As one of the leading industries for workplace injuries and illnesses, the construction sector is an area of focus for Occupational Safety and Health and Administration (OSHA) investigations and enforcement.
According to the U.S. Bureau of Labor Statistics (BLS), there were 173,2000 nonfatal work-related injuries and illnesses in the construction and extraction industry in 2023. Further, the construction and extraction industry accounted for 1,056 work-related fatalities in 2022 (the most recent BLS data available), placing it second among all industries for fatal work injuries and illnesses.
As OSHA prioritizes higher-risk employers in its enforcement activities, companies in the construction industry should always be prepared for an OSHA investigation.
OSHA’s Investigation Priorities
OSHA performed 31,820 inspections in 2022 across its jurisdiction, which includes about 7 million worksites.
To most effectively use its limited resources, OSHA prioritizes its inspections based on the level of potential threat to workers’ health and safety. OSHA’s top priority is workplaces where the agency has reason to believe that hazards present an imminent danger of serious injury or death. Other priorities include workplaces where a workplace-related fatality or serious injuries or illnesses have occurred, followed by workplaces where workers have complained about alleged violations.
Next on the target list are referrals of alleged hazards or violations from other government agencies, third parties or the media, followed by programmed inspections of employers in specific high-hazard industries, including construction, as well as inspections of individual workplaces with high rates of injuries and illnesses. Follow-up inspections to check that previously cited violations have been abated are also done.
In nearly all cases, you will not know that your job site has been selected for an inspection until OSHA shows up at the door.
Be Prepared for an Inspection
While you don’t know if and when OSHA is coming, you can still prepare in advance for an OSHA inspection.
Arm yourself by putting a thorough health and safety program in place. This program should be led by a health and safety officer, and all workers should be trained in the program. All OSHA compliance documents should be up-to-date and readily accessible, and OSHA’s employee rights poster should be posted where it will be seen by workers.
Put together an action plan, to be immediately activated in the event of an OSHA visit. Having this plan in place – which details the steps to take – will help minimize panic and missteps. Appoint a member of your management team to serve as your company’s OSHA representative, to accompany the OSHA safety officer throughout the inspection process. Your OSHA representative should be the first person contacted when OSHA shows up. Appoint a deputy OSHA representative as well, in case the first individual is on vacation or otherwise unavailable when OSHA comes. Both individuals must be experts in your company’s health and safety program and trained in how to best represent your interests during an inspection and when they should consult legal counsel. You also have a right to have an attorney present throughout the inspection.
The Opening Conference
If your OSHA representative is not present when the OSHA compliance officer shows up, you have the right to request the inspection be delayed until this individual (and, preferably, your attorney) are on-site. OSHA will typically wait for up to one hour, which will also allow for some last-minute preparations before the inspection.
The inspection will begin with an opening conference, during which you should ask the OSHA compliance officer to produce credentials, along with the reason for the inspection. If the inspection resulted from a complaint from an employee or third party, ask to see a copy of the complaint. Also, ask the compliance officer about the intended scope of the investigation and whether OSHA has a warrant.
Generally, you have a right to demand that OSHA obtain a warrant prior to inspecting your job site. However, this is not usually advisable, except in certain situations, which must be evaluated on a case-by-case basis. OSHA will likely view the demand for a warrant as a hostile act and surmise that you are hiding something. This will probably result in the agency conducting a broader inspection once the warrant is obtained.
A better strategy is to informally negotiate a narrower scope for the investigation, including limiting the documents that must be produced, the individuals who will be interviewed, and the parts of the facility that will be inspected. However, even if certain areas are not part of the investigation, anything in the compliance officer’s plain sight may be included in the report.
The Walk-Around
Your OSHA representative (and preferably your OSHA attorney) should accompany the compliance officer on the walk-around. If hard hats or other safety equipment are required in the areas being inspected, all parties should wear them. Your OSHA representative should keep detailed notes of everything said during the investigation. If the OSHA inspector takes photos or videos to document what is seen, your representative should take similar photos or videos.
The OSHA inspector will likely ask to interview employees. The presence of your OSHA representative and attorney is typically only permitted during interviews of managers, but you can meet with employees before their interview. Tell them they have a right to have their own representative present for their interview. Counsel employees to avoid commenting on issues for which they do not have first-hand knowledge or speculating on matters that fall outside of their area of expertise. Tell them to be honest, to only answer the question that is asked, and that it’s OK to respond, “I don’t know” if they don’t know the answer.
In addition to taking written statements, OSHA may ask to record employee interviews. OSHA can only record with the consent of the individual speaking, and it is advisable that you do not give consent to have your statements recorded. But even if the conversation is not recorded, whatever your OSHA representative and others say during the walk-around or other parts of the inspection are part of the record and can be used against you. Generally speaking, the less said during an OSHA inspection, the better.
Closing Conference
A closing conference will be held at the conclusion of the OSHA inspection. The compliance officer will discuss their findings and next steps. If you learn you will be fined or cited for violations, it is advisable that you immediately contact an OSHA attorney to discuss your options.
The OSHA and construction lawyers at Pappas Grubbs Price PC assist construction employers with the complex OSHA compliance process and help clients assert their rights throughout the OSHA inspection process. With offices in Houston, Dallas, Austin, and San Antonio, we have successfully represented construction companies across Texas and beyond in OSHA investigations and litigation. To speak to an OSHA attorney near you, contact Pappas Grubbs Price.
