OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
October 10, 1978
Mr. Jack Fees
Safety Education Director
Construction Industry Service
Cleveland, Ohio 44114
Dear Mr. Fees:
This is in response to your recent letter requesting the answers to several questions not addressed at the AGC workshop meeting of July 13, 1978. I have replied to your questions in the same order as posed in your letter. Please accept my apology for the delay in response.
For the purpose of considering whether a violation is repeated, citations issued to employers having fixed establishments (e.g., factories, terminals, stores), will be limited to the cited establishment. For employers engaged in businesses having no fixed establishments (construction, painting, excavation) repeated violations will be alleged based on prior violations occurring anywhere within the same State. This distinction between construction employers and employers with fixed establishments has recently been deemed permissible by the United States Court of Appeals for the Fourth Circuit in George Hyman Construction Co. v. OSHRC and the Secretary of Labor #77-1591 (August 22, 1978). The question of whether a citation for a repeated violation will be issued frequently raises difficult issues of law and policy, including the evaluation of complex factual situations. Accordingly, citations for a repeated violation are not issued without the Area Directors consulting with OSHA Regional Administrators who as appropriate, discuss the matter with U.S. Department of Labor's Regional Solicitor.
At the present time, a repeated violation may be cited where OSHA's retained inspection records indicate the previous violation of a particular standard. A prescribed time period has not been established by OSHA for repeated violations. The subject, as well as others relating to multi-employer worksites, has been under consideration by OSHA.
The response to your letter dated April 25, 1978, from the Division of Occupational Safety Programming is correct. However, contrary to your initial impression, OSHA may cite an employer who creates or controls a hazardous condition even if that employer has no employees who are exposed to the condition. (Brennan v. OSHRC & Underhull Construction Corp. 513 F.2d 1032 (C.A.2, 1975)). A proposed guideline (copy enclosed) was published in the Federal Register on April 27, 1976, which addressed the issue of OSHA policy for the issuance of citations on multi-employer worksites, where employees of a number of contractors are present at the same workplace. The issue is still under active discussion and your comments, as well as others, will be given every consideration.
OSHA has continually recruited safety and health professionals with construction backgrounds as compliance officers. Construction inspections are normally conducted by compliance officers with this expertise. This agency is also concerned with the quality of our inspections. Every effort is made through our selection of compliance officers, courses at our Training Institute and on-the-job training to maintain a high level of professional competence for out field staff.
Thank you for your continuing interest in safety and health. If I may be of any further assistance, please feel free to contact me.
Basil J. Whiting, Jr.
Deputy Assistant Secretary