“Controlling” Employers Are Again on the Hook for Their Subcontractors’ Actions
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.