Cal/OSHA Investigations After a Construction Accident

When a construction worker is killed or seriously hurt in California, Cal/OSHA usually opens an investigation. For the worker and the family, that raises immediate questions: what the investigators are looking for, what a citation means, and whether any of it matters to an injury or wrongful death claim.

This guide explains how Cal/OSHA investigations work, which safety rules investigators check, what a citation does and does not establish, and how a safety violation can be used in a lawsuit against someone other than the employer. Our San Diego construction accident attorneys represent injured workers and families in these claims.

What Is Cal/OSHA?

Cal/OSHA is the Division of Occupational Safety and Health, part of the California Department of Industrial Relations. California runs its own workplace safety program under a federally approved state plan, so on most private construction sites in California it is Cal/OSHA, not federal OSHA, that sets the safety rules, inspects worksites, investigates accidents, and issues citations.

Cal/OSHA’s job is enforcement. It does not compensate injured workers, and it does not decide who is legally responsible for an injury. Those questions are answered through workers’ compensation and, when someone other than the employer is at fault, a third-party claim.

What Happens in a Cal/OSHA Accident Investigation

Employers must report a serious injury, illness, or death to Cal/OSHA as soon as practically possible, and no later than 8 hours after they know of it (8 CCR 342). Cal/OSHA must then investigate the causes of any employment accident that kills a worker or causes a serious injury, unless it decides an investigation is unnecessary and documents why (Labor Code § 6313).

Who Investigates

Most accident investigations are handled by inspectors from the local Cal/OSHA district office. San Diego County has its own district office. Inspectors go to the site, document the scene, take photographs and measurements, review the companies’ safety programs and training records, and interview workers, supervisors, and witnesses.

Cases involving a death, or serious injuries to five or more workers, are also investigated by Cal/OSHA’s Bureau of Investigations, which prepares cases for possible criminal prosecution. When one of its cases involves a serious injury or death, the Bureau must refer the results to the prosecutor unless it finds the evidence legally insufficient (Labor Code § 6315).

“In my experience, Cal/OSHA investigations are usually very thorough. Their investigators visit the construction site, preserve critical evidence, interview key witnesses, and create a detailed report of their findings. I have read their final reports, and I have always been impressed by how thorough they are.” — Conor Hulburt, Trial Attorney

How Long It Takes and When the File Is Available

Cal/OSHA must issue any citation within six months after the violation occurs (Labor Code § 6317), and investigations often take several months. The investigation file usually becomes available only after the investigation closes. Before then, the assigned investigator may be willing to share some information, but generally not written records.

Which Safety Rules Cal/OSHA Checks

Most of the rules that apply on a construction site are in Cal/OSHA’s Construction Safety Orders, in Title 8 of the California Code of Regulations. A few general rules, such as heat illness and hazard communication, apply to construction too.

What Every Construction Employer Must Do

• Adopt a written Injury and Illness Prevention Program and a Code of Safe Practices, and post the code at the jobsite (8 CCR 1509, 3203).
• Hold toolbox or tailgate safety meetings with each crew at least every 10 working days.
• Assign competent persons who can identify existing and predictable hazards.
• Inspect the jobsite regularly and train workers in a language they understand.
• Report a serious injury, illness, or death to Cal/OSHA within 8 hours.

Common Construction Safety Orders

• Fall protection (8 CCR 1670): Workers exposed to a fall of more than 7½ feet, or working on roofs steeper than 7:12, must wear personal fall protection unless they are otherwise protected, such as by guardrails. Falls are the leading cause of death on construction sites.
• Floor and roof openings (8 CCR 1632): Covers must hold the greater of 400 pounds or twice the expected load, be secured so they cannot be displaced, and be marked.
• Scaffolds (8 CCR 1637 and following): Rules for when scaffolds are required and for their design, loading, planking, access, erection, and dismantling.
• Excavations and trenches (8 CCR 1540–1541.1): Protective systems must guard against cave-ins, and a competent person must inspect excavations daily when workers are exposed.
• Cranes and derricks (8 CCR 1610 and following): Operator qualifications, inspections, and safe operating rules for cranes used in construction.
• Electrical safety: Cal/OSHA’s Electrical Safety Orders govern work on and near energized equipment and power lines, to prevent shocks, burns, and electrocutions on construction sites.
• Flaggers (8 CCR 1599): Trained flaggers in high-visibility apparel are required where barricades and signs cannot control jobsite traffic.
• Personal protective devices (8 CCR 1514): Employers must require the protective gear the safety orders call for, approved for its purpose and fitted to each worker.
• Heat illness prevention (8 CCR 3395): Employers must provide water, shade, and rest breaks in hot weather.
• Wildfire smoke (8 CCR 5141.1): When the air quality index for fine particles reaches 151 or higher, employers must reduce exposure and provide respirators such as N95s.
• Hazard communication (8 CCR 5194): Workers must be told about, and trained on, hazardous chemicals they may be exposed to.

What a Cal/OSHA Citation Means

A citation is Cal/OSHA’s formal finding that an employer violated a specific safety rule. Each citation must be in writing, describe the violation, and identify the rule that was broken (Labor Code § 6317). Citations are classified by how serious the violation is (8 CCR 334):

• Regulatory: posting, recordkeeping, or reporting violations.
• General: a violation related to safety and health that is not serious.
• Serious: a violation where there is a realistic possibility that death or serious physical harm could result.
• Willful: the employer intentionally violated a safety rule, or knew of a hazard and made no reasonable effort to correct it.
• Repeat: a substantially similar violation cited within five years after an earlier violation became final or was abated.

