Safety Agency Applies Federal Law To Bar Employer Safety Violation Citation.

 
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Agency's Application of 5th Circuit Appeals Court Precedent Will Benefit Employers

The federal agency that reviews OSHA safety violation cases, also known as the OSH Review Commission, recently adopted the decision of one of its Administrative Law Judges who applied 5th Circuit precedent to reject a safety violation citation against a construction employer working in Texas. The June 1, 2017 decision is no doubt significant for the construction industry, as the Review Commission held that the Occupational Safety and Health Administration (OSHA) could not cite a general construction contractor for an alleged safety violation under the Occupational Safety and Health Act of 1970 (OSH Act) when the general contractor's own employees were not exposed (Secretary of Labor v. Hensel Phelps Construction Co.)

This ruling has immediate implications for construction employers in Texas, Louisiana, and Mississippi. It could also preview a split among federal circuit courts of appeal regarding the Secretary of Labor's enforcement powers under the OSH Act.

Background: OSHA Has Taken Broad Approach For Liability Purposes

For decades, OSHA has cited employers across the country for safety violations under what is referred to as the "controlling employer" doctrine. For purposes of that doctrine, the Secretary of Labor has interpreted the OSH Act to allow OSHA to cite multiple employers for an individual safety violation regardless of who employs the workers that were exposed to the cited hazard.

The most common situation in which this doctrine is applied occurs when OSHA cites a general construction contractor for a safety hazard created by a subcontractor. For OSHA, liability is not limited to only those employers who created the hazard or exposed their own employees to it. OSHA also considers it important to consider citing those employers who "control" the place of work. Thus, the agency will cite non-exposing employers when they might reasonably have been expected to remedy the hazardous situation regardless of whether the company's own workers were exposed to the cited hazard.

Nonetheless, since the 5th Circuit Court of Appeals' 1981 ruling in Melerine v. Avondale Shipyards, Inc., it has been circuit law (for agency review cases arising out of Texas, Louisiana, and Mississippi) that protection under the OSH Act only extends to an employer's own employees. Under this interpretation, an employer who does not expose its own employees to hazard may not be cited for the...

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