Since 1999, OSHA has taken the position that it can cite any employer who has general supervisory authority over a worksite, including those with power to correct or require correction of safety and health violations even if its own employees were not exposed to the hazard. In other words, if a contractor commits a violation a general contractor or site owner could also be cited for the violation even if none of the general contractor’s or site owner’s employees were exposed to the hazard. This rule has been applicable in the United States generally, with the exception of Texas, Louisiana and Mississippi. Since 1981, when the Fifth Circuit held that OSHA could only cite employers for violations involving their own employees, employers in the Fifth Circuit have been able to successfully challenge citations by showing that none of their employees were exposed to the hazardous condition.
Last Monday, in an opinion by a unanimous panel, the Fifth Circuit reversed that thirty-seven year old decision that prevented OSHA from enforcing its multi-employer citation policy against employers whose employees were not exposed to the hazard. The Court reasoned that OSHA’s policy was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., a Supreme Court case which was decided three years after the original Fifth Circuit decision.
While academics and Supreme Court watchers have wondered whether the Chevron doctrine will be reexamined by the present Supreme Court, at least for now, general contractors and site owners in Texas, Mississippi and Louisiana will be subject to OSHA citations even if their employees are not exposed to the violative condition. This standard comes close to strict liability for general contractors and site owners because the overall site authority OSHA uses is hard to avoid. Generally, the general contractor would need to put up a high fence around a contractor and never inquire as to the contractor’s work. What this all means is that the safety record of contractors becomes even more important as it may be an indicator of future issues for which a general contractor or site owner may be cited for, at least by OSHA. How this will work out in the context of civil negligence suits when a general contractor or site owner is cited under this theory will be something to watch in the future.