OSHA Continues to Cite General Contractors for Subcontractors' Safety Violations

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

According to the Occupational Safety and Health Administration (OSHA), falls continue to be the top cause of employee deaths in the construction industry. Understandably, OSHA views fall protection as an enforcement priority. In recent years, federal and state OSHA investigators have shifted how they cite fall protection violations, especially in residential construction.

Under the OSHA statute, employers are generally responsible for the safety of their own employees. However, in circumstances where one employer exercises control over the safety of employees of other companies, it can also be cited for violations under the Multi-Employer Worksite doctrine. This doctrine is primarily used in the construction area to cite general contractors or project owners that coordinate multiple subcontractors on a given worksite.

Multi-Employer Worksite is not new, but in recent years, OSHA has been more aggressive about citing general contractors it believes have not taken adequate steps to monitor and police safety practices on their worksites, especially when it comes to fall protection. If the investigator sees the subcontractor’s employees working without adequate fall protection, there is a good chance that both the subcontractor and the general contractor will receive citations.

Why the Shift by OSHA?

In discussions with OSHA supervisors, they have expressed their difficulty enforcing fall protection and other requirements with framing, roofing, and other subcontractors that may regularly appear and disappear. By citing general contractors, OSHA is essentially attempting to force them to take a more active role in monitoring safety compliance on their worksites.

In the past, under Multi-Employer Worksite, general contractors were incentivized not to take a highly active role in policing subcontractor safety. By avoiding these responsibilities, the general contractor could claim that they never exercised the required level of control over the worksite and the subcontractor’s employees. However, in recent years, OSHA has frequently cited general contractors that do not have a well-documented safety inspection program in place. In addition, if the general contractor discovers safety compliance issues by its subcontractors, it must demonstrate that it actually enforces its rules, typically through a progressive system of fines and removal of the subcontractor from the worksite.

Focus on Safety at the General Contractor Level

If the general contractor can demonstrate a rigorous safety and enforcement program, the fact that a subcontractor or its employees ignored these rules should not serve as an adequate legal basis for an OSHA citation against it. Construction contractors cannot continuously monitor subcontractors’ safety practices, and if cited, the general contractor can challenge the legal basis for a citation claiming it is responsible for the violation.

As the pace of residential construction quickens, OSHA is likely to conduct more inspections and issue heavier fines, especially with regard to high risks like fall protection. Residential developers and general contractors should make their safety monitoring and enforcement programs a top risk management priority.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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