After months analyzing OSHA’s safety data, Construction Dive’s findings are discouraging: The death rate for U.S. construction workers has flatlined for at least a decade. Injury rates from the four most common hazards also haven’t declined. And OSHA’s program for serial offenders hasn't snagged all of the worst contractors in commercial or residential construction.
Moreover, the quality and value of OSHA data for initial violations are widely criticized by the industry, citing lag times and the frequency that citations and fines are challenged, and later reduced or erased. OSHA could not provide final figures for the total amount of citations that were resolved or paid.
The rate of fatal injuries in construction is virtually unchanged
“It’s no secret that when OSHA shows up it’s too late to be safe,” said Ron Taylor, a lawyer at Venable in Baltimore who has represented Whiting-Turner for over 30 years.
Turner, Whiting-Turner were inspected the most by OSHA
Taylor has worked for years to reduce Whiting-Turner’s violations. The Baltimore, Maryland-based contractor had 80 initial violations between 2012 and 2021 and fines of $186,119. Taylor said he trimmed those numbers to 50 violations and the company paid just $39,705.
“All litigation has the opportunity, after initiated, to be resolved … the vast majority settle or resolve before hearing,” he said.
In response, OSHA said its “goal is to get employers to fix the hazards. Sometimes, we lower the penalty to get protections earlier … so focusing on the fines is not always the best measure. When setting a penalty, OSHA begins with the maximum penalty, then adjusts based on a variety of factors.”
OSHA said it “continues to look at ways to improve its data analysis and collection to better protect workers and ensure equity in enforcement, including making sure sufficient data and information are available for use in targeting enforcement and compliance assistance.”
Nevertheless, a major challenge to improving safety is that there is no universally accepted, publicly available metric for construction that measures how safe a company or jobsite is, which hobbles regulators trying to craft more targeted standards and programs. Bad data also make it harder for workers and project owners to sidestep contractors that run risky jobsites.
The Fatal Four still account for same portion of worker deaths
A look at the numbers
Construction Dive studied the country’s 30 largest general contractors by revenue including subsidiaries but excluding joint ventures. Addresses were cross-checked for accuracy. Many companies are privately held and not required to disclose such details, but almost all provided them. The results were shared with OSHA as well as with the 10 contractors with the most initial violations.
Measuring safety on sites is challenging. Construction Dive analyzed both total violations and violations per inspection over the past decade, but focused on violations per inspection in order to more fairly compare companies that had been inspected by OSHA at different rates.
Construction Dive also found issues with accuracy, consistency and upkeep in OSHA’s database. Violations per inspection was deemed the more reliable metric based on the time lag between when a violation was contested and resolved versus when it’s recorded in a database.
Every contractor interviewed claimed OSHA’s initial violations were an unreliable safety benchmark because final violations and fines were much lower.
Moreover, initial violations do “not reflect the safety culture and climate of a project; the volume or type of work being performed; and do not reflect the ultimate resolution of citations,” said Cindy DePrater, New York City-based Turner Construction’s chief environmental health and safety officer. As America’s largest contractor, Turner had the most OSHA inspections during the decade analyzed by Construction Dive, but one of the lowest number of citations per inspection.
The number of inspections for the country's largest contractors had no bearing on violations, demonstrating that having a high number of inspections does not necessarily correlate with having higher violation rates. Only one in three inspections ended with a citation, indicating the largest players know the rules and most have solid safety programs.
To keep workers safe, contractors rely on a mix of some type of incident tracking, preventative practices, OSHA guidelines, employee training and technology-based tools. Providence, Rhode Island-based Gilbane, for instance, sees OSHA as an important partner in its safety efforts, but also has plans that exceed OSHA regulations in many areas, according to spokesperson Lynn Rasic.
“Safety is Gilbane’s highest priority on every project … investing in consistent and quality training for both labor and project management staff contributes to stronger safety and quality management across the construction industry,” she said.
Most companies didn't receive violations with every inspection
The company with the most initial violations per inspection was Los Angeles-based Tutor Perini Corp. with 1.5 violations per inspection. (Read an article exploring the contractor’s safety record in a later installment.)
Tutor Perini also maintained initial violations were not an accurate safety metric, but did not provide its final numbers nor comment on its violations per inspection.
Tutor Perini declined to be interviewed but defended its track record in a statement: “As one of the largest civil works contractors in the United States, we regularly compare our safety performance against industry averages, and our overall safety record is strong.”
The holy grail of safety measurements, experts agreed, is workers’ compensation insurance rates, which increase with injuries and hit a firm’s bottom line. The base experience modification rate is 1 — lower is good, higher bad. But these rates are not publicly available and laws vary by state, making comparisons difficult.
