The U.S. Court of Appeals for the Eighth Circuit, in a 2-1 decision, ruled that in the case of Elaine Chao v. Summit Contractors, OSHA regulation 29 C.F.R. Sec. 1910.12(a) “is unambiguous in that it does not preclude OSHA from issuing citations to employers for violations when their own employees are not exposed to any hazards related to the violations.” Therefore, according to the ruling, the Occupational Safety and Health Review Commission (OSHRC) “abused its discretion in determining that the controlling employer citation policy conflicted with the regulation.”
This U.S. Court of Appeals ruling – that OSHA can issue citations to a "controlling" employer on a job site for violations even though that employer's workers are not exposed to any hazards related to the violations – could have significant impact on many employers across the country.
Here's a little history of the case: Summit Contractors Inc. was the general contractor for the construction of a college dormitory in Little Rock, Ark. Summit subcontracted the exterior brick masonry work to All Phase Construction Inc. In June 2003, an OSHA compliance officer observed All Phase employees working on scaffolds over 10 feet above the ground without fall protection or guardrails in violation of 29 C.F.R. § 1926.451(g)(1)(vii).
Although none of Summit’s employees were exposed to any hazard created by the scaffold violation, OSHA cited Summit for the violation based on the “controlling employer” aspect of OSHA’s multi-employer citation policy. The Court of Appeals ruling upholds OSHA's actions.
I have spoken to many safety managers over the years who claim that their employer requires contractors to adhere to safety policies that are just as strict as those of the employer. Many employees at those companies have told me in confidence that they have seen contractor employees working in an unsafe manner with no repercussions. With this ruling, that might change.
What do you think?