The U.S. Court of Appeals for the Eighth Circuit, in Solis v. Summit Contractors, Inc., recently upheld OSHA’s multi-employer worksite citation policy and found that the Occupational Safety and Health Review Commission (OSHRC) abused its discretion when it interpreted 29 C.F.R. § 1910.12(a) to be in conflict with the multi-employer worksite citation policy. Section 1910.12(a) states “[e]ach employer shall protect the employment and places of employment of each of his employees engaged in construction work….” OSHRC held that this provision did not apply to a general contractor if the general contractor’s own employees were not exposed to a found hazard, even if the general contractor was found to be a “controlling employer” under the multi-employer worksite policy.

The Eighth Circuit found OSHRC’s reasoning to be at odds with the language of the regulation in that the general contractor was required to “protect the place of employment, including [subcontractors’ employees], so long as [the general contractor] also has employees at the place of business.”

Summit, the general contractor, had only four of its own employees at the construction site, and none were exposed to the violations found by OSHA. Summit’s project superintendent had notified a subcontractor to remedy the violation at issue without success. In effect, the multi-employer citation policy makes the construction general contractor the guarantor of all construction work at a worksite when it has employees present, whether or not its employees are at fault or affected.