7.1 TOSHA/OSHA Administration, Recordkeeping, Inspections, and Penalties

Every licensed Tennessee contractor bears a non-delegable legal duty to maintain a safe jobsite, document work-related injuries and illnesses, report severe incidents within strict hourly windows, and respond properly to regulatory inspections. On the Tennessee Contractor Business and Law Examination, questions test both federal Occupational Safety and Health Administration (OSHA) regulations under Title 29 of the Code of Federal Regulations (29 CFR) and Tennessee's state-plan statutes under the Tennessee Occupational Safety and Health Act of 1972 (T.C.A. § 50-3-101 et seq.).

TOSHA State-Plan Jurisdiction vs. Federal OSHA (T.C.A. § 50-3-101 et seq. & 29 CFR Part 1926)

Congress enacted the federal Occupational Safety and Health Act of 1970 (OSH Act, 29 U.S.C. § 651 et seq.) to assure safe and healthful working conditions for working men and women. Under Section 18 of the OSH Act, individual states are permitted to assume responsibility for occupational safety and health enforcement by operating an OSHA-approved State Plan, provided the state's standards and enforcement program are at least as effective as federal OSHA.

• Tennessee OSHA (TOSHA) Administration: Under T.C.A. § 50-3-101 et seq., Tennessee operates an approved State Plan known as the Tennessee Occupational Safety and Health Administration (TOSHA), which is administered by the Tennessee Department of Labor and Workforce Development (TDLWD). TOSHA covers virtually all private-sector construction employers and employees in Tennessee as well as state and local government employees. Federal OSHA retains direct enforcement jurisdiction in Tennessee only over federal government agencies, the U.S. Postal Service, maritime and longshoring operations on navigable waters, and contractors working inside exclusive federal jurisdiction enclaves or designated federal facilities (such as Tennessee Valley Authority or Department of Energy reservations).
• Adoption of Federal Construction Standards (29 CFR Part 1926): By state administrative rule (Tenn. Comp. R. & Regs. 0800-01-06), TOSHA adopts and enforces the federal 29 CFR Part 1926 Safety and Health Regulations for Construction, along with applicable general industry standards in 29 CFR Part 1910.
• Horizontal vs. Vertical Standards: OSHA regulations are divided into two structural categories:
  1. Horizontal Standards (29 CFR Part 1910 — General Industry): Broad rules that apply across multiple industries regardless of trade, such as Hazard Communication (1910.1200), respiratory protection (1910.134), and access to employee exposure and medical records (1910.1020).
  2. Vertical Standards (29 CFR Part 1926 — Construction): Industry-specific standards written exclusively for construction operations, such as Subpart L (Scaffolds), Subpart M (Fall Protection), Subpart P (Excavations), and Subpart X (Stairways and Ladders). Whenever a vertical construction standard in Part 1926 specifically addresses a construction condition, it governs over a generic horizontal standard.

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The General Duty Clause (OSH Act Section 5(a)(1) / T.C.A. § 50-3-105)

Even when no specific regulation in 29 CFR Part 1926 covers a particular jobsite hazard, an employer can still be cited and penalized under the statutory General Duty Clause:

• Employer's Statutory Duty (Section 5(a)(1) / T.C.A. § 50-3-105(1)): Every employer shall furnish to each of its employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.
• Four Elements Required for a General Duty Clause Citation: TOSHA/OSHA uses the General Duty Clause as an enforcement gap-filler for recognized hazards that lack a dedicated technical standard (for example, severe occupational heat stress, ergonomic lifting hazards, workplace violence, or struck-by hazards from improper rigging practices not covered by a specific rule). To sustain a General Duty Clause citation, the agency must establish four elements: (1) the employer failed to keep the workplace free of a hazard to which its own employees were exposed; (2) the hazard was recognized (either by the employer itself or generally within the construction industry); (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there was a feasible and useful method available to correct or materially reduce the hazard.
• Compliance with Specific Standards (Section 5(a)(2) & Section 5(b)): Under Section 5(a)(2) (T.C.A. § 50-3-105(2)), employers must also comply with all specific occupational safety and health standards promulgated under the Act. Under Section 5(b) (T.C.A. § 50-3-106), employees also have a statutory duty to comply with safety rules and wear required personal protective equipment; however, OSHA and TOSHA never issue monetary citations or fines to individual employees—legal and financial responsibility for enforcement rests on the employer.

Multi-Employer Citation Policy on Construction Sites

Because commercial and residential construction projects involve a general contractor and multiple specialty subcontractors working side by side, TOSHA/OSHA enforces the Multi-Employer Citation Policy. More than one employer on a jobsite may be cited for the same hazardous condition if they fall into any of four roles:

1. Creating Employer: The contractor that actually caused or created the hazardous condition (for example, a mechanical subcontractor that removes a section of perimeter guardrail to hoist a chiller and leaves the edge unguarded). A creating employer is citable even if only other contractors' employees are exposed.
2. Exposing Employer: An employer whose own employees are exposed to the hazard, if it knew or with reasonable diligence should have known of the hazard and failed to take steps to protect its crew.
3. Correcting Employer: An employer engaged on the same common worksite who is specifically responsible for installing and maintaining particular safety equipment or devices (such as a carpentry subcontractor under contract to build and maintain floor-opening covers).
4. Controlling Employer: An employer—typically the General Contractor (Prime Contractor) or Construction Manager—who has general supervisory authority over the worksite, including the contractual or practical power to correct safety and health violations itself or require subcontractors to correct them. A controlling employer must exercise reasonable care through periodic jobsite inspections and enforcement to prevent and detect violations.

