The odds of OSHA showing up at your worksite have increased for construction employers engaged in excavation and trenching.  OSHA recently announced an update to its National Emphasis Program (“NEP”) to prevent trenching and excavation collapses after a spike in construction fatalities.  The October 2018 update focuses on both increased enforcement and education activities by OSHA Area Offices.

The updated NEP instructs inspectors to initiate an investigation whenever they observe an open trench or excavation, regardless of whether or not a violation is readily observable.  These observations could be made during the course of the inspector’s work-day travels or during a routine inspection.  OSHA will also continue to conduct inspections based on employee complaints or referrals from third-parties, such as city inspectors or other governmental agencies.

The scope of the inspection will, in most cases, be limited to evaluating the hazards associated with the excavation.  However, if other violations are observed, the inspector can expand the scope of the inspection to address those other areas.

Pursuant to the updated NEP, OSHA Area Offices are required to develop and implement a “comprehensive excavation safety outreach program.”  The education outreach activities are likely to include:

  • News releases to disseminate information concerning the updated NEP;
  • Seminars on trenching and excavation safety for employer groups, trade associations and unions; and
  • Educational material on trenching and excavation safety for (i) licensing or other municipal agencies for distribution to employers when they request dig permits; (ii) utility and plumbing companies for distribution to employers; and (iii) industry association for distribution to members.

Employers are well advised to focus on maintaining a safe worksite by complying with OSHA’s standards on trenching as well as other applicable standards.  OSHA’s website has a wealth of information regarding trenching and excavation safety.

OSHA recently passed new rules requiring employers to notify OSHA of a fatality within eight (8) hours of the death.  The new rules also require employers to file a report with OSHA for each in-patient hospitalization of an employee or situations where an amputation or eye-loss has occurred.  The report must be made within 24 hours of the incident.  OSHA defines in-patient hospitalization as a “formal admission to the in-patient service of a hospital or clinic for care or treatment.”  Employers can make the report in person to the OSHA area office, by a toll-free number, 1-800-321-OSHA, or by electronic submission on OSHA’s website,  The reporting obligations apply to all employers, even those that are exempt from OSHA’s recordkeeping requirements.  The new rules will go into effect on January 1, 2015.

As a result of this change, OSHA will likely perform more inspections of establishments where serious injuries or fatalities occur.  As always, it is imperative for employers to be proactive in an effort to minimize unsafe conditions in the workplace.  At the same time, employers need to develop procedures to address serious injuries or fatalities that may occur in their establishment.  To this end, employers should educate their managers and supervisors of OSHA’s new reporting requirements.  By taking these steps, employers can protect their employees and minimize their liability resulting from workplace accidents.

OSHA’s injury and illness recordkeeping regulations, 29 C.F.R. 1904, require that on February 1, 2013 certain employers post a summary of all injuries and illnesses that occurred in 2012.  Employers are required to use OSHA’s 300A summary form or an equivalent form.  The summary must remain posted until April 30, 2013.  Even if there were no recordable incidents in 2012, companies are required to post the 300A summary form.

The summary form must be posted in a place where notices to employees are customarily posted or should be provided to employees who may not see the posted summary because they do not report to a fixed location on a regular basis.  The owner or officer of the company is required to certify the information contained in the OSHA 300A form.

OSHA’ recordkeeping requirements apply to all non-exempt employers.  Excluded from these regulations are companies with ten or fewer employees as well as low hazard industries such as retail, service industries, finance etc.  A full listing of exempt employers as well as OSHA’s recordkeeping forms and instructions can be found at its website, OSHA.

Due to the overwhelming damage to homes, businesses, and public facilities by Super Storm Sandy, cleanup is a priority for most victims of Sandy.  With the federal and state governments joining in that effort, the Occupational Safety and Health Administration (“OSHA”) published a fact sheet entitled “Mold Hazards During Hurricane Sandy Cleanup,” which can be found on OSHA’s website.

Most molds are harmless but some can cause infections and allergy symptoms.  The fact sheet outlines safety precautions and procedures, which are based on the size of the impacted area, to be taken when dealing with mold-infested structures.  These recommendations are mandatory for employers as to minimize employee exposure to mold.

  • Areas less than 30 square feet – the work area should be unoccupied but removing people from adjacent spaces is unnecessary.  Surfaces in the work area should be covered with plastic to prevent dust and debris contamination. 
  • Areas greater than 30 square feet, – in addition to the work area, areas directly adjacent to the work area should be unoccupied.  The ventilation ducts in the work area and areas directly adjacent to the work area should be sealed with plastic sheeting.

If there is extensive and visible mold contamination, a mold remediation plan should be developed and implemented that addresses work area isolation, the use of exhaust fans and air locks/decontamination rooms.  If the contamination is significant, an industrial hygienist with experience in performing mold remediation should be consulted.

The key to protecting employees and the public when remediating mold is to eliminate inhalation of the mold spores.  This is achieved by using engineering controls that minimize the airborne exposure.  Such controls include wetting materials to minimize dust and debris, exhaust ventilation, and sealing areas in which the work is being conducted.  Likewise, certain work practices should be followed such as prohibiting eating, drinking and smoking in work areas, using high efficiency vacuums, controlling access to the work area, and using decontamination procedures.  Personal protective equipment, such as respirators, goggles, gloves and protective clothing, is also recommended.

The Occupational Safety and Health Administration (OSHA) is an agency within the United States Department of Labor.  OSHA’s primary function is to inspect workplaces including manufacturing facilities and construction sites to ensure compliance with its safety and health standards.  As a result of these inspections, OSHA in most cases issues citations to employers for violations of OSHA’s standards observed during the inspection.  Below is a list of the top 10 most frequently cited OSHA standards violated in 2011.

1. Scaffolding (29 CFR 1926.451) – This standard applies to construction sites and provides the general safety requirements for the construction and use of scaffolding.

2. Fall Protection (29 CFR 1926.501) – This rule is to protect employees from falling off, onto or through working levels and covers most construction workers.

3. Hazard Communication Standard (29 CFR 1910.1200) – The hazard communication standard provides employees with information about chemicals used in the workplace.  Employers are required to label all chemicals used in the workplace, provide employees with material safety data sheets and train employees on the safe handling of such chemicals.

4. Respiratory Protection (29 CFR 1910.134) – Respirators are typically required to protect employees against airborne contaminants such as dusts, smokes, gases or vapors.  In most cases, the use of respirators must comply with this standard.

5. Control of Hazardous Energy (29 CFR1910.147) – Also known as the lockout/tagout standard, this standard requires employers implement practices and procedures to safeguard employees from the unexpected startup of machinery during service or maintenance activities.

6. Electrical Wiring Methods (29 CFR 1910.305) – This standard sets forth the general requirements for wiring methods in the workplace.

7. Powered Industrial Trucks (29 CFR 1910.178) –The use of powered industrial trucks such as forklifts is regulated by this standard.

8. Ladders (29 CFR 1926.1053) – This standard applies to construction sites and governs the use and construction of ladders.

9. Electrical Systems Design (29 CFR 1910.303) – The inspection, installation and use of electrical equipment in the workplace is governed by this standard.

10. Machine Guarding (29 CFR 1910.212) –The general requirements for machine guarding are described in this standard.