5th Circuit dives into OSHA thicket in trench safety case

The Occupational Safety and Health (OSH) Act has been in the news a lot lately. It’s the statutory basis on which President Joe Biden is seeking to enforce his administration’s COVID-19 vaccine mandate for larger employers. The ensuing court struggles illustrate how the OSH Act’s contours are still to be determined. On December 1, the U.S. 5th Circuit Court of Appeals (which covers Texas) dealt with another still-evolving issue under the Act—namely, when will an employer be held liable for a safety violation attributed to a supervisor?

Trench work is dangerous

First, a brief review: The OSH Act has two types of regulations. Its General Duty Clause requires all employers to provide a safe and healthy work environment for their employees. The second type involves regulations written for specific workplace hazards, one of which deals with the dangerous business of digging a trench.

Angel Brothers Enterprises, a construction company, was installing a concrete drainage pipe alongside a road in LaPorte, Texas. A trench needs to be dug before laying the pipe. To do so safely, the trench walls need to be shored up so they don’t collapse on the workers.

For the first two days, the trench walls were shored up. On day three, they were not. Angel Brothers’ safety manager told foreman Salvador Vidal more reinforcement was required.