General contractors can be responsible for hazardous jobsite conditions impacting workers who are not their own, according to a recent ruling from the United States Court of Appeals for the Fifth Circuit. It says that general contractors can be cited under the Occupational Safety and Health Act or Occupational Safety and Health Administration (OSHA) regulations even if hazardous conditions under their control affects a subcontractor’s employees.
Hensel Phelps Construction Co. entered into a contract with the City of Austin to build a new public library in 2010. The company’s onsite management personnel, including superintendents, project engineers and project managers, maintained control of the jobsite. Hensel Phelps contracted with subcontractor Haynes Eaglin Watters (HEW) to do work on the Seaholm Substation east screen wall in 2014. Later that year HEW contracted with sub-subcontractor CVI Development to complete demolition and excavation required for the wall, according to the ruling.
OSHA cited both CVI and Hansel Phelps for willfully violating regulations by exposing employees to a cave-in hazard from an unprotected excavation at a construction site. The citation against Hensel Phelps was pursuant to OSHA’s multi-employer citation policy, under which an employer who causes a hazardous condition who should have detected and prevented a violation through the reasonable exercise of its supervisory authority may be cited for a violation, whether or not its own employees were exposed to the hazard.
The administrative law judge for the Occupational Safety and Health Review Commission’s Denver regional office used the Melerine v. Avondale Shipyards Inc. ruling as part of its decision in favor of Hensel Phelps in April 2017. In the Melerine ruling by the 5th Circuit in 1981, it was decided that OSHA regulations only protect an employer’s own employees. The Department of Labor appealed the Denver regional office’s decision.
In the recent appeals court decision, the court examined Melerine v. Avondale Shipyards Inc. The recent ruling says that “this court’s prior construction of the act was just a choice of one side of a ‘complex debate.’”
Hensel Phelps believes that U.S. Department of Labor Secretary Alexander Acosta’s interpretation of the act authorizing the controlling employer policy “would force general contractors to assert control over the activities of subcontractors,” increasing their liability. The court says that no controlling-employer citation under 29 USC 654(a)(2) would affect Hensel Phelps’ common law duties as an employer and that reversal of Melerine is warranted.