Recently, in Acosta v. Hensel Phelps Construction Co., the Fifth Circuit overruled itself and upheld the Occupational Safety and Health Administration’s (“OSHA’s”) multi-employer worksite policy. Under its multi-employer worksite policy, OSHA holds employers responsible for hazards they create and/or control, even if their own employees are not exposed to those hazards. OSHA’s multi-employer worksite policy is particularly important in the construction industry where there are multiple contractors with employees working throughout the site, and the conduct of one employer will often affect the safety of employees of other employers on the site.
The Fifth Circuit had previously rejected OSHA’s multi-employer policy standard and held that “OSHA regulations protect only an employer’s own employees.” Melerine v. Avondate Shipyards, Inc., 659 F.2d 706, 711 (5th Cir. 1981). Thus, under Melerine, OSHA could not cite an employer for creating or controlling a hazard that only put the employees of other contractors at risk.
In Hensel Phelps, the subcontractor was tasked with installing rebar at the base of an excavation that had not been properly protected from cave-ins. It was raining that day, and the subcontractor contacted Hensel Phelps, the general contractor on the project, and expressed concern that the work was unsafe. Hensel Phelps nonetheless ordered the subcontractor to perform the work, and had a superintendent stand close by as the subcontractor’s employees worked at the base of the unprotected excavation. OSHA cited Hensel Phelps for violating its trenching standard because Hensel Phelps had authority to control the worksite. But because the events took place in Texas, which is in the Fifth Circuit, the Administrative Law Judge found he was bound by Melerine and vacated the citation.
On appeal, the Fifth Circuit overruled Melerine and joined the seven other courts that have considered the question in finding that OSHA has authority to cite “a general contractor at a multi-employer construction worksite who controls a hazardous condition at that worksite, even if the condition affects another employer’s employees.” This is a significant decision because Melerine has long hindered OSHA’s ability to ensure safe working conditions for employees on multi-employer worksites in Texas, Mississippi, and Louisiana.
Sherman Dunn, P.C. filed an amicus brief on behalf of a client in support of the Secretary of Labor.