Federal OSHA - Multi-Employer Work Sites.

The Federal Occupational Safety and Health Commission has issued the long anticipated decision in the Summit Contractors case. At issue was the Federal OSHA’s application of the multi-employer worksite citation policy. The essential facts in the case were as follows:

- Summit is a general building contractor.
- Summit had 4 employees (1 Supervisor; 3 Asst. Supers) on the site in question.
- They were responsible for coordination; scheduling; work quality.
- Summit subcontracted the exterior brick masonry work to a subcontractor.
- An OSHA Safety Compliance Officer observed subcontractor employees working on scaffolds 12-18 feet above the ground without guardrails.
- Summit’s Supervisor previously observed the subcontractor’s employees working on scaffolds that lacked guardrails.
- Summit’s Supervisor instructed the subcontractor to install guardrails 2 or 3 times. Each time they would be installed but as the work moved the issue would reoccur.
- OSHA cited the subcontractor. More importantly OSHA cited Summit as the “controlling employer” under their multi-employer worksite policy.

The Commission found that the OSHA “checkered history” with the multi-employer doctrine was trumped by a specific regulation which provides that an employer’s compliance obligations only apply to the employer’s employees. The Commission HELD: OSHA was precluded from citing a general contractor when none of its employees were exposed to the hazard.

This case is a significant blow to Federal OSHA as well as State OSHA Programs. A further appeal is expected by OSHA.