Despite OSHA's efforts, construction's death rate hasn't budged in 10 … – Construction Dive
Let Construction Dive’s free newsletter keep you informed, straight from your inbox.
Topics covered: commercial, infrastructure, design, green, regulation, multifamily construction, and more.
Topics covered: virtual design and construction, material and product innovations, productivity improvements through technological advancements, and more.
Topics covered: project delivery methods, contractor profiles, case studies of innovative projects and news from Capitol Hill, and more.
Topics covered: labor shortage, recruiting & retaining workers, OSHA & Department of Labor rulings, safety protocols, and more.
Illustration: Cathryn Virginia for Industry Dive
The death toll in construction hasn’t changed in the past decade, raising important questions about the effectiveness of OSHA and what it would take to save more lives, according to an analysis by Construction Dive.
Workers continue to die at the same rate — 10 out of every 100,000 workers didn’t come home between 2011 and 2020 — highlighting weak enforcement, meager inspections and fines, and the opioid epidemic. Funerals totaled 1,008 in 2020, the most recent data available. And three in five workers who perished consistently died from the same causes, known as the “Fatal Four.”
Falls and electrocutions still account for the most fatalities, along with accidents called “struck-bys” and “caught-in/betweens,” which cover a wide range of dangers, such as when a vehicle, piece of machinery or material strikes or traps a worker.
OSHA told Construction Dive it focuses much of its efforts in construction on education around the Fatal Four. But despite the agency’s best efforts the share of workers dying from those well-known hazards remained stagnant from 2011 to 2020 while the workforce grew 31%.
For OSHA to become a feared enforcer, experts say the agency would need to increase inspections exponentially, enforce fines more strictly, wield more tools at its disposal and expand preventative consultations. All of those factors require more money and staff.
With last year’s staff levels, for example, it would have taken inspectors 236 years to visit every workplace in the U.S., according to union group AFL-CIO’s Death on the Job report. Fines would need to rise above the cost of doing business and find their targets, especially among small contractors, which account for about 90% of the industry and often fly under the radar.
OSHA would also need a broader mandate. Voluntary programs — such as jobsite consultations — would need to encompass more than the builders who go beyond the bare minimum. In addition, workers’ compensation laws in some states might need to change to address the strong link between fatalities and the wait time for wage replacement.
OSHA targets high-risk hazards with its limited resources. The agency is on a hiring spree, after 12 years of steady staff reductions. And health and safety regulations were not designed to help save the increasing number of construction workers who die on the job from drug overdose and suicide.
Despite OSHA’s efforts, the agency still faces a Hydra of obstacles.
Many contractors with multiple serious fines for incidents, injuries or deaths play “catch me if you can,” by dodging fines and keeping their costs low, said Jay Bradshaw, executive officer of Nor Cal Carpenters Union, which represents 37,000 workers across 22 affiliated unions.
“That’s a repeat offender — that clearly part of their business model is that they just bake in” the cost of fines, he said.
Even when they get caught, the price tags for violations are too low to deter bad actors. The average federal OSHA penalty for a serious breach was $4,460 last year, the AFL-CIO report found. The median penalty for death on a jobsite was $9,753 — roughly the cost of 20,000 board feet of lumber.
Complicated and hazardous work led to the majority of deaths on commercial jobsites. In 2020, almost a quarter of workers who died were in residential construction or specialty contractors who worked on residential projects.
Competition, inflation and supply-chain snags are all contributing to a race to the bottom. The lower the bid, the higher the chance of winning. When developers don’t demand contractors live up to certain safety standards, they allow offenders to undercut other contractors, said Ken Simonson, chief economist for Associated General Contractors of America.
Carol Sigmond, partner at national law firm Greenspoon Marder, who represents many subcontractors, confirmed, “For the contractors who periodically close up and re-open, the fines are just a cost of doing business.”
Worse, OSHA often fails even to collect its fines. Employers across all industries skirted $100 million in fines between fiscal years 2018 and 2020, according to a Bloomberg Law investigation. One in five employers don’t pay up, Bloomberg found. That meant OSHA wrote off about 14% of the fines from that period, according to data OSHA shared with Construction Dive via email.
The agency has worked a little with the U.S. Department of Justice to improve its debt collection.
“We are planning some inroads that, although they may be small, we’re still trying,” said Scott Ketcham, director of OSHA’s directorate of construction. He emphasized that OSHA is an enforcement agency, not punitive.
OSHA is striving to reverse years of staff reductions — down 21% for federal and state inspectors from 2011 — and is now hiring the most in years, Ketcham said. The agency needs more people and more money to improve worker protections, he said.
