What Construction Employers Can Expect During an OSHA Fatality Inspection

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In December 2024, the U.S. Bureau of Labor Statistics released its 2023 Census of Fatal Occupational Injuries.  The census showed that during 2023 there were 5,283 fatal work injuries recorded in the United States.  Of that total, 1,075 were in the construction industry, which had more fatalities than any other sector.  Falls, slips, and trips accounted for 39.2 percent of construction-related deaths, with transportation incidents making up 22.3 percent.  Most fatal falls in construction—260—were from heights between 6 and 30 feet, while 67 were from heights of more than 30 feet.  Falls from portable ladders and stairs were the primary source of 109 fatalities in construction. 

The Occupational Safety and Health Administration (OSHA) investigates each workplace fatality (either the federal agency or, in states that operate their own OSHA-approved workplace safety and health plan, the state agency that enforces the plan; for ease of reference we will refer to both as OSHA).  During the inspection, OSHA will go on site and scrutinize the company’s safety practices, examining the accident location, interviewing employees, and reviewing injury logs, safety and health programs, and training and maintenance records.  In almost every case involving a death, the agency will eventually issue citations. 

As construction can be a dangerous industry, companies and contractors need to redouble their commitment to safety.  They should also become familiar with OSHA inspection and citation procedures so they can assist in the investigation and reduce potential liability.

Following is an overview of what to expect during a fatality inspection:

Reporting to OSHA.  Employers must contact OSHA within eight hours if a work-related accident results in an employee’s death.  Since an alleged “repeat” or “willful” violation of an OSHA standard that may have caused a fatality can lead to criminal charges, it is advisable to consult with legal counsel at the same time.

Communications.  The company should designate a liaison to the next of kin to offer support and assistance.  In addition, the company should work with a crisis communications professional to prepare a public statement, subject to approval by legal counsel, for use when the media calls.  It is also important to provide compassionate support to co-workers.

Arrival of OSHA.  Upon arrival at a workplace ready to open an inspection, the compliance officer will present agency credentials, including a photo ID.  Employers may call OSHA if there is any reason to believe the visit is not an official inspection.  OSHA does not routinely obtain warrants in advance of an inspection.  If the employer refuses access, OSHA will almost always ask a judge to issue a warrant.  An employer considering denying entry must weigh the potential benefits of doing so against the likelihood that when the compliance officer returns with the warrant, he or she will carry out a more rigorous inspection.

Opening Conference.  The compliance officer will begin the inspection by holding an opening conference with the employer’s representatives and, if the employees are represented by a union, an employee representative.  During this conference, the compliance officer and employer’s representatives may discuss the scope of the inspection, any trade secret areas, and procedures for conducting employee interviews and producing documents.

Inspection.  Next comes the “walk around” inspection of the accident location and possibly other work areas, during which the compliance officer seeks to determine if the employer is in compliance with specific standards as well as with the general duty requirement to provide a safe and healthy work environment.  The employer’s representatives should accompany the inspector at all times, taking notes on anything the inspector observes and says.  Additionally, if the inspector takes a photo or video of something, the employer’s representatives will want to take a photo or video of the same thing, from multiple angles if possible.  If the inspector measures or diagrams something, the employer’s representatives will want to do the same.  As the compliance officer proceeds through the area, he or she will usually conduct brief “over the shoulder” interviews of employees.

Employee Interviews.  The compliance officer will schedule lengthier interviews of hourly and management personnel under circumstances that will not interfere with their duties.  While company representatives cannot attend the interview of an hourly employee unless requested by the employee, the employee should be debriefed in a nonthreatening way about his or her interview to determine OSHA’s concerns.  Company representatives can and should attend management employee interviews, taking notes.  Any written statement to be signed by a company representative should be reviewed by legal counsel.

Records.  The compliance officer will ask to review various records and will check to make sure OSHA’s poster is displayed.  Any documents that may reveal trade secrets should be labeled “CONFIDENTIAL-TRADE SECRET.”

Closing Conference.  At the conclusion of the inspection, the compliance officer will hold a closing conference to inform the employer of possible violations noted and suggested abatement procedures.  The compliance officer will discuss the citation process and provide an estimate of when the employer may hear further from OSHA.  Any citation would be issued within six months from when the alleged violation occurred.

Notice of Contest.  After the compliance officer submits a report, OSHA will—almost always in a fatality case—issue citations, proposing monetary penalties and noting abatement deadlines for each alleged violation.  If the employer does not agree with a citation, it may hold an informal conference with OSHA.  The informal conference provides an opportunity for management and legal counsel to convey that the company has taken the accident seriously and implemented changes to prevent a similar incident in the future.  But if a citation cannot be resolved informally, it is critical that the employer file a notice of contest in a timely manner.

A workplace fatality is traumatic, and even though no one wants to think about it, companies should plan ahead for a worst-case scenario.  The best way to be ready is to make OSHA compliance a top priority day in and day out.

If you would like further information about this or related matters, please contact Maynard Nexsen’s Employment & Labor Law group.