Revisiting the GC’s Responsibility for Jobsite Safety

By Joseph Dirik, Esq

A recent decision by the Occupational Safety and Health Review Commission could provide relief for Texas’ general contractors.

Joe Dirik is a graduate civil engineer and attorney. He is a member of the litigation and construction law practice groups at the Dallas office of Fulbright & Jaworski LLP. He can be reached at dirik@fulbright.com.

Secretary of Labor v. Summit Contractors Inc., a recent decision by the Occupational Safety and Health Review Commission, could prove the end for the Occupational Safety and Health Administration’s “Multi-Employer Citation Policy” and provide relief for Texas general contractors. The Summit decision calls into question OSHA’s authority based on more than 30 years of previous commission decisions. Under the policy, a general contractor could be cited for a safety or health violation if the contractor creates the hazard, controls the worksite or has authority to correct the hazard to which another contractor’s employee is exposed. In the past, OSHA usually treated the general contractor as the “controlling employer,” even when the only person exposed worked for a subcontractor and the general did not create the cited safety hazard.

Recent Texas Supreme Court decisions have dealt with the control issue between general contractor and subcontractor and resulting jobsite accidents. The Texas cases focused on the issue of “retained control” by the general contractor in connection with the subcontractor’s safety efforts. The court looked at subcontract language governing control and independent contractor status, as well as the actual practices at the jobsite, to determine whether a general contractor retained enough control for liability in connection with an injury to a subcontractor’s employee. In Dow Chemical v. Bright, the Texas Supreme Court concluded that language requiring the subcontractor to follow the general contractor’s desires did not give the general contractor the right to control the subcontractor’s means, methods or details. The court’s conclusion presents an important distinction. A general contractor should be able to communicate to its subcontractor a desire for a safe jobsite, without controlling the subcontractor’s work and assuming responsibility for  violations. A court will usually look at the practices at the jobsite to determine if the general contractor exercises sufficient control, notwithstanding contract language to the contrary.

Many construction lawyers would agree that by following the Supreme Court’s decisions, general contractors could still be liable for OSHA violations under the policy. This places safety-conscious contractors in a bind. On the one hand, a general contractor should make sure that its subcontract agreement clearly establishes that the subcontractor is an independent contractor and that the general contractor exercises no control over the subcontractor’s means, methods and manner of performing the subcontractor’s work. But a prudent general contractor should insure safety for everyone.

In Summit, two out of three commissioners agreed in separate opinions that the policy is invalid in the construction context when applied against a “controlling employer” who neither creates, nor has employees exposed to, the cited safety hazard. Relying on regulation 29 CFR 1926.16, OSHA, in the past, took the view that by entering into a contract with the owner, a general contractor assumes all the obligations of an employer for the jobsite, “whether or not it subcontracts any part of the work,” and “in no case shall the prime contractor be relieved of overall responsibility for compliance… for work to be performed under the contract.  Another regulation, 29 CFR 1910.12(a), states “each employer shall protect the employment and places of employment of each of his employees engaged in construction work…”  The concurring opinion in Summit explained that section 1910.12(a) was intended to limit OSHA’s unbridled discretion to hold general contractors liable for subcontractor violations. 

The Summit decision should be viewed narrowly and would not apply when employers are not engaged in “construction work” under regulation 29 CFR 1910.12(b) and instead are engaged in “general industry” work subject to the standards in 29 CFR 1910.

OSHA has appealed the Summit decision. We are waiting to see if OSHA will continue to enforce the policy because the Summit decision is not binding precedent on OSHA.

If OSHA adopts the limits and changes its approach of holding general contractors liable for all employees on a project concerning cited safety hazards, Texas contractors will have a better understanding of their obligation to effectively maintain a safe jobsite.