New Orleans, LA – The U.S. Court of Appeals for the 5th Circuit has ruled that OSHA can issue citations to general contractors who fail to control hazardous conditions at multi-employer worksites, even if those conditions do not directly affect their own employees.
In its decision, the court states that the landscape has changed since the 5th Circuit ruled in 1981 that “OSHA regulations protect only an employer’s own employees” in Melerine v. Avondale Shipyards, Inc.
Brian Duncan, administrative law judge for OSHA’s Review Commission’s Denver regional office, used that decision as a precedent in April 2017 when he decided that Hensel Phelps Construction Co. could not be held liable for OSHA violations from one of its subcontractors.
The Department of Labor appealed that decision.
According to the 5th Circuit’s published decision, Phelps Construction’s subcontractor, Haynes Eaglin Watters, hired another company, CVI Development, for “demolition, excavation and other work” in 2014 at a library construction site in Austin, TX.
A CVI excavation project did not have a protective system (e.g., sloping), and a “nearly vertical wall” of soil was stacked about 12 feet high.
OSHA fined Phelps Construction $70,000 for one willful citation because it was the “controlling employer” under OSHA’s Multi-Employer Citation Policy, which went into effect in December 1999. “A controlling employer” is one that has “general supervisory authority” over a worksite, including the power to correct safety violations or compel others to correct them.
CVI was fined $18,000 for one serious and one willful violation.