In the 1990s, OSHA attempted to use workers’ compensation numbers with its Maine-200 programs, but abandoned them because it couldn’t get the data it needed, according to Whiting-Turner’s lawyer Taylor.
OSHA did not comment on why the program was disbanded, but agreed that worker’s compensation data is valuable. One major obstacle, however, is mustering the political will to align state laws that vary widely.
“OSHA recognizes that data from workers' compensation insurance programs can be helpful in assessing safety and identifying hazards,” the agency said, “OSHA will look at data where publicly available, for research to evaluate and help improve worker safety and health.”
Other safety metrics, such as the Total Recordable Incident Rate is used by contractors to track safety numbers. The figure is calculated by tallying total injuries multiplied by 200,000, divided by total hours worked.
However, a report by the Construction Safety Research Alliance in 2020, for example, claims that measure lacks precision for fatalities and is statistically invalid for comparing businesses.
Another metric, the Lost Time Injury Rate, or LTIR, measures the rate of injuries that result in a lost day’s work. However it is also faulted as a lagging safety indicator. A study by SafeWork Australia in 2013 found Lost Time Injuries also record injuries that can vary in severity.
“Of the various performance data employed across the business, government and not-for-profit sectors, it is increasingly clear that the use of LTI rates is particularly problematic and deserves special attention,” the authors wrote.
The bottom line
In an industry where the lowest bid often wins, safety measures can add cost and time to a project.
All of the contractors interviewed stressed the need to create a culture of safety with programs that are stricter than OSHA regulations. However, when asked for recommendations to make OSHA more effective they were reticent.
Howard Mavity, an attorney at Atlanta-based law firm Fisher Phillips with deep OSHA experience, said the agency is lighter on companies that display safety programs and procedures that show they “walk the talk.”
“OSHA is going to use the smaller hammer on the contractor who earns trust with transparent, genuine safety action,” Mavity told the audience at a safety conference last month.
Large contractors have programs to improve safety on their jobsites well beyond what OSHA requires.
Turner Construction, for example, has a program that restricts the use of ladders to very specific scenarios. The program, known as “Ladders Last,” only allows the use of ladders on jobsites when there is no other realistic way to complete a task. To get a ladder permit, a worker must complete a safety checklist.
Walsh Construction Group also has its methods. The company uses a system of checks and a transparent method of documentation.
“We believe safety is cultural. It’s about prevention. We don’t focus on statistics. We look at behavior. There’s been a change and a need to change” to improve industry safety, said Sean Walsh, president and the vice president of environment, safety and health for the Chicago-based company.
Part of the work, Walsh continued, was getting employees on board, and emphasizing the safe behaviors they demonstrated. He declined to share the safety metrics the company uses to evaluate subcontractors.
“You celebrate engagement when it's obvious that they're doing the things you want to create the culture that you desire. And in doing so, you get greater buy-in from the workforce,” he said.
Watsonville, California-based Granite Construction also follows that line of thinking. The company says that through its focus, it’s seen a decade of successive safety improvements throughout the company.
“We will continue to engrain our culture of safety through relationship-based safety training, shared knowledge and engagement at every level of our organization,” said Erin Kuhlman, the chief marketing and communications officer for the company.
More rules coming
OSHA is working on additional safety standards. One of the agency’s current focuses is the 5 (a)(1) standard, which captures a wide variety of safety standards and regulations, such as the current heat standard.
Stephen Boyd, a deputy regional administrator at OSHA, said that if OSHA issued more specific standards it could create more regulatory webbing for issues like that heat standard. The problem, however, is that standards often take years to enact — Boyd recalled a steel erector standard that took 13 years, but said it had vastly improved worker safety.
OSHA acknowledged that enforcement alone won’t lead to a safer industry.
“It’s important to understand that penalties are only one of the tools OSHA uses to improve worker safety. The most important thing is for the employer to abate the hazards identified in our inspections to prevent others from getting sick or injured from those hazards,” the agency said.
Outside of OSHA, research on construction fatalities by Wayne B. Gray and John Mendeloff found higher death rates in states that had a seven-day waiting period to file for workers’ compensation versus three days.
Mendeloff, who is a professor at the Graduate School of Public and International Affairs at the University of Pittsburgh, pointed out the difference that a move to a three-day waiting period, along with the elimination of exemptions for small contractors, made in worker fatality rates through his research.
“Steps that make firms a little more self conscious about what their safety record is, would be helpful,” Mendeloff said.
In an industry that had 986 total fatal injuries in 2021, a step in the right direction could go a long way.