By Brent I. Clark, Mark A. Lies, IIAdam R. YoungDaniel R. Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  OSHA has recently released its National Emphasis Program on Trenching and Excavation, CPL 02-00-161 (October 1, 2018), which requires OSHA to open inspections against any contractor involved in trenching or excavation work and report information back to the Area Office and national online system.

OSHA has long maintained construction standards related to trenching and excavation safety, including 1926.650 (Scope, application, and definitions applicable to this subpart), 1926.651 (Specific Excavation Requirements), and 1926.652 (Requirements for protective systems).  In 2017, the regulation governing cave in protection (1910.655(a)(1)) alone was cited against more than 500 employers.  On top of OSHA citations, trenching and excavation fatalities have been a source of criminal prosecution by federal and state authorities.  To effectuate enforcement of this hazard, OSHA has released a new National Emphasis Program, replacing OSHA’s earlier Special Emphasis: Trenching and Excavation, CPL 02-00-069 (September 19, 1985).

In its news release on the Directive, Deputy Assistant Secretary of Labor for OSHA Loren Sweatt said “removing workers from and helping workers identify trenching hazards is critical….  OSHA will concentrate the full force of enforcement and compliance assistance resources to help ensure that employers are addressing these serious hazards.”  The NEP indicates that according to Census of Fatal Occupational Injuries (CFOI) data, there were 130 fatalities recorded in trenching and excavation operations between 2011 and 2016.  Private construction industry accounted for eighty percent, or 104, of those fatalities.  OSHA noted that it has a series of compliance assistance resources to help keep workers safe from trenching and excavation hazards.  The trenching and excavation webpage provides information on trenching hazards and solutions.

The 2018 NEP mandates that the Area Offices, beginning on October 1, 2018 roll out the Program with a “three-month period of education and prevention outreach.” During that period, OSHA will continue to respond to complaints, referrals, hospitalizations, and fatalities.

“Enforcement activities will begin after the outreach period and remain in effect until canceled.”  The NEP mandates intense new scrutiny of trenching and excavation operations.  The Program requires compliance officers (CSHOs) to initiate an inspection any time they observe a trench or excavation, whether observed during an inspection or merely in the course of their workday travel.  Accordingly, employing its Multi-Employer Worksite Doctrine, OSHA will be required to record and open an inspection against each employer who may have OSHA liability over trenching and excavation operations, including general contractors, subcontractors, and independent contractors.  Compliance officers must also promptly notify their Area Office of the trenching operation, state of the excavation, and any contractors involved.  They also must take photographs to document the worksite.

All enforcement activities by compliance officers must be recorded in OSHA’s online information system (OIS), creating a searchable database of trenching and excavation information.

Accordingly, construction contractors conducting trenching and excavation operations will face a greatly increased chance of an OSHA inspection and regulatory scrutiny, especially those operations that are located on major thoroughfares and high-profile locations or in areas likely to be travelled by OSHA inspectors.  Employers should consult with safety professionals and outside counsel to ensure compliance with the relevant OSHA Standards.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Centers for Disease Control and Prevention’s (CDC) recent report indicates that vector-borne diseases are a rising causes of illness for outdoor workers in the United States.  Vital Signs: Trends in Reported Vectorborne Disease Cases — United States and Territories, 2004–2016 (May 4, 2018).  As summer approaches, employers in the construction, landscaping, outdoor hospitality, and other outdoor industries should take steps to inform and protect their workers from vector-borne disease.

In its report, the CDC found that the most common vector-borne pathogens in the United States are transmitted by ticks or mosquitoes, including those causing Lyme disease, Rocky Mountain spotted fever, and West Nile, dengue, and Zika virus diseases.  This CDC report examined trends in nationally reportable vector-borne diseases between 2004–2016. We have previously written about Zika, including, Zika – Employer Liability Issues and Zika Virus Spreading to United States: OSHA Provides Recommendations.

Due to the outdoor nature of certain types of work, such as construction, landscaping, and outdoor hospitality work such as at golf courses and pools, employers should be mindful of informing their employees on how to protect themselves from vector-borne diseases, how to recognize the symptoms of vector-borne diseases, and what to do if they believe they have contracted a vectorborne disease.

According to the CDC, the following diseases are currently reported as being transmitted somewhere in the United States, including Puerto Rico, the U.S. Virgin Islands, and American Samoa:

  • Lyme disease;
  • West Nile, dengue and Zika virus diseases;
  • Plague (Yersinia pestis); and
  • Spotted fever rickettsioses.

CDC notes that malaria and yellow fever are no longer transmitted in the United States but have the potential to be reintroduced.

The Occupational Safety and Health Administration (OSHA) provides limited guidance (Lyme Disease, Zika) for employers in the construction or outdoor-services industries. However, this guidance is generally applicable to help prevent any vector-borne disease:

  • Avoid brushy, overgrown grassy, and wooded habitats;
  • Remove leaves, tall grass, and brush from areas surrounding work areas or residential areas, thereby reducing tick, deer, and rodent habitat;
  • Eliminate sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever possible to reduce or eliminate mosquito breeding areas. Train workers about the importance of eliminating areas where mosquitos can breed at the worksite;
  • Wear long-sleeved shirts and tucking pant legs into socks or boots to prevent ticks and mosquitos from reaching the skin;
  • Wear high boots or closed shoes that cover the entire foot;
  • Wear a hat with mosquito netting;
  • Spray insect repellents (containing DEET) on exposed skin, excluding the face. Use permethrin on clothes to kill ticks on contact) (don’t forget hazard communication training);
  • Wear light-colored clothing so that ticks can be more easily seen and removed before attachment occurs;
  • Check the body carefully for ticks or mosquito bites; if ticks are found, promptly removing them with tweezers. (DO NOT use petroleum jelly, a hot match, nail polish, or other products to remove the tick).

According to the CDC, between 2004-2016, a total 642,602 cases of vector-borne diseases were reported.  During this time, tick-borne bacterial and protozoan diseases more than doubled, from over 22,000 in 2004 to over 48,000 in 2016. Lyme disease accounted for 82% of all tick-borne disease reported across the continental United States. Mosquito-transmission in Puerto Rico, the U.S. Virgin Islands, and American Samoa accounted for most reports of dengue, chikungunya, and Zika virus diseases, while West Nile virus, transmitted by mosquito, was reported across the continental United States.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.