Cleveland partner Patricia Poole authored an article, "OSHA Likely to Continue to Cite under Multi-Employer Policy," which was published in the June 22, 2009, edition of Bloomberg Law Reports - Labor and Employment.
According to Poole, "the Eighth Circuit Court of appeals upheld a long-standing policy of the Occupational Safety and Health Administration ('OSHA') to cite general contractors for violations of OSHA's construction standards (29 C.F.R. § 1926), even if the general contractor's employees are not exposed to the hazard. In deciding Solis v. Summit Contractors, Inc., the court split 2-1 on the issue of whether OSHA's multi-employer citation policy is precluded by the language of 29 C.F.R. § 1910.12(a)."
Poole continues: "Since OSHA's inception, it has had in place a 'multi-employer' citation or worksite policy. This policy is published in OSHA's Field Operations Manual . . . OSHA's guidance manual for its compliance officers. OSHA's position is that on multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard. OSHA directs its compliance officers to follow a two-step procedure when determining whether to cite a particular employer."
The article goes on to explain the two-step procedure OSHA directs its compliance officers to follow when determining whether to cite a particular employer, including clarification of the categories into which an employer may fall—"creating," "exposing," "correcting," or "controlling" employer—and the varying levels of responsibility for employer compliance, based on those categories.
Poole details the decision in Solis and concludes: "It seems clear that, consistent with its multi-employer policy, OSHA will continue to cite general contractors for safety violations at any construction site at which the contractor has employees. OSHA's position continues to be that its multi-employer policy applies not only to construction, but to general industry as well. OSHA's multi-employer worksite policy will continue to be litigated, particularly by creating and controlling employers cited for hazards to which their own employees are not exposed. As the court suggested, perhaps OSHA should consider formally subjecting the multi-employer worksite policy to the informal rulemaking process of the Administrative Procedure Act (5 U.S.C. § 553) as a predicate to its continued use in enforcement."