In a decision with significant implications for construction companies, the Eighth Circuit Court of Appeals in Secretary v. Summit Contractors affirmed OSHA's ability to issue citations to employers under the Multi-Employer Citation Policy, even when they did not create a worksite hazard and even when the employer's own employees are not exposed to the hazard.

The Multi-Employer Citation Policy provides that OSHA may cite employers on a multi-employer worksite even if that employer's employees were not exposed to the hazard, as long as the employer either: (1) created the hazard; (2) controlled the worksite; or (3) had the authority to correct the hazard. General contractors who "control" a worksite, therefore, technically may be cited for hazards created by sub-contractors where the general contractor did not create the hazard and the general contractor's employees were not exposed to the hazard. OSHA's enforcement efforts, however, have historically focused only on employers whose employees were actually exposed to a hazard. Indeed, controlling employers have enjoyed some degree of success contesting multi-employer citations by arguing that OSHA regulations only require employers to protect their own employees. The Summit decision is contrary to these trends.

In Summit, the court of appeals held that OSHA regulations require employers — including controlling employers — to protect all employees at the worksite so long as that employer also has employees at the worksite. While Summit is expected to appeal the decision to the United States Supreme Court, the decision may severely hamper efforts by employers to limit citations only to employers who expose their own employees to worksite hazards. Moreover, the Summit decision may result in increased enforcement efforts by OSHA, and a consequent increase in the number of citations issued to general contractors.

In response to this new potential exposure, employers in the construction industry should review and revise their agreements with sub-contractors, as well as their safety plans, to ensure they include the appropriate language regarding safety responsibility. Employers should also properly train field supervisors regarding worksite safety limits and responsibilities.