A New Paradigm at OSHA

Little-Noticed Ruling Means General Contractors Less Likely to Pay for Mistakes of Unsafe Subs

by Joseph P. Paranac, Jr.

The rash of deadly construction accidents in New York this year, including two crane collapses that killed a total of nine people in Manhattan, has focused national attention on the critical responsibility of subcontractors to maintain workplace safety.

Joseph P. Paranac, Jr.

General contractors have taken the legal hit for hazards and accidents caused by subs for more than 30 years under the so-called multiemployer citation policy of the U.S. Occupational Safety and Health Administration (OSHA). Last year, however, a little-noticed, yet far-reaching ruling by the OSHA Review Commission -- Summit Contractors, Inc. -- overruled this longstanding policy, under which GC’s frequently were held jointly responsible (often unfairly, and at great cost to their reputations) for hazards created by their subs.

The April 2007 ruling came after OSHA cited Summit, the GC, for failing to make sure a masonry subcontractor was using fall protection for its employees working on scaffolds at a college dormitory under construction in Little Rock, Ark. Even though the sub’s fall protection violations were in plain view of Summit’s superintendents, Summit used the citation as an opportunity to challenge the multiemployer workplace doctrine—and, perhaps, surprisingly, won. With the ruling, the Review Commission signaled that it likely will no longer cite GC’s for violations committed by their subs, so long as the GC neither created the hazard in question nor had its own employees exposed to the hazard.

While this ruling is certainly good news for GC’s, its long-range impact is not yet clear for a number of reasons.

For one thing, the ruling was a split 2-1 decision, with the two Bush-appointed Commissioners voting to overrule the multiemployer workplace doctrine and the Clinton appointee dissenting. With the Presidential election looming, the composition -- and political leaning -- of the Review Commission may change. So, the Summit ruling could well be short-lived.

Additionally, the government appealed the ruling to the Federal Court of Appeals in St. Louis in May 2007. The Court has still not issued a decision, suggesting that Courts may not be so eager to reverse a 30-year-old safety policy and free GC’s from liability for hazards created by their subs.

Finally, on many construction sites, the GC is contractually responsible for general job safety or specific safety items like perimeter protection. What effect, if any, the Summit decision will have on GC’s with contractual safety obligations remains to be seen.

Still, GC’s should take specific steps to make sure that OSHA’s current approach to GC liability works in their favor. Whatever their legal responsibility for the behavior of their subcontractors, GC’s clearly should continue to notify subcontractors of any workplace safety hazards created by those subs. On-site superintendents who spot, say, unsafe scaffolding or uncovered floor holes should immediately warn the responsible sub in writing to ensure that the hazard is abated.

And GC’s, of course, still have every obligation to protect their own employees. Thus, they should take pains to make sure their employees are not exposed to hazards created by on-site subs. Gray areas in how the ruling will be interpreted, however, stand to make this a tricky proposition. If, for example, the GC’s safety inspector notices floor holes, advises the sub to cover them and then conducts daily inspections to make sure the sub has complied, that safety inspector may well be exposed to fall hazards. In that case, even under Summit, the GC can be issued a citation by OSHA.

If it sticks, the Review Commission’s ruling in the Summit case will likely translate into fewer OSHA citations for GC’s. If it does, that clearly is good news for the construction industry. After all, the notoriety created by OSHA citations—even if those citations later are vacated upon appeal—can dog GC’s throughout their careers. And there is no shortage of big-time personal injury attorneys expert in using such citations to stand before a jury and conjure the image of an unsafe employer. Preventing these costly violations from ever happening in the first place should continue to be a top priority for smart GC’s. Fortunately, the Summit ruling just made doing so a little bit easier.

Veteran occupational safety and health defense attorney Joseph P. Paranac, Jr., who regularly represents construction contractors in catastrophic accidents, is a member of LeClairRyan’s Labor and Employment Group, based in Newark, N.J. He may be reached at Joseph.Paranac@leclairryan.com.