On a construction site with several contractors, Cal/OSHA can cite more than one company, including the contractor that created the hazard or controlled the site, even if its own workers were not exposed (8 CCR 336.10). The list of companies cited is often the first clear picture of who was responsible for what.

A citation leads to a civil penalty paid to the state. It is not compensation to the worker or the family. An employer can appeal a citation to the Occupational Safety and Health Appeals Board within 15 working days of receiving it (Labor Code § 6600), and citations are often reduced or settled during that process. A reduced or withdrawn citation does not necessarily mean the hazard did not exist.

How Cal/OSHA Findings Are Used in a Third-Party Lawsuit

A worker generally cannot sue their own employer, but can bring a claim against another party whose negligence contributed to the injury, such as another contractor or an equipment manufacturer. In that kind of case, Cal/OSHA’s work matters in three ways: what the jury cannot hear, what it can hear, and how the safety rules themselves are used.

The Citation Itself Is Not Admissible

In a personal injury or wrongful death case, evidence that Cal/OSHA issued a citation, or did not issue one, cannot be considered or admitted, except in a case between a worker and the worker’s own employer (Labor Code § 6304.5). Cal/OSHA employees also cannot testify as experts or about how a safety rule applies. The California Supreme Court has described this as a rule that cuts both ways: the injured worker cannot tell the jury that Cal/OSHA cited the defendant, and the defendant cannot tell the jury that Cal/OSHA did not (Elsner v. Uveges (2004) 34 Cal.4th 915).

The Evidence Behind It Is

Excluding the citation does not exclude the facts. Cal/OSHA’s findings are usually built on evidence that can be developed and presented in a lawsuit through subpoenas, depositions, site inspections, and expert analysis. A citation often works as a roadmap to that evidence: it identifies the safety rule at issue, the companies involved, and the people who saw what happened. The records that most often matter include:

• photographs, measurements, and witness accounts gathered at the scene
• each contractor’s Injury and Illness Prevention Program and Code of Safe Practices
• tailgate safety meeting sign-in sheets and training records
• site-specific safety plans, fall protection plans, and competent-person designations
• subcontracts showing who agreed to provide safety equipment or supervision
• daily logs, inspection reports, and video

Many of these records are held by companies that may become defendants, so preserving them early matters.

Establishing the Standard of Care

Since January 1, 2000, Cal/OSHA safety orders can be used to establish the standard of care in a California personal injury or wrongful death case, the same way any other statute or regulation can (Labor Code § 6304.5; Elsner). That means a jury can be told what a safety order required and asked to decide whether the defendant complied, even though it cannot be told what Cal/OSHA concluded.

Proving Negligence and Negligence Per Se

To prove negligence, an injured worker or family must show that the defendant was negligent, that they were harmed, and that the defendant’s negligence was a substantial factor in causing the harm (CACI 400). A safety order can make that proof more direct. Under Evidence Code section 669, violating a safety order creates a presumption of negligence when:

• the defendant violated a safety order that applied to it;
• the violation was a substantial factor in causing the injury;
• the injury came from the kind of hazard the safety order was meant to prevent; and
• the injured worker was one of the people the safety order was meant to protect.

The defendant can try to rebut the presumption by showing it acted as a reasonably careful person trying to comply with the law would have (CACI 418). A violation does not automatically establish liability. The defendant must also owe the injured worker a legal duty, which is why the next question, who can be held responsible, matters so much.

Who Can Be Held Responsible

A worker’s own employer is generally shielded from lawsuits by the workers’ compensation system (Labor Code § 3602). A property owner or general contractor that hired the worker’s employer is usually presumed not liable under the Privette doctrine, unless an exception applies, such as retained control that affirmatively contributed to the injury, or a hazard the hirer knew about and concealed.

The parties most often responsible are other contractors on the site, the makers and renters of equipment that failed, and hirers whose conduct falls within a Privette exception. For example, a jury found a general contractor liable after a plywood cover it was responsible for under the floor-opening safety order gave way beneath a subcontractor’s worker, and the Court of Appeal upheld the negligence per se instruction because the contractor had not delegated that safety duty (Strouse v. Webcor Construction, L.P. (2019) 34 Cal.App.5th 703). In cases involving construction vehicle accidents or workplace spinal cord injuries, a safety violation often points to a third-party claim that goes beyond workers’ compensation.

Retaliation for Reporting a Safety Hazard

California law prohibits employers from retaliating against workers who report safety hazards, file Cal/OSHA complaints, or refuse work that would violate a safety rule and create a real and apparent hazard to themselves or their coworkers (Labor Code §§ 6310–6312). A retaliation complaint to the California Labor Commissioner generally must be filed within one year (Labor Code § 98.7; see the Labor Commissioner’s guide to filing a retaliation complaint). A separate complaint to federal OSHA has a much shorter deadline: 30 days.

Hulburt Law Firm

Conor and Leslie Hulburt are trial attorneys who represent construction workers and families in third-party injury and wrongful death claims. When Cal/OSHA is investigating, we work to identify every responsible party, preserve the evidence before it is lost, and build the case for a jury.

If you or a family member was hurt on a construction site, contact Hulburt Law Firm for a free consultation.