Soon, contractors performing work on multi-employer job sites in Louisiana, Mississippi and Texas will learn whether they could face Occupational Safety and Health Administration (OSHA) liability even if their employees are not exposed to a safety hazard that violates an OSHA standard.
At press time, the 5th U.S. Circuit Court of Appeals, which hears appellate cases arising in Louisiana, Mississippi and Texas, is considering Acosta v. Hensel Phelps Construction Company. The case concerns an OSHA citation issued in Austin, Texas, where an administrative law judge (ALJ) vacated an OSHA citation issued to a general contractor who witnessed a subcontractor's employees violating OSHA standards.
Only in the three states that fall under the jurisdiction of the 5th U.S. Circuit Court of Appeals is there case law stating OSHA does not have authority to cite employers whose own employees are not exposed to a safety hazard. This may change when a decision in Acosta v. Hensel Phelps Construction Company is issued. Other U.S. Circuit Courts of Appeal in different regions have upheld OSHA's authority to issue citations to employers whose own employees were not exposed to hazards in violation of an OSHA standard.
A bit of history