Top 10 Workplace Safety Mistakes Employers Make (But Don't Have To):
- Over-report to OSHA
- Rolling out the red carpet for OSHA
- Allowing employees to work during the walkaround
- Plain view hazards during the walkaround
- Not preparing employees for interviews
- Managers reading and signing CSHO interview notes
- Rushing the internal investigation and report
- No discipline for safety violations
- Not having a compliance program
- Not participating in an informal settlement conference
What To Do When OSHA Is At Your Door
- Alert the safety manager and contact higher management or Company counsel as necessary. (If a serious injury or fatality has occurred, you should have counsel present during all phases of the inspection.)
- Review the credentials of the Compliance Safety and Health Officer (CSHO) and learn the purpose of the inspection: complaint, accident or fatality, programmed, imminent danger, etc. Once the purpose of the inspection is learned, activate the remainder of the trained “inspection team”.
- Determine whether to require a search warrant before permitting the inspection to proceed. If not, establish the scope of the inspection before it begins. (If that scope is not respected, you may stop the inspection by withdrawing your permission to continue the inspection without a warrant.)
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During the opening conference:
a. Consider having your opening and closing conferences separate from those of the employee representative.
b. Confirm the “ground rules” about the scope and other details of the inspection, such as the areas to be entered or any trade secrets which must be protected.
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During the walk around:
a. Stay with the CSHO at all times.
b. Be polite. Do not argue, although you may point out that there is no hazard, or no employee exposure to any hazard, or that the standard does not apply.
c. Be careful what you say to the CSHO. It may be considered an admission.
d. You do not have to provide work or safety rules or other materials to the CSHO (unless they have been subpoenaed), but you may want to provide them. Get a dated, signed list (handwritten OK).
e. Be the CSHO’s “shadow” - take the same photographs and measurements. Take extensive notes on what the CSHO observes, persons who have been spoken to, and what has been said.
f. Decide whether to allow the CSHO to interview your employees on Company time. You have the right to have counsel present during interviews of management employees.
g. Do not permit demonstrations of your equipment or the interruption of the work of employees.
h. If unsure, ask the CSHO why a photograph, video or measurement was taken. Ask about the CSHO’s background and make a careful record of the responses.
i. Correct apparent violations during the inspection, and advise the CSHO that you have done so.
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During the closing conference:
a. Limit your participation to seeking information from the CSHO rather than providing information to him or her.
b. Ask the CSHO specifically why an apparent violation exists: What is the hazard? Where is the exposure? Why does the standard apply?
c. Try to determine exactly what the CSHO believes is required for abatement.
d. Do not agree or admit to anything. For example, do not agree that any hazardous condition exists, or that any particular time for abatement is adequate or reasonable.
e. Do not argue with the CSHO or try to talk the CSHO out of issuing a citation.
Additional Considerations for Fatality or Catastrophe Investigations
Fatality or catastrophe investigations require additional considerations. You MUST report any fatality to OSHA within eight hours. Beginning January 1, 2015, you must report to OSHA within 24 hours the in-patient hospitalization of one or more employees or an employee’s amputation or an employee’s loss of an eye, because of a work-related incident. Don’t fax or leave voicemail.
Notification may be made by telephone or in person to the OSHA Area Office nearest to the site of the incident, by telephone to the OSHA toll-free central telephone number, (800) 321-6742, or by electronic submission using the reporting application on OSHA’s public Web site at www.osha.gov/report_online.
In addition to OSHA, you may have to deal with paramedics/EMTs, police, a coroner’s office, the district attorney, news media, and the family of the worker(s) in the accident. You need to consider all these possibilities before an event occurs, so you already have a plan to follow. Don’t let these other participants divert you from your planned path.
You may want to send a memorandum to all employees urging cooperation, and that outside inquiries be directed to the Company spokesperson. If individuals speak with the authorities, they should tell the truth as to those matters for which they have personal knowledge, but not guess or speculate about the answer to any question. Pay special attention to the OSHA interviews: Managers can (and should) have representation, but you cannot insist on attending interviews of non-management employees.
Have a generic news media response prepared in advance: “We are sorry to learn today of a death/serious accident;” “At this time, the cause is still unknown;” “We are investigating the accident and will cooperate fully with others;” “We will take any steps necessary to determine what happened;” or “As further information is discovered, we will make it available as appropriate.”
Be prepared to resist persistent reporters: Stand firm. Simply say, “We don’t know what happened and we are trying to find out;” “The Company will not start speculating or guessing.” Don’t be bullied, and don’t be pressured into thinking you have to say anything more – you don’t. Appeal to the reporters’ sense of decency - “This was a serious accident; please let us try to find out what happened.” As a last ditch option, if they won’t take “no” for an answer, say you have nothing more to add at this time, say goodbye, and hang up or politely ask them to leave.
Dealing with the family: Keep lines of communication open. Make sure financial details are addressed promptly, so the family need not worry about them (e.g., workers’ compensation, funeral expenses, etc.). Return personal items promptly. Try to provide enough information so that the family isn’t driven to engage an attorney just to discover what happened. Remember that in a fatality investigation, OSHA will be in contact with the family at each step of the investigation.
Section 17(e) of the OSH Act provides criminal penalties for an employer convicted of having willfully violated an OSHA standard, rule or order when the violation results in the death of an employee.
Be on the lookout for signs all is not going well: subpoenas from OSHA rather than just requests; a desire to take sworn statements from managers, rather than just interviewing them; OSHA’s wanting to bring its own experts into the workplace, to the accident site; a different OSHA investigation team taking over the investigation, or the local district attorney’s dispatching attorneys and investigators.
General Recommendations: Never proceed with any investigation without a goal, a clear understanding, and a plan for what is about to take place. Always know what is at stake. Maintain confidentiality of your investigation findings. Remember: Anything could be disclosed at any time, so reports and statements must be based on solid, indisputable facts and carefully worded to present the truth unambiguously. Speculation, opinions and admissions must be avoided as they may be premature or inaccurate. Never write or record anything which you would not want to see on the front page or website of a newspaper. And, never allow your company to be outmatched by an experienced government investigator.
Authors: R. Lance Witcher, Kevin D. Bland, Phillip B. Russell, and Kenneth B. Siepman (Ogletree Deakins)