A terrible accident has occurred at your worksite. An employee operating a forklift made an errant turn, crashed into a support beam, and sustained serious injuries.
Workplace accidents create complex interaction of legal liabilities relating to worker’s compensation (if your employee was injured), OSHA (applicable to any worker onsite), tort law (particularly if a non-employee was injured), contract law, and criminal law. Employers must identify their legal duties and take appropriate steps to ensure they have a safe workplace going forward. This article provides a primer on how to protect employees, address legal liabilities, and respond to a workplace accident.
1. Summoning Emergency Responders
The employer’s first duty is to protect the safety and health of anyone at its worksite, including those involved in the accident. This may require the employer to contact emergency services, immediately investigate the facts of the accident, and provide clear direction to emergency responders to ensure they know where to go and how to protect themselves from any hazards.
2. Post-Accident Investigations
Employers with strong safety programs conduct comprehensive investigations into accidents to determine root causes and identify enhancements that can prevent future incidents. Post-accident investigation is a necessary component of a Safety and Health Management System, though it can be outsourced to a safety investigator. As explained below, an investigation may also be necessary to identify whether the injury or illness is reportable and recordable on the worksite’s OSHA Log, to obtain information to complete the OSHA forms, and to obtain information to complete a workers’ compensation first report of injury. Some OSHA regulations require post-accident investigations relating to specific hazards. Post-accident investigations further may be necessary to identify defenses and defend against OSHA or tort claims. OSHA sometimes bases Willful citations on a failure to take immediate and/or timely corrective action, which often can only effectively accomplished following a thoughtful investigation and analysis of the facts of the accident.
3. Reporting Serious Injuries to OSHA
Most employers understand that they are required to report serious injuries and illnesses to OSHA shortly after they occur. Even employers in low hazard industries who are not required to keep written OSHA records still face reporting obligations. Federal OSHA regulations require employers to report work-related fatalities within eight hours, and serious injuries within 24 hours (amputations, loss of eye, or hospitalizations for medical treatment). California reporting obligations are more onerous, requiring reporting within 8 hours for a “serious” injury or illness. Employers must comply with the law and report all injuries and illnesses as required by law.
The decision to report can be difficult for employers because it requires rapid analysis of dynamic incidents and medical situations, and the regulations related to reporting are numerous and complex. OSHA aggressively conducts inspections relating to reporting and issues non-serious citations for failure-to-report or late reporting. OSHA learns about incidents from worker complaints, medical providers, and news media reports, and often opens investigations prior to receiving an injury report from the employer.
The employer must analyze whether the incident is work-related and whether it must be reported to OSHA, often within hours of its occurrence. Qualified legal counsel can help advise on reporting obligations and legal analysis.
4. Recording Injuries on the OSHA Form 300 Log
Within seven calendar days of a work-related injury or illness that meets a recording criteria (e.g. days away from work), an employer who is required to maintain an OSHA Form 300 Log must also add the injury to the log and create an OSHA Form 301 Incident Report.
5. Evidence Preservation
Accident investigations should not be destructive at the initial stages. Employers should only disturb accident scenes to the extent necessary to provide emergency services to the injured and to protect any other employees from being injured. Further disturbance creates legal risks. Where litigation is reasonably anticipated, as would be the case in an accident involving serious personal injury, the employer has a legal duty to preserve evidence from the scene. Some states have specific OSHA regulations requiring scene preservation, meaning that disrupting the scene can result in an OSHA citation. Disturbing an accident scene can lead to an allegation of spoliation, an unlawful destruction of evidence that may result in an adverse inference against the disturbing party. Employer should heavily document accident scenes with photographs and video. Employers should ask investigating agencies to release accident scenes prior to returning the area to operation or resuming work. Employers may also consider inviting third parties with potential legal claims to review accident scenes before destroying evidence.
Employers also should send out a litigation hold letter, typically from counsel, for electronically stored information (“ESI”), to ensure that relevant emails and electronic messages are not lost.
6. Strategies for Accident Investigation
Following an accident, the employer should assemble a team to investigate, often including local management, a safety director, and risk manager or legal counsel. Then develop a strategy to gather physical evidence (artifacts), documents (contracts, work orders, etc.) and memorialize accident site conditions (e.g., photographs, measurements, drawings, etc.).
Legal counsel can direct the investigation and create legal privileges (attorney client; work product; self critical analysis). The investigation team is not required to prepare a written report and may choose not to do so. Written reports containing opinions on the causes of accident may constitute legal admissions, creating civil and criminal liability for the Company and individuals. Written statements of individuals which admit liability can be used to establish criminal liability against the Company and the individual (Miranda criminal protections will not apply). Employer must exercise caution when requesting employees to submit written statements about what happened, until evidence has been evaluated.
The investigation team should identify the root causes and consult with Management regarding an action plan to make corrections and enhancements. They then should document corrective actions to memorialize the Company’s good faith efforts to eliminate workplace hazards.
7. Inspection Management for a Reported Injury or Illness
An accident, particularly one that results in a serious injury reportable to OSHA, may trigger an onsite inspection by OSHA. For an onsite inspection, OSHA will have a particular location or equipment focus. OSHA will want to see the site of the accident or the equipment on which there has been a complaint. The employer should plan a route on how to get to that area of the worksite, minimizing exposure to other equipment or alleged hazards that OSHA will see. Sometimes the most efficient route will be walking around or driving in a car to remote parts of the worksite. For unprogrammed inspections based on injury reports or referrals the employer knows about, management should assume OSHA is coming onsite and can plan/map the route ahead of time. A qualified manager can walk the route to ensure there are no visible safety hazards (e.g. exposed wiring, unguarded edges), and to ensure prompt and proper correction of any hazards they identify.
8. Engage Qualified Outside OSHA Counsel
Because of these many legal liabilities, it is essential for employers to engage a qualified attorney experienced in accident investigation and OSHA. If OSHA opens an inspection, experienced OSHA counsel can be integral to proper OSHA inspection management. Improperly managed inspections can result in avoidable civil and criminal liability.
