8th Circuit Issues Ruling on OSHA Multi-Employer Worksite Policy
On February 26, 2009, the 8th Circuit Court of Appeals issued a decision in the matter of Secretary of Labor v. Summit Contractors, Inc., OSHRC Docket #07-2191. The 8th Circuit reversed the May 2007 decision of the Occupational Safety and Health Review Commission (OSHRC), which had held that a general contractor who had none of its own employees exposed to a hazard could not be cited. In reversing the Review Commission, the 8th Circuit held 29 CFR § 1910.12(a), which states, "Each employer shall protect the employment and places of employment of each of his employees engaged in construction by complying with the appropriate standards prescribed in this paragraph," means that an employer has to protect not only its own employees, but the "places of employment" where each of its employees are working. The 8th Circuit further ruled that because the employer must protect the place of employment of each of its employees, the employer could be cited for hazards existing in such places of employment, even if the employer’s own employees were not exposed to the hazard. This ruling applies to construction work, as opposed to general industry or other industries, and affects the 8th Circuit, which includes the states of Missouri, Arkansas, Iowa, Minnesota, Nebraska, North Dakota and South Dakota.
The decision of the Review Commission in Summit Contractors would still stand in circuits other than the 8th Circuit. Additionally, states operating under state plans (as opposed to the federal OSHA plan) may have their own laws and interpretations that are different from the 8th Circuit and/or Federal OSHRC. You will need to carefully consider which ruling applies to your site.
OSHA Amends Regulations to Allow Separate Fine for Each Employee
In December 2008, OSHA issued a final rule allowing employers to be cited on a per employee basis for employees who do not wear appropriate personal protective equipment. |
PPE includes things such as fall protection, ear plugs, protective footwear, gloves, flame retardant clothing, and hard hats.
The effective date of the regulations is January 12, 2009. The new regulations are found throughout 29 CFR § 1910 (general industry), 1926 (construction), 1915, 1917 and 1918. The regulations state that the standards requiring an employer to provide PPE, including respirators and other types of PPE, impose a separate compliance duty with respect to each employee covered by the requirement. The failure to provide PPE to each employee may be considered a separate violation for each employee.
Additionally, the regulations state that the training requirements impose a separate compliance duty with respect to each employee covered by the requirements. As a result, the failure to train employees may be considered a separate violation for each employee.
The financial impact of these new regulations could be staggering. Currently the maximum fine for a single willful violation is $70,000. Under the new regulations, OSHA may take the position that if ten employees are not wearing the required PPE, the employer may be cited up to $700,000 in fines for those employees in the case of a willful violation.
Employers need to carefully review all PPE requirements and training, and make certain they not only provide the necessary PPE to employees but enforce the PPE requirements to ensure all employees are using the required PPE. |