Under the Occupational Safety and Health Act of 1970 — which formed OSHA — a safe workplace is the employer’s responsibility, but the agency sets the bar and enforces the rules.
The agency doesn’t get to dictate its own budget and scope. OSHA lost $12.5 million to sequestration in 2013, for example, then saw its budget increase by $24 million in 2020. In fiscal year 2022 OSHA requested 155 new federal inspectors. Congress funded salaries for 85, according to Bloomberg.
But it’s not the job of these inspectors to decide who can stay in business, said Kevin Cannon, senior director of safety and health services for AGC. They offer employers a carrot in terms of education of hazards, and a stick in terms of penalties.
“Our goal is to protect workers and make sure that employers are protecting their workers as well,” OSHA’s Ketcham said.
He also pointed out that jobsite deaths from overdoses and suicides, just 3% in 2011, now account for one in 10, and both causes fall outside OSHA’s standards for a safe workplace.
At first glance it’s surprising: There is no correlation between higher average fines and lower death rates, according to John Mendeloff, professor at the graduate school of public and international affairs at the University of Pittsburgh.
The unpleasant truth is that fines aren’t high enough to curb risky decisions.
“We’re talking about, for example, the difference between an average penalty of $1,000 versus say $2,000,” he said. That kind of gap doesn’t seem to make a difference. “Now that doesn’t mean, for example, that if you get a $20,000 or $50,000 penalty, that it doesn’t have an effect. But those are pretty rare.”
Under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, OSHA fines rise with inflation every Jan. 15. Prior to that, penalties hadn’t increased since 1990. New legislation would be needed to make fines really bite.
OSHA could not quantify how often penalties are contested, reduced or removed.
However, in September, OSHA expanded the Severe Violator Enforcement Program (SVEP) — designed to reform repeat offenders with serious violations — to include more employers and standards. Nevertheless, OSHA doesn’t have concrete data for the number of active employers in SVEP, as the small employers can easily vanish.
Those small businesses can more easily close down and pop up under a new name to avoid penalties. That’s harder for large builders to do.
For small builders, sometimes the owner is hammering nails alongside their six or seven employees. The owner may wear the hats of HR, payroll and safety director, said Chris Cain, executive director for the Center for Construction Research and Training, known as CPWR.
The vast majority of U.S. contractors are small businesses with fewer than 20 workers, Cannon said. And hazards more often go unnoticed or uninspected on small jobsites.
“The million-dollar question is how do you get in touch with those folks?” Cannon said.
Employers don’t fear the whip crack enough, said MK Fletcher, safety and health specialist for AFL-CIO.
“What it comes down to is employers need to know that OSHA could show up to their work site and could cite them and hold them accountable,” Fletcher said. “And those penalties need to be meaningful.”
Carpenter’s union executive Bradshaw said in some extreme cases threats of criminal charges over potential manslaughter or criminal negligence could sharpen OSHA’s enforcement teeth.
OSHA has always had the power to recommend criminal charges for egregious negligence. But since 1970, only 115 worker deaths have been criminally prosecuted, according to the AFL-CIO’s report.
A major reason for that in construction is ignorance. Most police departments and prosecutors don’t have the construction knowledge to distinguish between gross negligence and an accident, said Sigmond, the lawyer. Even then, it’s the district attorney’s decision to prosecute in an industry known for hazards.
A New York state bill that could change that has landed on Gov. Kathy Hochul’s desk. Named after deceased worker Carlos Moncayo, the bill would raise minimum corporate fines to $300,000 for misdemeanors and $500,000 for felonies. The state’s current limit is $10,000.
The legislation is unique, but Sigmond, who’s based in New York, said it would incentivize prosecutors to go after cases, or to make an example out of a scofflaw employer.
OSHA’s Ketcham described the daunting challenge of visiting the roughly 9 million U.S. worksites with 800 or so federal compliance officers as “a big task.”
However, the more compelling question is do jobsite visits make a difference? The potential answer is yes, but state and federal OSHAs would have to hire over 1,000 more staff to move the needle, according to a Construction Dive analysis.
OSHA’s inspections have dropped gradually since 2009 and were 60% lower for the construction industry in 2020. That decline hardly made a difference in the fatality rate.
“If you increased inspections by 60%, you get about a 5% decrease in fatalities in construction,” the University of Pittsburgh’s Mendeloff said. Based on his math, that increase in inspections in 2020 could have saved 50 construction workers’ lives.
