Does OSHA require you to preserve the accident scene after a workplace death?

The federal fatality-reporting rule, 29 CFR 1904.39, imposes no general requirement to keep the scene untouched. A state rule, a preservation order or a litigation duty can still require the scene or evidence to remain in place. Federal OSHA does require a report of the death within eight hours (29 CFR 1904.39(a)(1)), and employers who keep injury records save the 301 and the 300 Log for five years after the end of the year they cover (29 CFR 1904.33(a)). Some State Plans add a scene rule. Oregon bars disturbing the scene of a fatality or catastrophe until the Administrator authorizes it or law enforcement directs it, and Washington bars moving the equipment involved until the state's Department of Labor and Industries releases it.

A scissor lift lies on its side at the edge of a slab, one guardrail bent flat. The carpenter who was on the platform died at the hospital an hour ago. The general contractor's superintendent wants the lift stood up and the bay reopened so the concrete crew can pour in the morning. The safety director has to decide whether the lift can be moved yet, and what has to be reported and kept from today on.

When reporting the death, ask the OSHA Area Office what must remain in place and record the instructions. Also contact the person handling the company’s legal response. A state rule, an agency order or foreseeable litigation may require preservation even where the federal fatality-reporting rule does not impose a general scene freeze.

Does federal OSHA require you to preserve the scene after a worker dies?

The federal fatality-reporting provision does not impose a general scene freeze. 29 CFR 1904.39(a)(1) reads: “Within eight (8) hours after the death of any employee as a result of a work-related incident, you must report the fatality to the Occupational Safety and Health Administration (OSHA), U.S. Department of Labor.” The rest of the section covers how to report, which events count and when the clock starts. It never mentions the scene or the equipment.

Section 8 of the OSH Act gives OSHA powers at the site. Under 29 U.S.C. 657(a)(2), inspectors may “inspect and investigate” the workplace and “all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein.” Under 657(b), OSHA may “require the attendance and testimony of witnesses and the production of evidence under oath.” The one duty to preserve in that section is about records. Under 657(c)(1), each employer “shall make, keep and preserve, and make available to the Secretary” the records the Secretary prescribes by regulation. That paragraph says nothing about a scene or about equipment.

Is there any federal rule against altering an accident site?

For mines, yes. 30 CFR 50.12, titled Preservation of evidence, reads: “Unless granted permission by a MSHA District Manager, no operator may alter an accident site or an accident related area until completion of all investigations pertaining to the accident except to the extent necessary to rescue or recover an individual, prevent or eliminate an imminent danger, or prevent destruction of mining equipment.” Its source notes go back to 1977 and 1978, and its last amendment dates from May 13, 2004 (69 FR 26499). The rule binds mine operators. It is an MSHA rule for mines, not a scene-preservation requirement under OSHA’s fatality-reporting rule.

One OSHA standard does put a clock on an investigation. If your site runs a process covered by the Process Safety Management standard, 29 CFR 1910.119(m)(1) says: “The employer shall investigate each incident which resulted in, or could reasonably have resulted in a catastrophic release of highly hazardous chemical in the workplace.” Paragraph (m)(2) sets the start: “An incident investigation shall be initiated as promptly as possible, but not later than 48 hours following the incident.” Paragraph (m)(7) adds: “Incident investigation reports shall be retained for five years.” On construction work, 29 CFR 1926.64 reads: “For requirements regarding the process safety management of highly hazardous chemicals as it pertains to construction work, follow the requirements in 29 CFR 1910.119.” None of these paragraphs mentions the scene.

Which states have a written rule on preserving a fatal accident scene?

Oregon protects the scene of a fatality or catastrophe. Washington protects the equipment involved in specified serious incidents. Both have State Plans that cover private-sector workplaces, with exceptions listed on OSHA’s pages for Oregon and Washington. The following comparison covers these states and California’s preservation order; check the applicable state’s rules for other locations.

