Workplace Safety and Health

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Every organization must provide a safe working environment for its employees and follow all applicable laws and regulations governing workplace safety and health. To these ends, an organization should have a comprehensive safety and health policy, training and procedures that address (1) all applicable federal (Occupational Safety and Health Act, or "OSHA"), state and local laws and regulations, and (2) any other safety and health topics that are relevant to the organization, its industry or its employees' job functions.  In addition, all organizations should reward good safety behavior, take disciplinary measures for safety violations when necessary and appropriate, and investigate any accidents to prevent recurrence.

Drafting occupational safety and health compliance audits and investigation reports following workplace accidents can result in significant safety benefits, minimize litigation risks, and reduce risks resulting from OSHA enforcement actions.  However, audits and investigation reports can pose risks of their own if they are not written carefully and under the attorney-client privilege.  

OSHA has an informal policy by which the agency has stated that it will not routinely request self-audit reports at the initiation of an inspection and will not use any such reports to identify hazards upon which to focus during an inspection.  Nonetheless, the agency has the right to demand all relevant non-privileged audits during the course of an inspection, and frequently makes such requests. OSHA then uses audit and incident investigation reports as a roadmap to assess violations of the agency’s safety standards, to impute knowledge of such violations to the employer, to determine the characterization of safety violations for which citations are issued, and to assess proposed penalties.  The findings in any such audit or incident investigation reports may be then used in OSHA (and EPA) enforcement proceedings, workers’ compensation proceedings where an employee has been injured, and at times in follow-on criminal or third party litigation.

As such, it is essential that employers who draft safety audits or incident investigation reports do so in a manner that maximizes the safety and health benefits while minimizing the possibility that audit or investigation findings could be used against the company in subsequent legal proceedings.  

First, companies should involve either in house or outside counsel at the very beginning of the audit or investigation of a significant incident, and should make clear to all employees involved that the audit or investigation is being conducted at the direction of legal counsel.  Employees should be instructed not to share or disclose communications with counsel or at the direction of counsel, and should maintain the confidentiality of documents that constitute attorney work product.  

Next, companies should draft audit or incident investigation reports following some common sense rules that will ensure that audit or investigation findings are helpful rather than harmful in any follow-on litigation or agency enforcement actions.  Reports should be drafted to highlight factors that mitigate any safety incidents or deficiencies (e.g., recent training that has been conducted, the fact that no prior similar incidents have occurred, etc.).  Descriptions of issues of concern, action items, and recommendations should be drafted with care and avoid speculation, exaggerations, or overstatements.  Reports should also avoid references to possible criminal issues, discussions of money or the cost of safety improvements, or discussion of the failure to act or delay in addressing deficiencies identified during the audit or investigation.

Key Resources

For your convenience, ACC has compiled the following key resources to assist you in your compliance efforts.

For more try searching ACC's online library for "Safety and Health"

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