As I wrote last week, workers in this country are facing an epidemic of trench collapse deaths this year and OSHA is taking note.
Today OSHA issue a Press Release announcing that it will “launch enhanced enforcement initiatives to protect workers from known industry hazards.” According to OSHA Assistant Secretary Doug Parker,
“The Occupational Safety and Health Administration is calling on all employers engaged in trenching and excavation activities to act immediately to ensure that required protections are fully in place every single time their employees step down into or work near a trench. In a matter of seconds, workers can be crushed and buried under thousands of pounds of soil and rocks in an unsafe trench. The alarming increase in the number of workers needlessly dying and suffering serious injuries in trenching incidents must be stopped.”
According to OSHA, 22 workers have been killed in trench collapses this year, which equals the full year toll in 2019 and 2020 and more than last year’s total of 15.
5 incidents this year have been double fatalities. Two workers, aged 20 and 39, were killed in a trench late last month in Jarrell, Texas, when the unprotected trench more than 20 feet deep collapsed upon them as they worked. Earlier this year, OSHA cited a company after a worker was killed in a trench shortly after escaping a partial collapse in the same trench.
OSHA already has a National Emphasis Program for trenches and excavations where compliance officers will perform more than 1,000 trench inspections nationwide, and will stop by, and inspect, any excavation site during their daily duties to prevent trench collapses.
So what’s new?
The Press Release states that
To stress the dangers of disregarding federal workplace safety requirements for trenching and excavation work, OSHA enforcement staff will consider every available tool at the agency’s disposal. These actions will place additional emphasis on how agency officials evaluate penalties for trenching and excavation related incidents, including criminal referrals for federal or state prosecution to hold employers and others accountable when their actions or inactions kill workers or put their lives at risk.
So, higher penalties? More criminal prosecutions? Although OSHA’s maximum penalties are set by law, the agency has discretion over how high individual penalties are, how many violations will be cited, and whether penalties will be “serious” or “willful,” which carry much higher penalties.
OSHA’s hands are more tied when it comes to criminal prosecutions. The Occupational Safety and Health Act (OSHAct) only allows a criminal prosecution when there has been a willful violation related to a workplace fatality. Those cases are almost always referred to the Justice Department which then must decide whether to prosecute. Because the OSHAct makes a criminal prosecution a misdemeanor instead of a felony, DOJ is often reluctant to put the resources into prosecuting such cases.
One thing OSHA can do is to work more closely with local prosecutors to pursue homicide cases. A Washington construction employer just served jail time for a fatal trench collapse. Further back, the Manhattan district attorney won a manslaughter conviction against the general contractor, Harco Construction, for the 2015 trenching death of a young undocumented immigrant construction worker, 22-year old Carlos Moncayo. The foreman for the excavation company, Sky Materials, was convicted of criminally negligent homicide and reckless endangerment, and sentenced to one to three years in jail.
The New York state legislature has passed Carlos’s Law which would significantly increase penalties against companies for construction incidents that result in criminal convictions. Governor Kathy Hochul is considering whether to sign the bill.