Oregon protects the scene itself. OAR 437-001-0053, Preserving Physical Evidence at the Scene of an Accident, reads in paragraph (1): “Employers, their representatives, or others shall not disturb the scene of a fatality or catastrophe other than to conduct the rescue of injured persons or mitigate an imminent danger until authorized by the Administrator (or designee), or directed by a recognized law enforcement agency.” A catastrophe, under OAR 437-001-0015(11), is “An accident in which two or more employees are fatally injured, or three or more employees are admitted to a hospital or to an equivalent medical facility.” One hospitalization, or an amputation with no death, isn't named. Paragraph (2) says: “The employer representative and employee representative must be provided an opportunity to document the scene prior to disturbance or removal of physical evidence.” It also lets the Administrator limit how many representatives go with the compliance officer while the scene is documented. Paragraph (3) says “a minimum penalty of $200 may be assessed” when the scene is disturbed before it is authorized. The text in force dates from Administrative Order 5-2018, effective December 17, 2018. On an Oregon project, whoever walks the scene for the company should bring a camera and a tape measure.

Washington protects the equipment. WAC 296-800-32010(1) reads: “You must not move equipment involved in a work-related accident if any of the following results: (a) A death. (b) An inpatient hospitalization. (c) An amputation. (d) The loss of an eye.” Under paragraph (2), the equipment stays put “until a representative of the department of labor and industries investigates the incident and releases the equipment,” unless moving it is necessary to remove any victims or to prevent further incidents and injuries. The word scene is in a note to the reporting rule, WAC 296-27-031: “Secure the scene of work-related events that result in the death or inpatient hospitalization of any worker.” A second note says not to move the equipment involved, naming personal protective equipment, tools and machinery. The equipment restriction is stated directly in WAC 296-800-32010. The same rule sets Washington's reporting clock: “The employer must report to DOSH within eight hours of a work-related incident that results in: (a) A fatality; or (b) An inpatient hospitalization of any employee.” An amputation or the loss of an eye without an inpatient hospitalization is reported within 24 hours (paragraph (2)). Fire departments in Washington carry one more duty: “The fire department must preserve all records, photographic materials, audio, video, recordings, or other documentation concerning an accident” (WAC 296-305-01503(4)).

California relies on an order issued at the scene. Cal/OSHA's compliance manual, in a chapter of procedures for its inspectors, describes an Order to Preserve. When the cause of an accident has to be determined and the accident site or physical evidence “is in potential danger of being removed, altered or tampered with,” compliance personnel “shall immediately issue to the employer who controls the site or the evidence an Order to Preserve.” The order is limited to the immediate area and the equipment directly associated with the accident. It stays valid “until the Division determines that the preservation of the accident site or physical evidence at the site is no longer necessary.” The manual adds: “Any person who knowingly violates an Order to Preserve issued by the Division is subject to prosecution and a fine of not more than $5,000.” That is an agency procedure that starts with an inspector's order. This procedure concerns an order issued by the Division. It does not establish that the order is the only possible preservation duty in California.

The mine, Oregon and Washington rules all let you act to rescue people and to deal with an imminent danger. None of these rules sets a number of hours or days. Each restriction lasts until an official releases it, or, for mines, until the investigations are complete.

What does federal OSHA require after a workplace death?

A report within hours, then records on their own clocks. The table gives each federal deadline and the event that starts it.

An inpatient hospitalization means formal admission for care or treatment. Observation or diagnostic testing alone is excluded by 1904.39(b)(9)-(10). The 24-hour window after the incident determines whether the nonfatal event must be reported; the deadline for making that report is a separate 24-hour window.

You can report by phone or in person to the OSHA Area Office nearest the site, by phone to 1-800-321-OSHA (1-800-321-6742), or online through osha.gov (1904.39(a)(3)). Small employers report too. 29 CFR 1904.1(a)(1) exempts employers with ten or fewer employees at all times during the last calendar year from keeping injury records unless OSHA or the Bureau of Labor Statistics tells them in writing to keep them, and 29 CFR 1904.2(a)(1) exempts establishments in listed industries. Both keep the duty to report. 1904.1(a)(1) says “all employers covered by the OSH Act must report to OSHA any work-related incident that results in a fatality,” and 1904.2(a)(1) says “all employers must report to OSHA any workplace incident that results in an employee's fatality.” State Plan states may be more stringent than the federal rule on reporting fatalities and on record retention (29 CFR 1904.37(b)(2)). The steps of the call are in how to report a fatality or severe injury to OSHA.