OSHA visiting one of a contractor’s many jobsites likely doesn’t influence its safety protocol. Even with the threat of citation, builders will tell you it’s not the low odds of an inspection that encourages best practices.
“It’s not the sort of lottery-winning-esque risk of an OSHA inspector coming to your jobsite and writing you a fine that motivates you to be safe,” said Brian Turmail, vice president of public affairs and strategic initiatives for AGC. “You’re worried about what your workers’ comp rate is going to be. Your ability to insure your work.”
For most big contractors, OSHA is a resource, setting baseline standards. And data show they usually take that responsibility seriously.
Turmail stressed that maintaining a safe jobsite is not just the ethical thing to do, it’s good business. Lower insurance and workers’ compensation premiums help contractors bid lower.
General contractors upholding the highest standards for themselves and their subcontractors can help weed out those with dangerous track records.
“Fortunately bad actors leave trails. There’s evidence out there. All you’ve got to do is ask them for it,” said Greg Sizemore, vice president of health safety, environment, and workforce development at Associated Builders and Contractors.
Some say rule-breakers are easy to spot, but others say there’s only so much a general contractor can do to ensure all employers on the job are up to snuff.
Sizemore also emphasized planning ahead of a project to identify hazards before construction begins. OSHA offers employer-requested consultations before bulldozers break ground. Federal OSHA relies heavily on those consultations to highlight dangers and prevent accidents.
Federal OSHA is only half of the enforcement picture.
Twenty-nine states and territories have their own OSHA programs that enforce safety standards as strict or stricter than federal rules — though seven of those plans cover only state and local government workers.
Some states “send out letters to firms with high losses based, say, on their workers’ comp data. And they’ll tell them, ‘You can either request a consultation or get an inspection,’” Mendeloff said.
His research found workers’ comp is tied most closely to fatality rates. States that exempt small contractors from carrying workers’ comp insurance post higher fatality rates, especially at firms with fewer than 10 employees.
Additionally, in states with their own OSHA programs, fatalities have a stronger association with inspections and consultations. By contrast, in states that let federal OSHA enforce, fatalities align closely to workers’ comp laws. For example, states with seven-day waiting periods before wage replacement have higher fatality rates than states with three-day waits, Mendeloff found.
That implies workers who don’t have the option to get paid while recovering from an injury wait longer without pay or go back to work injured. Those states likely have worse safety records overall, Mendeloff found.
Workers’ compensation laws are outside of OSHA’s purview, but Mendeloff stressed the two places he’d look to improve safety would be lowering workers’ comp wait times and expanding consultation offerings.
Construction has also succumbed to the opioid epidemic. In 2020, the Bureau of Labor Statistics (BLS) recorded 77 onsite overdoses, compared to just 7 in 2011.
The increased use of opioid painkillers could be linked to injuries, but when it comes to jobsite accidents versus the general epidemic abuse, it’s hard to parse the numbers.
Mendeloff’s research suggests many states fail to properly capture the number of onsite injuries.
The lack of confidence in that statistic is renowned. Fatalities are final. Injuries can go undetected, especially when workers fight through the pain to avoid missing a day’s wages waiting for workers’ comp, Mendeloff said.
In 2008, the U.S. House or Representatives noted the country had trouble finding the exact number of reported injuries and illnesses across industries. BLS has considered changes, such as turning to employees to report those numbers. Still, the BLS has not made a decision on how to update injury reporting.
Another worrying trend is the increase in workers who take their own lives. In 2020, the Center for Disease Control found construction workers had the second-highest suicide rate of all industries, at 45 per 100,000; 27 more than the national average.
Construction is full of hazardous jobs: working from heights, with heavy machinery, on major roadways, in trenches and with dangerous substances.
Nonetheless, both OSHA and major construction groups maintain that all jobsite deaths are preventable.
“Why is it in my 40-plus years being in construction, if there’s ever an incident, there’s always something that wasn’t done correctly?” said Sizemore, who, in addition to his role at ABC, also sits on OSHA’s construction advisory committee.
Asked why the rate of incidents hasn’t gone down, he said, “Maybe because the responsibility stops at the worker and doesn’t go all the way up to the top of that organization.”
When it doesn’t go to the top, OSHA’s safety net has holes too big to catch everyone.
Correction: An earlier version of the “22 states and territories have OSHA-approved state plans” graphic contained incorrect information about the total number of plans. Idaho is under the federal plan. Michigan and Indiana have state plans.
Keep up with the story. Subscribe to the Construction Dive free daily newsletter
Get the free daily newsletter read by industry experts
The free newsletter covering the top industry headlines