Reed Smith Client Alerts

Several developments affecting Occupational Safety and Health Administration (OSHA) regulations and enforcement policies have recently taken place. Perhaps most significantly, the Fifth Circuit Court of Appeals has upheld OSHA’s use of the multi-employer worksite doctrine, which allows citations to be issued to more than one employer for the same accident or hazard. OSHA has also clarified its position regarding regulatory anti-retaliation provisions to alleviate employer concerns that safety incentive programs or employee drug testing may run afoul of the agency’s requirements. Additionally, the operator qualification requirements for cranes and derricks have been amended to allow less restrictive certification categories, but imposing additional responsibilities on employers to ensure competency on employers. Finally, OSHA renewed its commitment to enforcing trenching and excavation violations with an updated National Emphasis Program (NEP).

Multi-employer worksite doctrine applies in Fifth Circuit

The U.S. Court of Appeals for the Fifth Circuit has overturned a long-standing precedent in that circuit, now granting deference to OSHA and allowing OSHA’s use of its multi-employer worksite doctrine to enforce safety regulations.

OSHA regularly issues citations to multiple employers at a work location for the same accident or conditions violating a safety standard based upon a 1999 OSHA Directive, entitled “Multi-Employer Citation Policy, OSHA Directive CPL 2-0.124.” Under this policy, OSHA asserts that “[o]n multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA standard” with the belief that such a policy does not impose additional duties on employers not already established in the Occupational Safety and Health Act of 1970 (OSH Act). With the recent Fifth Circuit decision, all federal appellate courts now agree that OSHA’s multi-employer worksite doctrine is legally supported under the OSH Act.

The November 26, 2018 decision in Hensel Phelps reexamines the court’s previous holding that both the OSH Act and OSHA regulations only protect an employer’s own employees. Acosta v. Hensel Phelps Constr. Co., No. 17-60543, 2018 WL 6168044 (5th Cir. Nov. 26, 2018). The precedent and its supporting case law date back to the late 1970s through the early 1980s, which the court acknowledges was before the U.S. Supreme Court established the two-step process now accepted as the proper standard when examining an executive’s agency interpretation of their own regulations in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). “Chevron deference” requires courts to determine whether Congress has spoken directly to the question at issue and if not, to determine if the agency’s position is reasonable, giving broad discretion to agencies. Id.

The Hensel Phelps decision can be accessed at