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Fifth Circuit Upholds OSHA’s Multi-Employer Citation Policy

The Fifth Circuit has now joined the seven other Courts of Appeals that have rejected challenges to the Occupational Safety and Health Administration’s (“OSHA”) Multi-Employer Citation Policy.  In Acosta v. Hensel Phelps Constr. Co., a unanimous panel overruled decades-old precedent to hold that OSHA has authority under the Occupational Safety and Health Act of 1970 “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.” Acosta v. Hensel Phelps Constr. Co., No. 17-60543, 2018 WL 6168044, at *1 (5th Cir. Nov. 26, 2018).

The decision has important implications within the Fifth Circuit (Texas, Mississippi, and Louisiana).  OSHA may now rely on the Multi-Employer Citation Policy to cite employers for hazardous conditions that endanger their sub-contractors or other non-employees.  This shift broadens the scope of potential liability for employers who control multi-employer worksites.  Affected employers should carefully consider their responsibilities under the Multi-Employer Citation Policy and verify they are providing the appropriate duty of care to non-employees who may be exposed to hazardous conditions.

Background

The City of Austin contracted with a general contractor to build a new public library. The general contractor hired a subcontractor for certain work, including some excavation at the worksite. During a safety inspection, OSHA found the subcontractor’s employees working beside an excavated wall without required protection from cave-in hazards.  Despite safety concerns raised by the subcontractor, the general contractor gave instructions to continue work.  Relying on the Multi-Employer Citation Policy, OSHA issued the general contractor a willful citation even though none of the company’s employees was exposed to the hazard. 

The Multi-Employer Citation Policy is a directive covering workplace violations that involve multiple employers.  The policy permits the agency to cite employers who are “controlling,” “exposing,” “creating,” or “correcting” safety hazards.  Each category of employer is described in detail by the policy through illustrative examples.  Under the policy, employers owe different duties of care to certain non-employees depending on the employer’s responsibility for the hazardous condition.

Fifth Circuit Sides With OSHA

The contractor appealed the citation to the Occupational Safety and Health Review Commission.  The Commission noted that the citation would ordinarily be upheld.  Applying Fifth  Circuit precedent, however, the Commission held that an employer could not be liable for an OSHA violation for a subcontractor’s employee’s exposure to a hazardous condition.  Hensel Phelps Constr. Co., Respondent., 26 O.S.H. Cas. (BNA) ¶ 1773 (O.S.H.R.C. A.L.J. Apr. 28, 2017).

OSHA appealed the Commission’s decision to the Fifth Circuit seeking to overturn long-standing precedent that had precluded use of the Multi-Employer Citation Policy.  Applying Chevrondeference, the court sided with OSHA’s interpretation that the Occupational Safety and Health Act grants the agency authority to cite controlling employers at multi-employer worksites. 

The court reasoned that at a multi-employer worksite only the general contractor has supervisory authority and thus should bear the burden of complying – and directing its subcontractors to comply – with OSHA’s requirements.  The panel also distinguished as obsolete prior case law that precluded application of the Multi-Employer Citation Policy because those cases arose prior to Chevron

Implications

Employers in the Fifth Circuit who control multi-employer worksites must now carefully consider the duty of care owed to subcontractors and other non-employees.  The Multi-Employer Citation Policy outlines detailed guidance on what degree of oversight employers must provide non-employees based on their degree of control over a safety hazard.  Employers should expect OSHA to immediately begin relying on the Multi-Employer Citation Policy to cite employers at multi-employer worksites in Texas, Louisiana, and Mississippi.

© 2020 Beveridge & Diamond PC National Law Review, Volume VIII, Number 354

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About this Author

Mark N. Duvall Chemicals Regulation Attorney Beveridge & Diamond Washington, DC
Principal

Mark has over two decades of experience working in-house at large chemical companies. 

His focus is product regulation at the federal, state, and international levels across a wide range of programs, and occupational safety and health.

He leads the firm’s Chemicals group. His experience under the Toxic Substances Control Act (TSCA) includes enforcement actions, counseling, rulemaking, advocacy, and legislative actions. Since the enactment of TSCA amendments in 2016, he has been heavily involved in advocacy, compliance activity, and litigation arising from EPA's implementation...

202-789-6090
Jayni A. Lanham Environmental, Health, & Safety Attorney Beveridge & Diamond Baltimore, MD
Associate

Jayni draws on her experience with environmental, health, and safety (EHS) regimes to help clients assess risk, develop compliance strategies, and build strong legal and technical cases when faced with litigation or enforcement.

Jayni counsels companies in a variety of industries on regulatory compliance and represents them in litigation and enforcement proceedings related to a broad range of federal and state EHS laws. Jayni is a leader of Beveridge & Diamond’s Occupational Safety and Health group and has significant experience advising clients on compliance obligations relating to worker health and safety, providing advice following workplace incidents, helping clients prepare for and respond to government inspections, and defending against enforcement actions and related litigation.

Jayni entered the practice of environmental law because of her intersecting interests in law, policy, science, and technology. Her work involves considering historical factual and technical issues, managing complex parallel proceedings in both the criminal and civil regulatory arenas, and collaborating with subject matter experts to find creative solutions to her clients’ complex EHS issues.

Jayni values learning about her clients' operations and businesses and draws on her experience across many industries to help clients improve overall compliance, develop necessary corrective steps, build strong legal and technical cases to minimize liability, and achieve business goals.

Professional Involvement

Jayni maintains an active pro bono practice and has assisted individuals with civil litigation, immigration, and criminal expungement matters. One of Jayni’s notable pro bono cases involved the representation of a family that was displaced from its home for seven months because of a mercury spill. Jayni’s advocacy on behalf of the family enabled the family to obtain a favorable settlement for the family’s expenses and hardship during the cleanup of its home.

Before joining B&D, Jayni interned with the Maryland Office of the Attorney General at the State Highway Administration and the Maryland Department of the Environment. During law school, Jayni earned a certificate of Concentration in Environmental Law, served on the Maryland Law Review, and represented clients on a variety of environmental matters as a member of the University of Maryland Environmental Law Clinic.

410-230-1333
Michael F. Vitris Environmental Litigation Attorney Beveridge & Diamond Austin, TX
Associate

Michael F. Vitris partners with clients to efficiently resolve complex civil and criminal environmental litigation.

He is an environmental litigator in the Austin office of Beveridge & Diamond, with a national practice defending companies in a wide variety of matters including environmental and mass torts, class actions, and federal citizen suits under the major environmental statutes. 

Mr. Vitris also leverages his past experience as an environmental attorney with the Texas Commission on Environmental Quality to help clients prevent environmental violations or favorably...

512-391-8035