Application of OSH Act and Multi-employer Citation Policy rather than CWHSSA to ensure subcontractors meet construction occupational safety and health responsibilities

Standard Number: 1926.16(a)

March 15, 2005

Clayton D. Rose, CSP
3 Tall Timber Drive
Wilbraham, Massachusetts 01095

Re: Application of OSHA Act and Multi-Employer Citation Policy rather than CWHSSA to ensure subcontractors meet construction occupational safety and health responsibilities

Dear Mr. Rose:

Thank you for your letter of February 21, 2002, to the Occupational Safety and Health Administration ("OSHA") and subsequent follow-up letters. We apologize for the long delay in addressing your concerns.

You asked several questions regarding the responsibility of a prime contractor that is subject to Section 107 of the Contract Work Hours and Safety Standards Act ("CWHSSA"). As we understand your questions, you are asking about the extent of such a prime contractor's responsibility for a subcontractor's violation of OSHA requirements. You ask whether the prime contractor's OSHA obligations are governed by the Multi-Employer Citation Policy (CPL 02-00-124) or whether those obligations go further as a result of the CWHSSA interpretive regulation found at 29 CFR 1926.16(a), which states, in part, that ...…in no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work performed under the contract."

As you may know, the construction safety provisions of CWHSSA were enacted in 1969 (40 USC 333). The following year, Congress enacted the Occupational Safety and Health Act ("OSH Act") (29 USC 651, et seq.). Pursuant to Section 4(b)(2) of the OSH Act, the occupational safety and health standards in effect under CWHSSA became OSH Act standards as well (29 USC 653(b)(2)).

Since that time, OSHA has issued new construction standards pursuant to the authority accorded by both statutes. As a result, the identical substantive safety and health standards apply under the two laws. Thus, OSHA enforces the same safety and health provisions at a construction site, regardless of whether the work at the construction site is covered by the OSH Act alone or covered by both the OSH Act and the CWHSSA. In addition, both CWHSSA and the OSH Act enable OSHA to engage the prime contractor in efforts to assure that all contractors at the site are complying with these health and safety provisions.

The two statutes' coverage and enforcement provisions differ substantially, however. For example, the OSH Act applies to all businesses that affect interstate commerce, while CWHSSA applies only to work done under certain federal or federally assisted contracts. The OSH Act, unlike CWHSSA, authorizes OSHA to issue citations requiring abatement of violations and imposing penalties. For many years, OSHA has used its authority under the OSH Act, rather than CWHSSA, to ensure compliance with its construction safety and health standards at all sites, regardless whether they would be subject to Section 107 of CWHSSA. The OSH Act procedures have proven effective in bringing about compliance and in encouraging prime contractors to take steps to assure that subcontractors at a site are meeting their occupational safety and health obligations. Accordingly, OSHA utilizes the OSH Act and the Multi-Employer Citation Policy, rather than CWHSSA and 29 CFR 1926.16, in determining the compliance obligations of prime contractors at construction sites whether or not the work is performed under a contract covered by the Davis Bacon Act or other legislation subject to Regulation Plan No. 14 of 1950.

Sincerely,

Jonathan L. Snare
Acting Assistant Secretary