Take a laborer who falls from a scaffold on October 1 and is admitted to the hospital that afternoon. The admission is reported within 24 hours (1904.39(a)(2)). If he dies on October 22, 21 days after the fall, the death is reported within eight hours, because it comes inside the 30-day window of (b)(6). Had he died on November 10, 40 days after the fall, 1904.39 would require no report, but under the same paragraph the death “must be recorded on your OSHA injury and illness records, if you are required to keep such records.” On the 300 Log, 29 CFR 1904.33(b)(1) applies: “If the description or outcome of a case changes, you must remove or line out the original entry and enter the new information.” The 301 completed in October doesn't have to be redone: “No, you are not required to update the OSHA 301 Incident Reports” (1904.33(b)(3)). The first entries were due within seven calendar days of learning of the recordable case (29 CFR 1904.29(b)(3)).

Medical and exposure records are a separate duty, and it applies whether or not anyone died. Under 29 CFR 1910.1020(d)(1), an employee's medical record is kept for “at least the duration of employment plus thirty (30) years” and each exposure record for at least thirty years. Both periods apply unless “a specific occupational safety and health standard provides a different period of time.” 29 CFR 1926.33 applies the same rules in construction. The chart by record type is in how long to keep OSHA records, and the rule on handing records over is in the four-business-hour rule.

Where does a duty to keep documents and evidence come from?

For injury records, from the OSH Act and Part 1904. For anything a lawsuit may need, from the common law, which many courts hold arises once litigation is reasonably foreseeable. Criminal law adds penalties for destruction or false statements made on purpose.

29 U.S.C. 657(c)(1), quoted above, makes employers keep the records the Secretary prescribes by regulation, and 1904.33(a) sets five years for the injury and illness forms. Losing one early is a violation. In AKM LLC d/b/a Volks Constructors v. Secretary of Labor, decided April 6, 2012, the D.C. Circuit wrote of an employer that has made a record: “If it loses or destroys a record before the end of that time period, that too is a violation.” OSHA's recordkeeping directive, CPL 02-00-172 (information date January 13, 2025), is enforcement guidance and reads: “a violation occurs when the employer loses or destroys a form before the end of the five-year retention period. Accordingly, once an employer creates a Part 1904 record, OSHA can cite that employer for failure to save the record for five calendar years plus six months.”

A lawsuit brings its own duty. Federal Rule of Civil Procedure 37(e) applies when electronically stored information “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.” The rule doesn't create the duty. The advisory committee note on the 2015 amendment says: “Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to preserve. The rule does not apply when information is lost before a duty to preserve arises.” On timing, it says “Courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant.” A recordkeeping rule doesn't answer that question for you. The note names “statutes, administrative regulations, an order in another case, or a party's own information-retention protocols” as sources of independent requirements, and adds: “The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation.” When the duty starts after a death is a question for your lawyer. Ask early, and keep the answer in writing with its date.

What a court may do depends on intent. On a finding of prejudice, it “may order measures no greater than necessary to cure the prejudice.” Only on a finding that the party “acted with the intent to deprive another party of the information's use in the litigation” may it presume the lost information was unfavorable, tell the jury it may or must presume so, or dismiss the action or enter a default judgment. The note says that “reasonable steps” to preserve suffice and that the rule “does not call for perfection.” On automatic deletion, it treats the routine, good-faith operation of an electronic information system as a factor for the court, “although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation.” It also says “The new rule applies only to electronically stored information.” Paper forms and physical evidence such as the lift fall under other law, outside the electronic-information rule discussed here. And the rule “does not affect the validity of an independent tort claim for spoliation if state law applies in a case and authorizes the claim.”

