The short answer is the proverbial attorney response, “it depends.” Under OSHA’s multi-employer citation policy, an employer may be held responsible for the violations of other employers where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite. In Secretary of Labor v. Summit Contracting Group, OSHRC Docket No. 18-1451 (May 10, 2022), the two-member Commission determined that the 11th Circuit has never explicitly adopted or rejected the multi-employer doctrine, and thus applied Commission precedent to the circumstances of the case. After doing so, the Commission ultimately reversed the administrative law judge’s decision and vacated a fall protection citation issued against a general contractor for the failure of its subcontractor’s employees to use fall protection.

In Summit, the general contractor acknowledged it was a controlling employer under OSHA’s multi-worksite policy. Thus, in the absence of actual knowledge of a hazard it was required to exercise reasonable care to prevent or detect violative conditions. The Commission noted this duty is less than what is required of an employer with respect to protecting its own employees and turns on the nature, location, and duration of the hazards as well as objective factors relating to the controlling employer’s role at the worksite and its relationship with other onsite employers. Here, the Commission concluded that the record fell short of establishing the general contractor failed to exercise the requisite reasonable diligence. In so holding, the Commission relied on several factors including: (1) the violative conditions existed for only 10 or 15 minutes; (2) it was not clear whether the general contractor’s supervisor was in a position to observe the violative condition; and (3) there was insufficient evidence to establish the general contractor’s monitoring of the subcontractors employee was inadequate, e.g., the general contractor’s supervisor typically conducted daily walkaround inspections. In addition, the Commission also found insufficient evidence to conclude that the general contractor’s reliance on its subcontractor’s safety efforts was unreasonable , e.g., the subcontractor had its own safety consultant, utilized its own fall protection plan, held safety meetings with its employees, provided fall protection training to those employees, and had its own supervisors conduct safety inspections at the worksite. For all of these reasons, the Commission concluded that the Secretary did not establish that the general contractor failed to exercise the reasonable care required of a controlling employer in a secondary safety role and thus, did not meet his burden of proving knowledge.

Summit serves as an important reminder that although general contractors may be liable for safety violations of its subcontractors, the best way to avoid such liability is to take reasonable steps to ensure they are monitoring the worksite for safety issues. In addition, general contractors need to do their due diligence prior to engaging subcontractors to ensure such subcontractors have their own safety practices in place. As a best practice, general contractors should review their contracts with subcontractors to make sure they address a subcontractor’s independent safety practices and obligations. As a general rule, the more comprehensive these subcontractor safety commitments are set forth in contracts, the more likely a general contractor’s reliance on a subcontractor’s own safety practices will be deemed reasonable.