Fifth Circuit Expands OSHA’s Authority To Cite General Contractors

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

In 1981, the Fifth Circuit Court of Appeals announced in Melerine v. Avondale Shipyards, Inc., that “OSHA regulations protect only an employer’s own employees.” For thirty-seven years, this decision shielded general contractors in the Fifth Circuit from OSHA citations as to hazards to which their own employees were not exposed. On November 26, 2018, however, the Court overturned this long-standing precedent.

In Acosta v. Hensel Phelps Construction Co., the Fifth Circuit addressed a citation arising from a cave-in hazard at a multi-employer construction worksite. In reliance upon its Multi-Employer Citation Policy, OSHA cited both the general contractor and a subcontractor for the hazards, even though only the subcontractor’s employees were exposed to the hazard.

An Administrative Law Judge (“ALJ”) of the Occupational Safety & Health Review Commission found that the general contractor met the requirements of a “controlling employer” as to the hazard under the Multi-Employer Citation Policy. Citing Melerine, the ALJ nevertheless vacated the citation against the general contractor because only employees of the subcontractor were exposed to the hazard.  The Secretary of Labor appealed.

Citing a “seismic shift” in administrative law since Melerine, a unanimous three-judge panel of the Fifth Circuit reversed. In doing so, the Court expressly held OSHA does have the authority under the Occupational Safety & Health Act (“OSH Act”) “to issue a citation to a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.”

For general contractors in Texas, Louisiana and Mississippi, the impact of the reversal of a doctrine which had been around for thirty-seven years cannot be overstated. Responsibility for the safety of all workers on a multi-employer construction worksite is now a non-delegable duty of a general contractor which is the “controlling employer” on the site. The days are over when such a general contractor could simply look to its subcontractors to safeguard the safety of their own employees.

Furthermore, the risks of an OSHA inspection of a multi-employer worksite just increased for general contractors. These risks do not simply include hazards to which only employees of a subcontractor are exposed. The risks include prior inspections which can now be cited as evidence of willful violations.

If they have not done so already, therefore, general contractors in these states must now look to the Multi-Employer Citation Policy for guidance not only as to their responsibilities under the OSH Act, but also as to the consequences of having an ineffective safety compliance strategy for a multi-employer worksite or an inadequate plan for handling OSHA inspections at such a site.

Eleventh Circuit Limits Scope Of Unprogrammed Inspection

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On October 9, 2018, the Eleventh Circuit Court of Appeals in U.S. v. Mar-Jac Poultry, Inc., affirmed a district court order quashing a search warrant which sought to expand the scope of an unprogrammed OSHA inspection.

Following an electrical accident at Mar-Jac Poultry, Inc., a Georgia poultry processing plant, OSHA requested to inspect not only those hazards involved in the electrical accident, but also to conduct a comprehensive inspection of the entire facility for additional hazards. Mar-Jac consented to inspection of the electrical accident site and the tools involved, as well as its OSHA 300 Logs, but refused to permit inspection of any additional areas or hazards.

In its application for a judicial warrant for an expanded inspection, OSHA sought to inspect (1) hazards implicated by the OSHA 300 logs, and (2) hazards that the Poultry Regional Emphasis Program (“REP”) identified as being of particular concern within the poultry processing industry. OSHA obtained its requested warrant, but Mar-Jac promptly filed an emergency motion to quash.

The District Court granted the motion to quash as to the hazards identified in the Poultry REP. The Court found OSHA had failed to establish that Mar-Jac was selected for inspection pursuant to the application of neutral criteria. OSHA did not appeal this ruling.

The District Court also granted the motion to quash as to five hazards implicated by the OSHA 300 logs.  OSHA did appeal this ruling to the Eleventh Circuit.

In affirming the District Court ruling, the Eleventh Circuit opined: “The existence of injuries does not necessarily mean that the injuries were caused by OSHA violations, or justify the issuance of an administrative warrant for evidence of OSHA violations.”  Upon analysis, the Court thus ultimately found: “The content of the OSHA 300 logs in this case fails to create reasonable suspicion [of an OSHA violation] either alone or in combination with the other information in the [warrant] application.”

The Eleventh Circuit ruling confirms what this blog has urged in multiple posts.  There are limits to the permissible scope of an unprogrammed OSHA inspection. If OSHA is unwilling to agree to a limited inspection, there are options which can be explored with legal counsel for fighting an expanded inspection.