Legal Corner

from Construction Outlook December 2022

Technology in Construction

Construction & Public Contracts Group, Hinckley Allen, LLP Christopher Morog Partner Robert T. Ferguson Partner

OSHA Investigations and Trench Safety

In a recent Press Release, the U.S. Department of Labor reported that “[t]rench collapses are among the construction industry’s most lethal hazards” with 22 fatal injuries in the first half of 2022. Contractors should expect that OSHA will continue to aggressively enforce trench safety standards.

Just before Thanksgiving, OSHA announced that it had cited an Illinois contractor for allegedly failing to take required measures to protect workers from trench cave-ins. According to the report, an OSHA inspector observed two employees working on municipal water and sewer lines in a 7-foot trench “without adequate cave-in protection or safe ways to get in and out of the trench.” The inspector also observed a company foreman supervising the work in the unprotected trench. According to OSHA, this “demonstrate[d] the company’s lack of concern for federal regulations, industry-recognized best practices and its legal responsibility to protect workers on the job.” In fact, this particular contractor had reportedly been cited previously for trench-related violations. In this case, OSHA “cited the company for three repeat, one serious and one other-than-serious violations” with proposed penalties of $118,962. OSHA investigations and enforcement actions have seemingly ramped up this year. With the construction industry as a whole already under close OSHA scrutiny, it is as important as ever to ensure compliance with applicable safety requirements. As with other compliance matters, the existence of a written safety policy alone is often not enough. Contractors must be sure that the policy is robust and is taken seriously. The policy should be available to employees, sometimes in other languages in addition to English. Contractors must actively administer their safety policies, and discipline employees in cases of violations. Regular and effective training (by properly qualified personnel) is also a must, along with proper supervision of worker activity. Contractors should also maintain detailed and organized records of their safety-related practices. Failures to timely or properly produce requested records can lead to further OSHA violations.

These are only a few practice tips to consider in order to avoid or minimize potential OSHA exposure in the unfortunate event an accident occurs. There are numerous other resources available to assist contractors in protecting the health and safety of their workers.

In the event that OSHA does visit a particular Project Site, contractors are strongly encouraged to consult with experienced counsel right away. In many cases, it is useful for counsel to visit the Project Site during the OSHA inspection, interview, and citation process. There are various steps that contractors can and should consider taking in the event that a potential OSHA-issue arises. A single misstep could lead to further unwanted (and potentially avoidable) results. n