I. Purpose and Application of OSHA

1. History and Applicability of OSHA

The Occupational Safety & Health Act of 1970 (OSH Act) was signed into law December 29, 1970. The Occupational Safety & Health Administration (OSHA) began operations on April 28, 1971. OSHAs first standards were promulgated May 29, 1971. The OSH Act was passed to assure, so far as possible, every working man and woman in the nation safe and healthful working conditions and to preserve our human resources. See 19 U.S.C. 651, also known as the General Duty Clause.

The OSH Act applies to all employers and their employees in all fifty states, the District of Columbia, Puerto Rico and all other territories under federal government jurisdiction. Under the OSH Act, an employer means a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any state or political subdivision of a state. 29 U.S.C. 652(5).

OSHA regulations apply either directly through the federal OSHA program or through a federally approved OSHA state program. Any state may submit a state OSHA plan, which the federal Secretary of Labor shall approve if it is at least as effective as the OSH Act. 29 U.S.C. 667. The following twenty-six states and territories currently have OSHA-approved safety and health plans: Alaska, Arizona, California, Connecticut, Hawaii, Iowa, Idaho, Indiana, Kentucky, Maryland, Michigan, Minnesota, North Carolina, New Jersey, New Mexico, Nevada, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Virginia, Virgin Islands, Vermont, Washington, and Wyoming.

Most states have adopted plans that are identical to the federal standards and have procedures similar to the federal system. However, there are some differences between the federal system and OSHA-approved states plans. This paper focuses on federal standards and regulations. If you practice in a state with an OSHA-approved plan, you should be cognizant that your state may have slightly different standards and regulations than those discussed in this paper.

2. Who is the Employer? The Issue of Multi-Employer Work Sites

Construction sites often involve multiple employers working alongside or with one another. The prospect thus exists for an employers violation of an OSHA standard to cause injury to another companys employee working at the same job site. OSHA may penalize an employer for exposing another companys employee to a hazard. See Brennan v. OSHRC, 513 F.2d 1032 (2nd Cir. 1975). In Brennan, OSHA penalized a subcontractor at a construction site for violating OSHA regulations by leaving construction materials near the edge of an elevated, open-sided floor, above workers employed by other subcontractors. On appeal from the citation, the United States Occupational Safety & Health Review Commission (OSHRC) found no violation because the subcontractors own employees were not exposed to any danger. OSHA appealed the OSHRCs finding to the Second Circuit. The Second Circuit found that the General Duty Clause, which provides that employers must comply with Occupational Safety & Health Regulations promulgated under the Act, was not limited to its own employees exposure to a hazard. See Brennan, at 1037-38. The Brennan court held that an employer may be cited if anyone in an area under that employers control was exposed to a regulation violating hazard. See Brennan at 1038.

Subsequent to Brennan, the OSHRC has further articulated an employers obligations to other employers workers at multi-employer construction sites. The OSHRC formerly adopted the principle established by Brennan in Anning-Johnson Co., 4 O.S.H. Cas. (BNA) 1193 (1976). The principle established by Brennan was expanded to all multi-employer work sites by another OSHRC decision. See Harvey Workover, Inc. 7 O.S.H. Cas. (BNA) 1687 (1979).

The OSHRC has also expanded its definition of the type of action at multi-employer work sites that employers can be liable for when workers are exposed to hazards. In Red Lobster Inns of AM., Inc., 8 O.S.H. Cas. (BNA) 1762 (1980), the OSHRC held that an employer that could be reasonably expected to prevent or detect and abate violations due to its supervisory authority and control over the work site, may be liable for OSHA violations which occur on the work site. Thus, a general contractor, or other employer with control over a work site, may be subject to citation even though its employees did not actually cause the hazard for which the OSHA citation was issued.

The OSHA Field Inspection Reference Manual contains standards for multi-employer work sites. See Multi-Employer Citation Policy, OSHA Instruction CPL 2-0.124 (December 10, 1999). The Field Inspection Reference Manual lists the following four categories of employers who are subject to citation:

A. The Creating Employer:

The Creating Employer is the employer that caused a hazardous condition that violates an OSHA standard. An employer that does so may be cited even if the only employees exposed to the hazard are those of other employers at the work site.