OSHA has long had the ability to seek criminal referrals and issue heavy fines for workplace incidents that involve serious injury or death. Last week, it flexed that muscle.
In response to what the Department of Labor organization called an “alarming” increase in trench and excavation deaths — 22 thus far in 2022 compared to 15 in all of 2021 — OSHA said it “will consider every available tool at the agency's disposal,” including criminal referrals.
But what does that mean for contractors?
“Although rare, owners can be prosecuted for these types of violations, especially if they knowingly disregarded safety protocols,” said Trent Cotney, CEO of Cotney Attorneys & Consultants and partner at Adams and Reese. “With the increase in trench deaths caused primarily by the collapse of unstable material, it is not surprising that OSHA would underscore its capability to seek criminal penalties for violations.”
Cotney went on to say he didn’t think the statement was a scare tactic, and that OSHA will find a case with suitable facts — essentially making an example out of a case as a deterrent and hopeful boon to trench safety efforts.
“OSHA might be looking to make an example of somebody,” said Carol Sigmond, partner at New York-based law firm Greenspoon Marder.
Major employer groups welcomed and even applauded OSHA for the announcement.
“In light of the startling statistics that OSHA has presented regarding trench-related fatalities, ABC is encouraged that OSHA has announced enhanced initiatives to address trench safety,” said Greg Sizemore, vice president of health, safety, environment and workforce development for Associated Builders and Contractors. “Clearly, trench safety needs additional focus and education. It is imperative that field team members work with safety professionals to ensure zero harm for all construction workers.”
Brian Turmail, vice president of public affairs and strategic initiatives for Associated General Contractors of America, said the organization was “not opposed” to the initiative because OSHA already has a straightforward and effective standard for trench safety.
“We want to make sure everyone in construction understands the requirements for safe trenching operations, and follows them, without exception,” he said.
Per OSHA, contractors can prevent cave-ins by sloping trench walls, shoring walls with support or shielding walls with trench boxes. Additionally, employers should ensure workers can safely enter and exit the trench, and keep an eye out for standing water or other hazards. Finally, workers should never enter a trench if it hasn’t been properly inspected, OSHA says.
Builders must remain vigilant, Sigmond said. Ensuring every worker on a site knows the standards and having zero tolerance for overlooked safety measures — like an example OSHA cited where two workers died in a trench collapse with unused shields nearby — will go a long way.
“If we don’t get these construction deaths under control, construction insurance is going to get more expensive, and that’s going to hurt everybody,” Sigmond said.
