In May 2017, a trench collapsed at a construction site in Pennsylvania, leading to a worker’s death. The construction contractor that employed that worker was criminally charged by federal prosecutors in the Western District of Pennsylvania for violating the Occupational Safety and Health Act (the “OSH Act”). For construction industry employers, this will resonate as a stern reminder of the need to pay close attention to OSHA compliance— not only for the safety of their employees, but to avoid the devasting impacts that hefty fines and a criminal history could have on their businesses.
Indeed, under the OSH Act, an employer may be criminally prosecuted in cases where an employee has died because of the employer’s “willful” violation of OSHA regulations. OSHA defines a “willful” violation as one “in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.” By way of example, in the above referenced Pennsylvania trench collapse fatality, the employer was cited with a “willful” OSHA violation for allegedly disregarding known trench building hazards. What’s more, is that despite contesting the underlying citation, the employer could still face a $500,000 penalty and up to 5 years of probation if convicted.
Similarly, after a 2016 trench collapse in Massachusetts resulted in two worker fatalities, a construction employer was indicted on manslaughter charges where a grand jury found that it “willfully, wantonly, and recklessly failed to take the standard safety precautions that could have averted that tragedy.” In that case, the employer faced a multitude of “willful” OSHA citations, and over $1.4 million in fines from OSHA.
In addition to the obvious human tragedy, most construction industry employers simply could not withstand the hefty financial and reputational damage of being criminally charged for a workplace fatality. Luckily, there are steps that employers can take to reduce the likelihood of such incidents and ensure OSHA compliance.
A few of the risk-mitigating actions employers may take are as follows:
Review and update safety manuals.
Employers should ensure that their safety manuals and internal procedures reflect current standards. For reference, OSHA publishes extensive construction safety guides outlining job-specific standards and best-practices. Employers should regularly review their operating procedures to make sure they are consistent with information published by OSHA. By doing so, an employer will demonstrate that it is taking active steps to keep its employees safe and informed.
Perform post-incident investigations.
The first step to addressing worksite hazards is identifying them. Employers can learn about existing hazards by performing post-incident investigations whenever an employer is hurt or nearly hurt (close call). Once the hazard is identified, employers should institute corrective actions to prevent future accidents of the same kind. By performing and maintaining records of post-incident investigations, employers will further be able to demonstrate their commitment to safety to OSHA.
Be prepared for OSHA on its arrival.
It is wise for employers to preemptively train supervisory or management level employees on how to handle OSHA inspections and investigations. While OSHA typically operates during normal business hours, it often shows up unannounced. If caught by surprise, management is more likely to make an admission that could be binding on an employer. For example, if an admission is made that a manager knew about an incident-related hazard, this could support the finding of a “willful” violation. To help stay prepared, employers should consider designating and training a manager to be in charge of the OSHA process. Whenever an employer is subject to an OSHA investigation, it is important to contact legal counsel to ensure that the employer’s rights and interests are being protected.
It is no secret that without proper training and supervision, certain construction jobs can be especially dangerous and, sometimes, fatal. As a result, industry employers face heightened levels of government regulation, oversight, and scrutiny from OSHA. Therefore, when it comes to OSHA compliance, proactivity is key for construction employers. As outlined above, employers should review their OSHA policies and training procedures before an inspector comes knocking at their door.