Criminal law reaches destruction and false statements made on purpose. 18 U.S.C. 1519 punishes whoever “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a matter within the jurisdiction of a federal agency, including acts “in relation to or contemplation of any such matter,” with up to 20 years in prison. The section doesn't name OSHA, its application to a particular OSHA investigation requires legal analysis, and its reference to a tangible object should not be treated as covering every item of physical evidence without legal analysis. 29 U.S.C. 666(g) punishes whoever “knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained” under the OSH Act.

One 2017 federal case concerned a statement about changes to a fatal accident scene. On April 19, 2017, the U.S. Attorney's Office for the Middle District of Florida announced the indictment of a man for “making false statements to federal Occupational Safety and Health Administration (OSHA) investigators.” According to the indictment, during the investigation of a workplace accident that resulted in a fatality, he “falsely stated to OSHA investigators that he did not alter the scene of the accident in any way after the accident had occurred.” The release reminds readers that “every defendant is presumed innocent unless, and until, proven guilty,” and the announcement does not establish a conviction. If anything was moved to free a worker or stop a hazard, tell the investigator what was moved and why.

What should you keep after a workplace death, and who decides when it can go?

It depends on the record. Injury records follow fixed federal periods. A state scene or equipment rule lasts until an official releases it, and a litigation hold continues for as long as the applicable preservation duty requires. Counsel should assess when release is appropriate.

Get each release in writing. When an official in Oregon or Washington, a law enforcement officer or an MSHA District Manager says the scene or the equipment can go, write down the name, the agency, the date and time, and exactly what was released. The absence of a general scene-freeze provision in the federal reporting rule does not rule out a specific preservation order or other legal duty. Keep the Area Office’s instructions and any release applicable to the site. A litigation hold has no outside end date either. Before releasing it, have counsel assess the continuing preservation duties and any court or agency order. Keep the dated release decision and its basis with the hold.

For the overturned lift, Washington’s equipment restriction and Oregon’s scene restriction require the applicable official’s release, subject to their exceptions. On a project under federal OSHA, record the Area Office’s instructions and check for any specific order or other preservation duty. Photographing and measuring the scene may help document it, but does not establish that moving or discarding the lift is permitted. Resolve that question with the authority and counsel handling the incident.

How do you put records on legal hold after a workplace death?

Write down what is held and why, send a notice to each person who keeps those records, get each acknowledgment back, and stop any routine deletion that would reach them. The committee note on Rule 37(e) points at that last step when it speaks of “intervening in that routine operation.” On paper, the hold is a memo with a signed copy back from each custodian. The weak point is the routine cleanup of old files, done by someone who never heard about the accident.

In HazComFast, the first hold places itself. When an OSHA 301 case is saved with the classification Death, or changed to Death, the database puts that case under legal hold in the same step: “Placed automatically: death recorded.” While the hold is in force, the case can't be amended or taken off the log. If it needs a correction, an administrator releases the hold with a written reason, makes the change and places the hold again.

The rest of the file arrives as a ready-made proposal. The same death files a suggested legal hold that names 12 record types an investigation may need, from incident investigations and corrective actions to training records, toolbox talks, permits, inspections and near-miss reports. An administrator adjusts the description and the record types and accepts it, or declines it with a reason that's kept with their name and the date. A case that records an in-patient hospitalization files a proposal too.

Each hold reaches its custodians as a notice in the app, “Legal hold: preserve records,” and each of them acknowledges receipt. The hold shows who has acknowledged and when, and who is still awaited. Only an administrator can release it, with a reason of at least 10 characters kept in the hold history. An end date or an edit never lifts it on its own.

The routine cleanup is covered. While a hold is in force, the database refuses the removal of the covered records. The attempt goes into the Deletion Audit Log as Blocked, and the administrators get a message that a legal hold stopped it.

Related reading: How to report a fatality or severe injury to OSHA · How long to keep OSHA records · The four-business-hour rule