Major workplace accidents present a variety of legal challenges. While cooperating with a governmental agency (OSHA/MSHA/PHMSA/CSB or other)[1] during an accident investigation, the decisions you make can have an impact on the company in the future. The checklist below can help you protect the company against further liability.
1. Notify the overseeing regulatory agency.
Ensure that someone – preferably the direct employer – has notified the agency that regulates your worksite and requires accident notification about an employee’s injury or death. When you call 911, this will also trigger notification to local police.
2. Inform the employee’s next of kin.
This should be done promptly by a high-ranking company representative. In instances where the family has been notified by others, a personal visit by a high-ranking company representative may also be appropriate.
3. Determine death benefits, if any.
This information should be communicated to the employee’s next of kin as soon as possible.
4. Contact the workers compensation carrier.
The company should exercise caution in allowing the carrier’s representative to interview company supervisors and employees. The interviews and reports generated from those interviews may not be privileged.
5. Determine other insurance coverage.
Review any relevant insurance policies to determine coverage for the incident, for any follow-up litigation, and for hiring counsel to assist with investigation and defense.
6. Secure evidence/the accident scene/equipment.
Use effective means to prevent access or tampering at the scene of the accident and related equipment. Do not operate, move, or manipulate any equipment involved (and if law enforcement or government agencies have done so, document fully what was done, including company objections).
7. Prepare a short statement for the press.
You can (but do not have to) prepare a short statement for the press about the nature of the incident and important facts, such as sharing that the company is cooperating with the investigators and is honoring the family’s privacy. You can also have someone monitor what is being posted online by news media.
8. Launch an attorney-directed, privileged investigation, often including:
- Collecting all possible relevant documents, which may include training records, Standard Operating Procedures, safety policies, photos and videos, workplace exam cards, or Job Hazard Analyses.
- Determining if any equipment may have malfunctioned.
- Documenting the accident scene. (This includes photographs, videos, measurements, and eventually mechanical testing once the scene is released.)
- Interviewing witnesses and prepare them for possible government interviews.
- Protect reports on investigation findings and conclusions.
Be aware that root cause analysis and investigation findings may not be protected by any attorney/client or work product privilege. If you decide to draft a report, it should be prepared by counsel, or at the direction of counsel (and addressed to counsel). Mark any documents you prepare at the request of counsel as “privileged and confidential.”
9. Respond to government requests for documents, interviews, or investigations:
- Designate a point person to interact with the government investigator.
- Ask for document requests in writing, so you can keep track of the requests.
- Provide interviewees with a heads-up of what to expect and what their rights are. Offer a company representative (ideally counsel) to sit in on any supervisor interviews.
- Accompany government investigators on site.
Taking part in an accident investigation is a stressful, time-consuming, and emotional exercise. While dealing with the injury or loss of a valued team member, you must also keep calm and respond to various demands, often over a prolonged investigation period. Contact a Husch Blackwell Workplace Safety & Health attorney should you need any guidance or assistance following a workplace accident.
[1] OSHA = Occupational Safety and Health Administration, MSHA = Mine Safety and Health Administration, PHMSA = Pipeline and Hazardous Materials Safety Administration, CSB = Chemical Safety and Hazard Investigation Board