By A. Scott Hecker, Adam R. Young, Patrick D. Joyce, James L. Curtis, Daniel R. Birnbaum and Craig B. Simonsen

Seyfarth Synopsis: OSHA announced enhanced enforcement and oversight efforts following an “alarming rise” in trenching fatalities, intended to draw attention to construction worker safety and present issues and solutions. Current OSHA enforcement guidelines require inspectors to open an inspection every time they see an open trench or excavation, regardless of whether a hazard is readily apparent.

The first half of 2022 saw an alarming increase in trench fatalities, increasing to 35 construction workers and greatly exceeding the 15 fatalities in 2021. In 2023, OSHA has redoubled its enforcement efforts to help prevent trenching accidents.

OSHA currently highlights trenching hazards on its website, to “[p]revent trench collapses and save lives.” Because employees may be quickly engulfed in significant amounts of material during trench collapses, OSHA recommends steps for controlling trenching hazards and keeping excavation work safe:

  • Ensure there is a safe way to enter and exit the trench;
  • Trenches must have cave-in protection – remember to Slope, Shore, Shield;
  • Keep materials away from the edge of the trench;
  • Look for standing water or other environmental hazards; and
  • Never enter a trench unless it has been properly inspected.

Based on OSHA’s news alert, enforcement related to trenching fatalities may be focused on ingress and egress, protective measures designed to prevent cave-ins, audits on nearby hazards that may create a safety issue, and inspection efforts by employers. Accordingly, employers should focus on these issues to reduce potential liability.

Any employer who has employees at a project that uses trenching or excavation should anticipate OSHA activity, and consult appropriate legal counsel to ensure that they are fully compliant.   Since 2018, federal OSHA has maintained a National Emphasis Program on Trenching and Excavation that requires OSHA compliance officers to open an OSHA inspection any time they observe an open trench or open excavation, “regardless of whether or not a violation is readily observed.”  Accordingly, any on-site OSHA compliance officer will open a separate inspection related to the trench if one is present. Even more impactful, any OSHA compliance officer driving by a construction site where there is an open trench is supposed to pull over, get out his camera, and open an OSHA inspection.

OSHA’s trenching and excavation page includes additional resources and publications to ensure trench and excavation safety, including:

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