Multi-employer worksites are extremely common in the construction industry, but they can still make work extremely complicated. One of those complications results when a subcontractor receives a governmental violation, such as an OSHA violation. As a controlling employer on the site, can a general contractor be held responsible for safety hazards of a subcontractor? One court says yes.
A late 2018 ruling in the U.S. Court of Appeals for the 5th Circuit ruled that a violation given to Hensel Phelps Construction, a General Contractor, is valid, even though none of the form’s employees were directly affected by the cited safety hazard. The appeal overturns a previous court ruling from 2017, which stated that OSHA could not cite an employer such as Phelps. Phelps was cited for 1 willful violation, totaling $70,000 in fines, after the Austin, Texas area OSHA office received a complaint of hazardous working conditions, according to Safety and Health Magazine.
The citation explains that “four (4) workers were installing rebar during intermittent rain in an unprotected excavation approximately twelve feet and six inches (12'6") deep by one hundred and fifty feet (150') long, exposing the workers to a cave-in hazard. “ The workers subjected to the hazard were employed by a subcontractor hired by one of Hensel Phelps’ subcontractors.
OSHA’s Multi-Employer Worksite Policy was cited as the reason for issuing the citation to Hensel Phelps. In that policy, a “creating employer” is defined as “the employer that caused a hazardous condition that violates an OSHA standard” and explains that “employers must not create violative conditions. An employer that does so is citable even if the only employees exposed are those of other employers at the site.” That policy went into effect in 1999.
According to the court records, both a City of Austin inspector and a Hensel Phelps’ superintendent instructed the owner of the CVI Development, LLC [directly contracted by Haynes Eaglin Watters, LLC (HEW), who directly contracted by Hensel Phelps] to redirect his employees back to the excavation site to finish the work in that area. The owner of CVI emailed a Senior Project Manager at HEW explaining that “[P]lacing rebar in the mud and rain is unorthodox and very dangerous,” but was again instructed to move the employees back to the area.
CVI received 2 violations from the incident: 1 serious and 1 willful, totaling $18,000. The serious violation was for allowing workers in an excavation below the level of the base or footing of a foundation or retaining wall and for the competent person on site not removing the employees from a hazardous area. The willful violation was for not providing adequate protection from cave-in.
The 5th Circuit governs only Louisiana, Texas, and Mississippi. It’s my understanding that lower federal courts in the same district must abide by the rulings of their circuit’s appellate court. While this decision will not immediately and directly affect other areas of the country, this decision can set a precedent for other courts to rule in the same fashion in the future.
Back in 2017
Full story: Appeals court rules contractors can be cited for hazardous conditions at multi-employer worksites | Safety and Health Magazine