After 30 years of upholding the right of the Occupational Safety and Health Administration ("OSHA") to cite the controlling employer of a worksite under the "multi-employer worksite doctrine," the Occupational Safety and Health Review Commission ("Commission") decided to rid itself of the inherent ambiguity and indecisiveness of the long standing doctrine. For years, OSHA has alleged that a controlling employer at a worksite had a duty to ensure that other employers at the worksite complied with OSHA standards. As a result, the controlling employer was cited for violations of the standards because of hazards created by other employers on the jobsite even if the controlling employer did not expose his own employees to the hazard.

On April 27, 2007, the Commission ruled in Summit Contractors, Inc., OSHRC Docket No. 031622 (2007), that under 29 C.F.R. 1910.12(a), OSHA could not hold a controlling employer performing construction work responsible for failing to ensure other employers on the jobsite complied with OSHA standards. Basically, 29 C.F.R. 1910.12(a) states:

Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.

In this case, Summit Contractors ("Summit") had been hired as the prime general contractor for the construction of a college dormitory in Little Rock, Arkansas. Summit subcontracted the exterior masonry work out to All Phase Construction, Inc. ("All Phase").

During a visit at the jobsite by an OSHA Compliance Officer, the Officer observed All Phase employees working on scaffolding without the required fall protection. No Summit employees were exposed to or created the hazardous condition. Consequently, OSHA issued a citation to Summit, the controlling contractor, for the hazard created by the All Phase employees under the "multi-employer worksite doctrine." OSHA issued the citation alleging a violation of 29 C.F.R. 1926.451(g)(1)(vii), which pertains to construction safety standard for fall protection when using scaffolding. All Phase was also cited under the same standard as the employer who created and exposed the employees to the hazard.

On January 27, 2004, a hearing was held before Administrative Law Judge Ken S. Welsch ("ALJ"), in Little Rock, Arkansas. The ALJ rejected Summit’s arguments and ruled in favor of the Secretary of Labor. Summit appealed the decision to the Commission. The Commission reversed the ALJ’s decision and ruled in favor of Summit.

On review, the Review Commission essentially agreed with Summit’s argument that the "multi-employer worksite doctrine," which is mandated in OSHA Directive CPL 2-0.124, is not enforceable because it is contrary to OSHA standard 29 C.F.R. 1910.12(a). OSHA standard 1910.12(a), in part, states that “[e]ach employer shall protect the employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph.” Accordingly, the Commission ruled, after berating the Secretary for sitting on her hands for many years regarding this issue, that the Commission has a duty to follow the plain language of 29 C.F.R. 1910.12(a), which mandates that "each employer engaged in construction work is responsible for his employees"(emphasis added).

The Commission’s decision appears to have settled the dispute over the interpretation and ambiguity of the "multi-employer worksite doctrine." However, the jury may still be out on this issue for two reasons. First, OSHA has filed a petition with the Eighth Circuit to appeal the Review Commission’s decision; and Second, the Commission could overrule itself in another matter regarding the same issue, which is a distinct possibility.

Consequently, the impact of this decision remains to be seen. If this decision stands, the primary general contractor's liability related to workplace injuries by the employees of other employers on the jobsite will be greatly limited.