The 5th Circuit Court in New Orleans just ruled that the “controlling employer” (read that the General Contractor) on a multi-employer” jobsite is responsible for subcontractor-created OSHA violations on the jobsite. That ruling, as it stands, creates additional risk for the GC on the jobsite.
The ruling, issued on November 26, 2018, according to an article in Protool Reviews written by Kenny Koehler, means that the GC is responsible for the violations affecting not only their own employees, but is now responsible for any violations that might impact any other employee on the jobsite, even those who work for other subcontractors. Ultimately the responsibility for the creation and maintenance of a safe jobsite on a “multi-employer jobsite” is the responsibility of the GC. OSHA will issue citations to both the sub who might create a violation and the GC who did not correct the violation thereby placing workers in danger.
The ruling essentially changes the existing law (Melerine) that says an employer was only responsible for the safety of their own employees to one where the GC is responsible for anyone who enters and works on the jobsite, no matter who employees them.
The change is based on a ruling on a public library project in Austin, Texas and an OSHA citation originally filed in 2010. There is “case precedent”, and this is a heads up for you and for your legal counsel to review.
The decision can be read in full at http://www.ca5.uscourts.gov/opinions/pub/17/17-60543-CV0.pdf
