No construction firm wants to think about the possibility of a work-related fatality. But tragically, workplace deaths are a reality for hundreds of construction employers each year. In the event of a work-related fatality, Texas construction companies must be aware of the Department of Labor’s Occupational Safety and Health Administration (OSHA) reporting and inspection procedures so they may fulfill their responsibilities and reduce their potential liability.
Reporting Responsibilities
Employers of all sizes are required to report workplace fatalities to OSHA within eight hours. A report may be made by:
- Calling the nearest OSHA office
- Calling the OSHA 24-hour hotline at 1-800-321-6742
- Filling out an online report
You do not have to report fatalities that resulted from motor vehicle accidents on public streets or highways, except those that occurred in a construction work zone. Further, incidents that occurred on commercial or public transportation systems, such as trains or planes, do not have to be reported.
OSHA Inspection
When a workplace incident results in a worker death, OSHA will look to investigate the incident immediately. Because of the potential liability involved, it is advisable that you notify your attorney as soon as possible. Your attorney can help you prepare for the imminent OSHA inspection, ensure your rights are protected throughout the investigation, and help limit your potential liability.
OSHA will attempt to determine the cause of the fatality. They will also analyze whether you violated any OSHA standards, regulations, or the general duty clause, and what impact these violations had on the incident. OSHA will determine the appropriate scope of the investigation based on various factors, including whether there was a prior history of willful, serious, or repeat violations or if there were past reports of near misses. The OSHA compliance officer will examine the location where the incident took place and interview eyewitnesses as well as other employees who could provide relevant information. The agency will likely review injury logs, safety and health programs, and training and maintenance records. OSHA may use videography or photography as part of the evidence collection process.
Know Your Rights During the Inspection
Employers have certain rights during an OSHA inspection, even when there is a workplace fatality. When an OSHA inspection officer arrives at your door, you generally have a right to ask them to wait for a reasonable amount of time, such as an hour, for your chosen OSHA representative and/or your attorney to arrive on the site. Demanding that OSHA obtain a warrant in order to investigate may help buy you more time to prepare, but in most cases it is not advisable. OSHA will assume you have something to hide and will likely conduct a broader investigation once returning with the warrant. A better strategy is to informally negotiate a narrower scope for the investigation.
Your OSHA representative and attorney should accompany the OSHA compliance officer on the walk-around and keep detailed notes of what the inspector says and observes. If the inspector takes photos or videos, your representative should take photos or videos of the same things. Throughout the inspection process, anything your OSHA representative or others say can be used against the company; therefore, the best policy is to avoid volunteering extra information.
With regard to employee interviews, your OSHA representative and attorney can generally be present during discussions with managers but not rank-and-file employees. Rank-and-file employees can be accompanied by their own representative, who can be either an employee or a non-employee. You can debrief the employees about what to expect during the interview; they should be advised to tell the truth but to avoid commenting if they lack first-hand knowledge of a situation or if a particular issue falls outside their areas of expertise. Employees can refuse to allow OSHA to record their conversations, and they are not required to sign a written statement after speaking to OSHA. If they do sign a statement, employees should request a copy of their signed statement. Written statements by your OSHA representative or managers should be reviewed by legal counsel before they are signed.
The compliance officer will check to make sure the OSHA workplace safety poster is displayed in a place where employees gather. The agency will also review various records as part of its investigation.
Next Steps
During the closing conference at the end of the inspection, the OSHA compliance officer will inform you of whether citations are likely to be issued and what the process will be. The compliance officer may also discuss abatement procedures to fix violations to prevent future injuries, illnesses, or deaths. After the compliance officer submits their report to OSHA, the agency will likely issue citations with monetary penalties and abatement deadlines for any violations.
If you disagree with the citation, you may request an informal conference with OSHA to try to resolve the matter informally. Your OSHA defense attorney may be able to negotiate a monetary penalty reduction or even get the citation vacated in some cases. Or the attorney may be able to negotiate a modification of the citation so that it is reclassified into a less serious category, such as getting a “Willful” classification reduced to “Serious.” It is important to note that in the case of workplace fatalities, the Occupational Safety and Health Act provides for criminal penalties for employers convicted of having willfully violated an OSHA standard, rule, or order. If your citation cannot be resolved informally, your attorney can represent you in contesting it through litigation.
The OSHA defense lawyers at Pappas Grubbs Price PC can help you assert your rights throughout the OSHA inspection, settlement mediation, and litigation processes. With offices in Houston, Dallas, Austin, and San Antonio, our OSHA attorneys have represented hundreds of clients in OSHA investigations, and we are able to perform 24/7 rapid response on-site coordination with our clients, often arriving before the OSHA inspector. For assistance with your OSHA matter, contact Pappas Grubbs Price.