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OSHA Injury and Illness Recordkeeping (29 CFR Part 1904)

Under 29 CFR Part 1904, covered construction employers must maintain standardized logs of work-related injuries and illnesses.

• The >10 Employees Exemption Threshold (29 CFR 1904.1):
  • If an employer had 10 or fewer employees at all times during the previous calendar year (counting all full-time, part-time, temporary, and seasonal employees across the entire company/firm, not merely at one jobsite), the employer is partially exempt from keeping routine OSHA injury and illness records (Forms 300, 300A, and 301), unless OSHA, TOSHA, or the Bureau of Labor Statistics (BLS) notifies the employer in writing in advance that it must keep records.
  • If an employer had more than 10 employees (11 or more) at any single point during the prior calendar year, the employer must keep complete routine OSHA injury and illness records for the current year.
• Recordable Injury/Illness vs. Non-Recordable First Aid (29 CFR 1904.7):
  • A work-related injury or illness must be recorded on the OSHA 300 Log if it results in any of the following general recording criteria: (1) death; (2) days away from work (not counting the day of the injury itself); (3) restricted work activity or transfer to another job; (4) medical treatment beyond first aid (such as prescription medication, sutures/stitches, staples, physical therapy, or rigid casts/splints); (5) loss of consciousness (for any length of time); OR (6) a significant injury or illness diagnosed by a physician or other licensed healthcare professional (such as a fractured bone, cracked tooth, punctured eardrum, work-related cancer, or chronic irreversible disease), plus needlestick/sharps injuries and occupational hearing loss shifts.
  • By contrast, injuries requiring only First Aid (1904.7(b)(5)(ii)) are NOT recordable on Form 300. OSHA defines first aid using a strict, closed list that includes: using non-prescription medication at non-prescription strength; administering tetanus immunizations; cleaning, flushing, or soaking wounds on the surface of the skin; using wound coverings such as bandages, Band-Aids, gauze pads, butterfly bandages, or Steri-Strips; hot or cold therapy; non-rigid means of support (elastic bandages, wraps); temporary immobilization devices used only while transporting an accident victim; drilling a fingernail or toenail to relieve pressure; using eye patches; removing splinters or foreign material from the eye using only irrigation or a cotton swab; removing splinters from areas other than the eye by tweezers; using finger guards; massages; or drinking fluids for relief of heat stress.

The Three Mandatory OSHA Recordkeeping Forms (Forms 300, 301, and 300A)

• Retention of Exposure and Medical Records (29 CFR 1910.1020): Do not confuse the 5-year retention rule for OSHA Forms 300, 300A, and 301 with the retention period for employee medical records and toxic substance / harmful physical agent exposure records (such as air monitoring data for silica, lead, or asbestos). Under 29 CFR 1910.1020, employee medical records must be preserved for the duration of employment plus 30 years, and employee exposure records must be preserved for at least 30 years.
• OSHA Incidence Rate Formula: Construction owners and prequalification questionnaires frequently evaluate a contractor's Total Recordable Incident Rate (TRIR) (or DART rate for Days Away, Restricted, or Transferred) using a standard base of 200,000 employee hours (equivalent to 100 full-time employees working 40 hours per week for 50 weeks per year):

$$\text{OSHA Incidence Rate} = \frac{\text{Number of Recordable Injuries and Illnesses} \times 200,000}{\text{Total Employee Hours Worked During the Calendar Year}}$$

For example, if a contractor's workforce logs $80,000\text{ total hours}$ during the year and experiences $2\text{ recordable injuries}$, its TRIR is $\frac{2 \times 200,000}{80,000} = 5.0$.

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Mandatory Severe Injury and Fatality Reporting (29 CFR 1904.39)

Note two critical nuances tested on the exam: (1) Historically, employers only reported hospitalizations when three or more employees were hospitalized, but since 2015 the rule requires reporting the in-patient hospitalization of 1 or more employees within 24 hours. (2) An "in-patient hospitalization" means formal admission to the in-patient service of a hospital or clinic for care or treatment; a visit to an emergency room solely for observation or diagnostic testing without formal admission does not trigger the 24-hour report.

