Lindy Ochoa

Associate Editor

Loyola University Chicago School of Law, JD 2028

Compliance is easier to manage when responsibility is clear from the start. Construction projects often involve general contractors, subcontractors, suppliers, and other trades, each with different roles and expertise. Before work begins, the parties use contracts to define those roles and establish who will handle different aspects of the project. But those contractual provisions do not necessarily eliminate a general contractor’s independent obligations under the Occupational Safety and Health Act (OSHA). Under OSHA’s Multi-Employer Citation Policy (Citation Policy), a general contractor may be subject to a citation when it has sufficient authority over a worksite and fails to exercise reasonable care to address hazardous conditions. OSHA’s analysis could benefit from emphasizing private contracts when determining whether a general contractor exercised reasonable care, making enforcement more consistent with how construction projects actually operate.

The current controlling employer framework

In response to the multi-employer nature of construction worksites, OSHA adopted its Citation Policy to clarify when more than one employer may be cited for a safety violation. An OSHA citation identifies an alleged violation of an OSHA standard and may require corrective action and impose proposed penalties. The Policy . creating, exposing, correcting, or controlling employers.

Under the Citation Policy, a controlling employer has general supervisory authority over a worksite, including the authority to correct violations or require another employer to do so. On construction projects, that role  is often filled by general contractors, which coordinate multiple subcontractors and oversee the project as a whole. Unlike a subcontractor that typically manages its own scope of work, the general contractor’s broader role can make it harder to determine where their responsibility ends, and the subcontractor’s begins.

OSHA uses a two-step process to determine whether any type of employer may be cited. First, OSHA determines the employer’s role at the worksite. For a general contractor, control may come from its contract, its actual role over the worksite, or both.  Second, OSHA evaluates whether the employer took appropriate steps to meet its obligations. For a controlling employer, this means determining whether it used reasonable care to prevent and detect violations. When analyzing if reasonable care was exercised by a controlling employer, OSHA considers the project’s size and pace, the subcontractor’s safety history and experience, and whether the controlling employer conducted inspections and followed up on violations.

Solis v. Summit Contractors illustrates the consequences for a general contractor. Summit subcontracted masonry work, but the subcontractor’s employees were working without fall protection. Summit’s supervisors saw the violation and told the subcontractor to correct it. When the problem continued, OSHA cited Summit even though Summit’s own employees were not exposed. The Eighth Circuit upheld the citation, showing that a general contractor’s authority over a worksite can create OSHA responsibility even when a different employee created the hazard.

Step two of OSHA’s controlling employer citation analysis raises a practical question: If OSHA is determining what reasonable care is required of a general contractor, how much weight should be given to the contractual allocation of safety responsibilities between the parties and the specialized expertise of the subcontractor?

Giving private contracts greater weight aligns OSHA with Construction Practice

OSHA already gives contractual authority significant weight at step one of the analysis and considers a subcontractor’s expertise at step two when determining if a general contractor exercised reasonable care. However, a private contract can give OSHA a clearer picture of how the project actually operated when applying Step Two. A general contractor may oversee a worksite without having specialized knowledge of every trade working on it. An electrical subcontractor, for instance, should know more about electrical hazards than the general contractor coordinating the project. A general contractor should not have to become an electrician simply because it has authority over them.

At step two, OSHA should establish how the parties divided safety responsibilities when determining what reasonable oversight is for a specific project. Step two is retrospective, asking OSHA to evaluate the general contractor’s conduct after the project has begun, and a violation has occurred. The parties’ contract, however, reflects decisions made before work began about who would perform the work and who would handle particular safety issues. The contract should therefore be part of that inquiry, not just evidence that the general contractor had control. If the parties agreed that a qualified subcontractor would handle a safety issue, that agreement should inform OSHA’s assessment of what the general contractor knew and what oversight was appropriate.

Adopting this approach does not mean the contract would control the outcome. A general contractor that knew about a hazard and failed to act should not escape a citation because the contract assigned responsibility to a subcontractor. However, if the general contractor followed that division of responsibility and maintained appropriate oversight, that should count for something. It may also incentivize parties to address who will handle safety issues, putting those in the best position to ensure safety in charge and memorializing these decisions before a project begins.

Not every contract will provide a perfect roadmap, especially when cost and schedule pressures shape what makes it into the final agreement. But where the parties have already done the work of documenting their roles, OSHA should not have to reinvent the wheel after the fact. Giving private contracts greater weight at step two of OSHA’s reasonable-care analysis would provide more consistent outcomes to how construction projects operate.