizabeth Leifel Ash, attorneys with Seyfarth Shaw LLP of Chicago, the decision means "OSHA will undoubtedly increase its focus on work sites, particularly construction sites, where it can cite multiple employers for a single safety or health violation. This decision also increases the potential for criminal liability for multiple employers where an employee is killed at the work site."

"The decision also opens the door for OSHA to use its multi-employer worksite policy in its inspections beyond the construction industry, from manufacturers who subcontract out maintenance work, for example, to office property managers who subcontract out window cleaning and who maintain any level of control over the 'means and methods' by which the subcontractor performs the actual work," the lawyers wrote.

The multi-employer worksite policy also says that a company that is not considered a controlling employer can be held responsible for an unsafe condition it created even if its employee was not involved in an ensuing accident.

The appeals court ruling grew out of a case called Solis v. Summit Contractors, Inc.

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