A construction worker was killed last month while operating an excavator on the site of the future Encore Boston Harbor (formerly known as the Wynn Boston Harbor) resort and casino in Everett, MA. The worker was an employee of a subcontractor working on the project under the general contractor, Suffolk Construction. Investigations by local and Massachusetts State Police and the federal Occupational Safety and Health Administration (OSHA) are under way to determine the cause of this fatality.
The U.S. Court of Appeals for the District of Columbia in 2011 decided Summit Contractors, affirming the potential for general contractors to be held liable under OSHA standards for hazardous exposures to the employees of a subcontractor. Under OSHA’s multi-employer citation policy (MECP), more than one employer, including both a contractor and a subcontractor, may be held liable for a workplace hazard if:
- The employer is creating, exposing, correcting, or controlling in relation to a hazard, and
- The employer’s actions were insufficient to meet its obligations with respect to OSHA requirements.
What does this mean in practice? An employer is:
- Creating if it caused the hazardous conditions that violated an OSHA standard.
- Exposing if its employees are exposed to the hazard.
- Correcting if it is on the same worksite as the exposing employer and is given the responsibility of installing or maintaining health/safety equipment or devices.
- Controlling if it has supervisory authority over the worksite, including the power to correct safety and health violations either through control established by contract or in practice.
Steps an employer-contractor can take to protect your company include:
- Conduct regular inspections of the work site.
- Hire sub-contractors with excellent safety histories.
- Require all sub-contractors to observe safety rules and OSHA standards.
- Inform all sub-contractors of conditions that could violate OSHA and require correction of these conditions.
If you have further questions about employer or contractor liability under OSHA, please do not hesitate to contact our office.
This post is for informational purposes only and is not offered, nor should it be construed, as legal advice. Statutes, regulations and case law may revise and amend applicable law. This overview should not be solely relied upon, without also consulting the then current state of the law as applicable to the particular facts and circumstances of each case.