Reliance on Specialty and Expert Contractors for OSHA Compliance Must Be Reasonable.

By:  Lucas I. Pangle

What you should know: Employers are entitled to rely on expert and specialty contractors to ensure compliance with OSHA standards—but only when that reliance is reasonable. The Court of Appeals for the D.C. Circuit recently clarified that reliance is not reasonable when the employer—by way of expertise, control, and time—should foresee danger to its employees. 

OSHA compliance becomes tricky and complicated whenever there are workers from multiple employers at a particular worksite. As an employer, you face two principal challenges:

(1) what are your obligations to prevent the exposure of another employer’s employees to workplace hazards you create or control, and

(2) what are your obligations to prevent the exposure of your employees to hazards created by another employer.

OSHA’s multi-employer citation policy provides some guidance on the overlapping and interlocking compliance responsibilities at multi-employer worksites. The general gist is that employers are expected to comply with OSHA standards regardless of whose employees are exposed to a workplace hazard.

This is typically true even when an employer hires a contractor to perform services at its worksite; the employer remains citable for any violations of OSHA standards that expose its employees to injury.

The Sasser Exception

There is, however, a narrow exception to that general rule. In an older case, Sec’y of Labor v. Sasser Elec. & Mfg. Co., 11 O.S.H. Cas. (BNA) 2133 (Rev. Comm’n 1984), the Occupational Safety and Health Review Commission held that an employer may, under certain conditions, rely on a specialty contractor to ensure compliance with safety standards within the purview of the contractor’s expertise. For instance, an employer who knows nothing about operating cranes, and who therefore hires a crane operator, is entitled to reasonably rely on the expert crane operator to comply with OSHA standards.

The central, difficult question is when an employer is entitled defer to the specialty contractor. The Commission has explained that an employer will be justified in relying upon the specialist to protect against hazards related to the specialist’s expertise so long as the reliance is reasonable. Reliance is reasonable when the employer has no reason to foresee that the work will be performed unsafely, and reliance is unreasonable when an employer has reason, by way of expertise, control, and time, to foresee a danger to its employees.

D.C. Circuit Refines Sasser Exception

The United States Court of Appeals for the District of Columbia recently evaluated the contours of reasonable reliance in Manua’s, Inc. v. Scalia, No. 18-1307 (D.C. Cir. Jan. 28, 2020). There, the employer was Manua, Inc. (“Manua’s”). Manua’s needed to unload steel beams from a shipping container onto an empty adjacent lot. To do so, it hired an APECS crane operator. Several of Manua’s workers were present and were told assist with attaching the steel beams to the APECS crane. Work proceeded over several days, during which both APECS and Manua’s employees would act as a signal person to guide the operation of the crane. While unloading the beams, the crane touched a live overhead power line, electrocuting three Manua employees.

OSHA cited Manua’s for several infractions, including failing (i) to define the work area, (ii) to take precautions necessitated by the fact that the crane could come within 20 feet of the power line, and (iii) to train the employees assigned to the rigging work on safety hazards and proper procedures while working near power lines.

Manua’s argued these citations were all related to the operation of the crane and that it reasonably relied on APECS to comply with OSHA regulations. But, the D.C. Appeals Court disagreed—and explained the sort of factors probative of reasonable reliance:

  • Manua’s had not previously worked with APECS, so there was no demonstrated history of safe practices on which Manua’s could rely.
  • Nearly a dozen Manua’s employees were intimately and integrally involved with the work, so a limited inquiry was not reasonable.
  • The contract between Manua’s and APECS shared safety responsibility between the two.
  • As a practical matter, Manua’s and APECS, shared control over the project.
  • The violative conditions were not discrete or momentary—rather, they had been in existence since the outset of the work.

On these findings, the Court concluded that the danger to Manua’s employees was foreseeable and that Manua’s reliance on APECS to comply with OSHA regulations was unreasonable.

The Manua’s decision is a helpful treatment of a tricky concept. It emphasizes that employers may not confidently or readily defer to specialists to comply with OSHA standards (i) where the employer has not previously worked with the specialist, (ii) where the employer maintains some control over the specialist’s activity on the worksite, and (iii) where the specialist’s violations are open and obvious, and were discoverable by the employer.

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