In the construction industry safety of those working on the worksite is very important. The Occupational Safety and Health Act (OSHA) govern the regulations regarding the safety and security of the workers while working on a construction project. A general contractor is the nodal point of contact in respect of a construction project and he is the person who engages others who work on the project. The workforce will be either the direct employees of the General Contractor or those of the subcontractor who is hired to complete a particular part of the project.
When there are safety lapses on the worksite leading to injuries or fatalities during the completion of the construction project, the questions arise whether the General Contractor can be indicted for the lapses committed by the sub-contractor in complying with the provisions of the OSHA. Now it is has been held by the 5th Circuit Court in New Orleans, that General Contractor can be cited for the safety lapses committed by the subcontractor in respect of his workers. The Court has categorically held that the OSHA authorities can take action against the General Contractor of a construction project for subcontractor safety violations even if the employees of the General Contractor are not affected by the violations.
Earlier the OSHA administrative Judge in a case has held that the General Contractor can be held responsible for OSHA violations in respect of his direct employees and not those employed by a sub-contractor working under him. This decision was taken on review by the Labor Secretary, Alexandra Acosta and in the course of the delivering its verdict the 5th Circuit Court has taken the contrary view and has given its decision that the General Contractor who is conducting the construction project will be liable for all the OSHA violations committed even by a Sub-Contractor hired by him. And this decision applies to cases even if there are no safety threats to the direct employees of the General Contractor.
This decision of the 5th Circuit Court is based on the other case law that has emerged since 2017, as to the legal position that the General Contractor can be cited for any OSHA violations committed on the worksite. In 2017, the question arose whether Hensel Phelps who was working on a large construction project in Austin, Texas, can be held responsible for the safety hazards created by one of its Subcontractors. The OSHA administrative Judge gave its verdict in negative. But the 5th Circuit Court has now held that the decision taken by the OSHA administrative Judge is wrong as he has placed reliance on certain case laws that are obsolete and no more valid.
In pursuance of the above decision of the 5th Circuit Court Hensel Phelps was cited for the safety on the multi-employer site as the General Contractor for the project, as he is the controlling employer for the entire project.
The relevant facts of the case for the proper appreciation of the decision of the 5th Circuit court are given as follows:
In Austin Texas, a Library Construction Project was underway and Hensel Phelps was the General Contractor for the project. He hired Haynes-Eaglin-Waters as the subcontractor for the project. During the Project, Haynes-Eaglin-Waters engaged CVI Development as a subcontractor to work under them for doing some demolition, excavation and other related works on the worksite. It is alleged that both Hensel Phelps and Haynes-Eaglin-Waters as controlling employers on the worksite directed the employees working under CVI Development to work in an unsafe excavation area.
On inspection of the worksite, an inspector under the OSHA cited both Hensel Phelps and CVI Development for safety violations. The OSHA administrative Judge passed an order that the General Contractor cannot be cited for the violations committed by its subcontractor when none of the General Contractor’s employees are affected by the Safety violations.
This decision has now been taken on a review and the 5th Circuit court has held that the General Contractor is the controlling employer on the worksite is responsible for all safety violations even if they are committed by a sub-contractor employed by him immaterial of the fact whether his employees are affected by the alleged safety violations.
In the light of the above decision of the 5th Circuit Court, now the workers on a construction site cannot be expected to work in dangerous situations and accept the risk as a part of their job. The safety at the workplace is of paramount importance and due to this, it is the duty of the Contractors, State Authorities and the Local Authorities to treat the safety of the workers on the highest priority.
Due to this, the Authorities are now empowered to cite the General Contractors for the violations committed by their subcontractors and pursue criminal charges against them if those safety violations resulted in injury or death at the construction site.