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TOSHA/OSHA Inspection Priority Order, Stages, Citations, and Penalties

Because TOSHA and OSHA cannot inspect every construction site simultaneously, inspections are scheduled according to a strict four-tier priority order from highest to lowest:

1. First Priority — Imminent Danger: Any condition or practice where there is reasonable certainty that a danger exists that can be expected to cause death or serious physical harm immediately or before the danger can be eliminated through normal enforcement procedures (for example, employees working at the bottom of an unshored, vertical 14-foot trench with visibly cracking and sloughing soil walls).
2. Second Priority — Fatalities and Catastrophes: Investigations triggered by a work-related death or a severe incident involving in-patient hospitalization, amputation, or loss of an eye.
3. Third Priority — Employee Complaints and Referrals: Formal complaints submitted by current employees or their representatives alleging specific hazards or standards violations, as well as referrals from building inspectors, police, or media. Under Section 11(c) of the OSH Act (29 U.S.C. § 660(c)) and T.C.A. § 50-3-409, employees have the right to request a confidential inspection (with their name withheld from the employer) and are strictly protected against discharge, demotion, or retaliation for filing a safety complaint. An employee who suffers retaliation has 30 days to file a whistleblower discrimination complaint with TOSHA/OSHA.
4. Fourth Priority — Programmed Inspections: Planned, targeted inspections of high-hazard industries, active construction sites, or special emphasis programs (such as National/Local Emphasis Programs on trenching and falls).

Warrant Rights and the Three Stages of an Inspection

• No Advance Notice & Right to Require a Warrant: Inspections are almost always conducted without advance notice (giving unauthorized advance notice of an inspection is a criminal misdemeanor under T.C.A. § 50-3-502, except in rare cases such as imminent danger where immediate correction is needed). Under the U.S. Supreme Court's decision in Marshall v. Barlow's, Inc., an employer has a Fourth Amendment right to refuse warrantless entry and demand that the agency obtain an administrative inspection warrant before entering non-public areas of the jobsite.
• Stage 1 — Opening Conference: The Compliance Safety and Health Officer (CSHO) arrives at the site, presents official credentials, explains the reason for and scope of the inspection, and reviews the employer's written safety programs (HazCom, fall protection, trenching plans) and OSHA 300/300A/301 records.
• Stage 2 — Walkaround Inspection: The CSHO inspects the physical work areas accompanied by an employer representative (such as the project superintendent) and an employee representative. During the walkaround, the CSHO may take photographs, video, physical measurements, and environmental air/noise samples, and has the statutory right to question any employee privately. If the employer immediately corrects a minor violation during the walkaround, it demonstrates good faith, though an apparent violation may still be recorded.
• Stage 3 — Closing Conference: Following the walkaround, the CSHO conducts a closing conference with the employer and employee representatives to discuss all unsafe or unhealthful conditions observed, indicate apparent violations that may result in citations, discuss reasonable abatement periods, and explain the employer's rights to request an informal settlement conference or file a formal Notice of Contest.

Citation Issuance, Posting Rule, Contest Deadlines, and Violation Categories

• 6-Month Citation Statute of Limitations: No citation may be issued after the expiration of 6 months following the occurrence of any violation (29 U.S.C. § 658(c)).
• Mandatory Citation Posting Rule (29 CFR 1903.16 / T.C.A. § 50-3-307): Upon receiving a citation, the employer must immediately post the citation (or an unedited copy) at or near each place where a violation referred to in the citation occurred. The citation must remain posted for 3 working days OR until the violation is abated, whichever is LONGER—even if the employer intends to contest the citation!
• Notice of Contest Deadlines (Federal OSHA vs. Tennessee TOSHA):
  • Federal OSHA (29 U.S.C. § 659(a) / 29 CFR 1903.17): The employer has 15 working days from the receipt of the citation and notice of proposed penalty to file a written Notice of Contest with the OSHA Area Director.
  • Tennessee TOSHA (T.C.A. § 50-3-307(b)): Under Tennessee's state statute, the employer has 20 calendar days from the receipt of the citation/penalty notice to notify the Commissioner of Labor and Workforce Development in writing of its intent to contest (heard by the independent Tennessee Occupational Safety and Health Review Commission). Memorize both numbers (15 working days for federal OSHA reference questions and 20 calendar days for Tennessee-specific TOSHA questions).
• Four Penalty Adjustment Factors: When determining the dollar amount of a proposed civil penalty, TOSHA/OSHA evaluates four statutory factors: (1) the gravity of the violation (severity of the potential injury/illness and probability of an accident—the primary determinant); (2) the size of the employer's business (total number of employees); (3) the good faith of the employer (quality of written safety and health program and cooperation); and (4) the employer's history of previous violations.

The federal maximum amounts above are those published by OSHA at the October 13, 2026 check; federal annual inflation adjustments do not automatically amend Tennessee’s statutory limits. Report Tennessee-jurisdiction incidents through TOSHA’s published channels. Federal facilities and contractor sites require a jurisdiction check: federal employment, maritime work, TVA, and specified federal contractor activities can fall outside the state plan. Medical and exposure-record retention has regulatory exceptions; “employment plus 30 years” is the general medical-record rule, not a statement that no exception exists.

Source check (October 13, 2026): OSHA published penalty amounts.

For severe-event reporting under § 1904.39, the fatality must occur within 30 days of the work-related incident, and the inpatient hospitalization, amputation, or loss of an eye within 24 hours of the incident. The reporting clock also accounts for when the employer learns of the event and its work relationship. These incident-to-event windows differ from the eight-hour and 24-hour notice periods; use the full rule and TOSHA instructions.