MAY 9, 2007

OSHA’s long-standing policy of citing general contractors for safety violations committed by sub-contractors at construction sites was overturned in a significant decision recently issued by the Occupational Safety and Health Review Commission. In overturning OSHA’s controversial, 30+ year multi-employer work site policy, the Review Commission held that OSHA may no longer cite a “controlling employer” when that employer did not create or subject its employees to the cited hazard. This decision will give general contractors and other “controlling employers” a significant weapon in contesting OSHA citations on multi-employer sites. However, it is very likely that this decision will be appealed and end up in the U.S. Court of Appeals. Moreover, tort liability for accidents and losses caused by sub-contractor actions will continue to be determined by the application of state laws and evaluating the reasonableness and extent of actions of general contractors and project managers to ensure safety. Stay tuned for further developments on this important and evolving topic.

To review the decision, see Secretary of Labor v. Summit Contractors Inc., OSHRC, No. 03-1622, 4/27/07
http://www.oshrc.gov/decisions/html_2007/03-1622.htm.

To discuss preventive programs that can be taken by general contractors, project managers, and site owners to reduce potential liability from contractor actions, contact Cole Wist (cwist@pattonboggs.com) at 303-830-1776.

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The Patton Boggs Health and Safety Law Group consists of attorneys who have resolved client problems in environmental, energy, natural resource, and safety and health law since the late 1960s. With lawyers in Washington, D.C., Alaska, Colorado, Texas, New Jersey, New York, and Northern Virginia, we have experience with EPA, OSHA, MSHA, NIOSH, DOT, OPS, Coast Guard, NTSB, FAA, FDA, CSP, the Chemical Safety Board, and almost every other federal and state government health and safety agency in the United States and throughout the world. We speak a variety of languages; have backgrounds in business, science, engineering, industry, and government; and combine preventive law counseling with courtroom and lobbying expertise to achieve results. For more information go to: http://www.pattonboggs.com or contact Henry Chajet (hchajet@pattonboggs.com) at 202-457-6511, Mark Savit (msavit@pattonboggs.com) at 202-457-5269, Cole Wist (cwist@pattonboggs.com) at 303-894-6159, John Austin (jaustin@pattonboggs.com) at 202-457-6167 or Willa Perlmutter (wperlmutter@pattonboggs.com) at 202-457-5223.

Important Note: This ALERT does not constitute legal advice and counsel should be consulted regarding specific factual situations which will determine the compliance advice applicable to any particular question regarding the subject matter. If you would like additional information or advice and counsel on training, compliance or audits, please let us know. 

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