Employers cannot assume that their subcontractors will have total responsibility for the safety of their employees under a recent court ruling from the 8th U.S. Circuit Court of Appeals, based in St. Louis.  Many general contractors write into contracts with their subcontractors that the  subcontractor is totally responsible for the health and safety of their own employees. In some cases, the contracts may assume that subs take on the total responsibility for the safety of their employees.  But this court decision says that an employer can no longer avoid OSHA liability simply by subcontracting work to another entity.

If the employer maintains some degree of safety control over the worksite then that company is called a “controlling employer.”  As a controller employer, the company can be held responsible by OSHA for hazardous conditions on the site, even if they did not directly create them or expose their employees to the conditions.

General contractors should always understand their OSHA responsibilities on the worksite and that all subcontractors are following applicable OSHA rules and regulations. This may also mean that OSHA may increase its focus on work sites, particularly construction sites, where it can cite multiple employers for a single safety or health violation.  This decision also increases the potential for criminal liability for multiple employers where an employee is killed at the work site.

The decision also opens the door for OSHA to reinforce its multi-employer worksite policy.  The multi-employer worksite policy says that a company that is not considered a controlling employer can be held responsible for an unsafe condition it created even if its employee was not involved in an ensuing accident.

According to recent figures released at a DOL presentation May 12, 2009, MSHA will not be receiving much in the way of additional funding for its programs.  While OSHA get a 10 percent budget increase, MSHA will only get 2 percent.   The DOL defends their position saying that over the past several years, MSHA has received large budget increases, which have allowed the agency to step up its enforcement significantly.

However, for instance, the state grants program under MSHA, an $8 million program will not be receiving any additional monies in FY 2010.  As far as enforcement efforts, enforcement at MSHA, presently a $237 million program for 2010 is budgeted at a little over $242 million, barely a 2% increase.  From MSHA’s Office of Standards, Regulations and Variances, the 2010 budget figures show barely any increase ($50,000) in its $3 million program to promulgate new regulations.

And funding for compliance assistance to employers, which could help employers comply with mine safety regulations, working with MSHA as partners, presently is non-existent.  According to the DOL presentation, “…MSHA’s enforcement programs do not set aside funding for compliance assistance activities. MSHA offers compliance assistance to labor unions, employers and individual workers to help them understand the safety and health laws and fully comply with them…”

Furthermore, mine safety itself  isn’t highlighted in any of the budget materials.  Is protecting the nation’s miners simply not a priority for the Department?

Labor Secretary Hilda Solis warns that OSHA will increase inspections at federal worksites in connection with projects funded by the economic stimulus bill, with a special focus on construction work.  “As you undertake these new projects, please be mindful that the Department of Labor’s Occupational Safety and Health Administration may be conducting increased inspections of federal worksites…” Solis said.

She singled out construction work as including “some of the more consistently hazardous worksites,” saying OSHA would be “focusing its resources to account for the anticipated increase in construction projects and related activities” as a result of the stimulus funding.

The three-page letter further urged the other cabinet secretaries to “…take steps to safeguard both federal workers and contractors…” involved in stimulus bill projects that fund expanded infrastructure, new construction projects, or any other new work or worksites.  Solis also urged the cabinet secretaries to enroll their staff in a two-day training program OSHA will be offering for federal employees at OSHA Training Institute centers across the country.

President Obama’s fiscal 2010 budget request seeks funding for 130 new OSHA inspectors, with a special focus on foreign-speaking inspectors to address changes in workplace demographics. Solis told a Senate appropriations subcommittee May 13 that the budget request will “restore OSHA’s enforcement presence in the nation’s workplace.”

More than $88 billion in stimulus funds has been disbursed, according to the White House’s first quarterly report on the stimulus, released May 13.