General Contractor May Be Cited for Hazardous Condition Affecting Only Subcontractor Employees

The U.S. Court of Appeals for the Fifth Circuit deferred to the Secretary of Labor’s interpretation of the Occupational Safety and Health Act enabling the Secretary to issue a citation to a general contractor at a multi-employer worksite for hazards affecting only subcontractors’ employees.

Under OSHA’s multi-employer policy, a “controlling employer” (meaning one with control over a worksite and that should have detected and prevented a violation through its supervisory authority) may be cited for a violation even if its own employees were not exposed to the hazardous condition. In Acosta v. Hensel Phelps Construction Co., the Fifth Circuit reversed its own prior holding that “OSHA regulations protect only an employer’s own employees.” Instead, the Fifth Circuit found that deference to the policy was warranted because the Secretary’s interpretation of OSHA as authorizing multi-employer workplace citations was reasonable. In so holding, the Fifth Circuit joins seven other Circuits.