As you know, the construction industry remains a major target for OSHA inspections and enforcement. Half of OSHA’s Fiscal Year 2022 “Top 10” Violations relate to construction industry standards:

OSHA reportedly released its unofficial list of Top 10 Violations for Fiscal Year 2023 during October’s National Safety Conference Congress and Expo. Again, construction industry standards featured prominently:

According to OSHA – even with a slight downturn in the number of inspections during the height of COVID-19 – OSHA averaged approximately 30,000 total inspections per year from 2017 through 2022. On average during this period, roughly 56% of OSHA’s inspections were “unprogrammed.”

It remains imperative for contractors to remain vigilant when it comes to employee health and safety. Prioritizing employee health and safety is not only the right thing to do, it is a business necessity. OSHA continues to follow an aggressive enforcement approach. Employers must be careful to ensure that they have established appropriate health and safety plans and to properly implement and administer those plans, provide regular training, and keep accurate and detailed records. Employers should also take proactive steps so that they are prepared in the event of an inspection. Consultation with competent counsel is recommended, as this is a dynamic area that continues to evolve.

For example, the OSHA civil penalties undergo annual inflation adjustments. For 2023, the maximum OSHA penalties for serious and other-than-serious violations increased to $15,625 per violation. For willful and repeated violations, the maximum penalty is now $156,259 per violation.

Not only that, OSHA now has more latitude to assess “instance-by-instance” violations. “Instance-by-instance” refers to OSHA’s ability to enforce safety standards and issue citations for each individual citation. OSHA can use instance-by-instance enforcement for “high-gravity serious violations specific to falls, trenching, machine guarding, respiratory protection, permit required confined space, lockout tagout, and other-than-serious violations specific to recordkeeping.” Clearly, OSHA is targeting many of the Top 10 Violations as well as recordkeeping requirements.

Earlier this year, OSHA also obtained power to issue special visa certifications “during its workplace safety investigations” whenever OSHA identifies qualifying criminal activities, including forced labor, trafficking, and obstruction of justice. OSHA can now issue special visas to “allow victims of specific crimes to help law enforcement detect, investigate and prosecute crimes without fear of retaliation based on their immigration status.”

More recently, in August of 2023, the United States Department of Labor announced a proposed rule designed to revise regulations concerning who can act as a representative of employees at OSHA workplace inspections. Under the proposed rule, employees may authorize either: (1) an employee; or (2) a non-employee third-party if the OSHA Compliance Officer determines that the third-party is reasonably necessary to conduct an effective and thorough inspection. In this context, third-parties are not necessarily limited to industrial hygienists or safety engineers. According to the Federal Register, this proposed rule reflects the fact that OSHA “has preliminarily determined that the proposed changes will aid OSHA’s workplace inspections by better enabling employees to select a representative of their choice to accompany the [OSHA Compliance Safety and Health Officer] during a physical workplace inspection.”

As we all enjoy the Fall and prepare for Winter, contractors should dedicate time to audit their current practices, policies, and procedures when it comes to worker health and safety, as well as their preparedness for OSHA inspections. With contractors under the microscope in this climate of aggressive enforcement, compliance with applicable OSHA requirements is absolutely critical.

UCANE Construction Outlook, November 2023 | Legal Corner