Editor’s note – Mark A. Lies II is an attorney in the Environmental, Safety, and Toxic Tort Group in the Chicago, Illinois, office of Seyfarth Shaw LLP. He is a partner who focuses his practice in the areas of product liability, occupational safety and health, workplace violence, construction litigation, and related employment litigation. Adam R. Young is an associate attorney in the Environmental, Safety, and Toxic Tort Group of Seyfarth Shaw practicing in the areas of occupational safety and health, employment law, and associated commercial litigation. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
The Occupational Safety and Health Administration (OSHA) requires employers to report certain serious injuries by telephone within 24 hours of the employer becoming aware of the incident. These include any employee inpatient hospitalization for treatment, amputation, or loss of an eye. Any fatality, including one caused by a heart attack, must be reported within eight hours.
Under OSHA guidelines, fatalities, hospitalizations of employees, and employers with a history of injuries could bring about an onsite inspection as a result of the initial report. Initially, OSHA has the option to request the employer conduct a Rapid Response Investigation (RRI) using an RRI form. OSHA reports that it requests an RRI form following most accidents and generally does not require an onsite inspection of the workplace.
Yet the RRI form responses could form the basis for a subsequent OSHA inspection. Accordingly, employers need to be careful about what is put on this form to avoid an “admission” of liability that could be civil or criminal. Additionally, since the RRI responses are not legally privileged, they are discoverable in civil, third-party litigation.
Not a Safe Harbor
While OSHA claims that the RRI creates a “safe harbor” for an employer’s internal investigation, it can use employer admissions on this form to conduct an investigation and will interview managers and employees to confirm the specific facts or statements made in the response. When confronted with the prior statements, managers may have a difficult time explaining the context of factual misstatements of non-compliance or erroneous factual information on the RRI form. Citations can be based on any subsequent management admissions.
As reported at the American Bar Association’s recent OSHA conference, the agency estimates that the majority of citations are based on the employer’s admissions of violations, in documents, and spoken to the investigator. Thus, management admissions to OSHA in the RRI pose a risk of triggering an onsite inspection and citations.
General Recommendations for Response
When answering the RRI questions, employers should follow some general recommendations.
Be truthful: First and foremost, RRI responses must be 100 percent factually accurate. Do not make any misstatements. The United States Department of Justice regularly prosecutes employers and managers who make material misstatements to federal officials as obstruction of justice or a false statement, both of which are a felony.
Keep it simple and short: Employers do not need to provide lengthy responses on the RRI form. Include the minimum amount of essential information to clearly describe what occurred and the company’s corrective actions taken, if any.
Answer the questions asked: Limit responses to the questions asked and do not digress into potential hypothetical situations or events.
Avoid speculation: The company should only report what witnesses actually saw or what the company firmly knows from physical evidence and not what someone thinks “may” have occurred. Speculation on the cause of the accident can create unnecessary admissions. In addition, there is no regulation that requires the employer to conduct a root cause analysis in order to complete the RRI form. In the case of a serious accident, if the employer decides to conduct a root cause analysis, it should consider having its legal counsel involved from the outset to direct the investigation and create legal privileges for the root cause analysis, attorney client and work product, which will protect the investigation from disclosure in OSHA proceedings or other litigation.
When it doubt, seek advice from counsel experienced in OSHA: If the employer engages experienced counsel, it can avoid preparing an RRI response that could create potential liability.
Specific Responses on the RRI Form
If reporting an incident on an RRI form, take particular note in answering the following questions.
Section C1: Date and time of the incident: If there is no eyewitness testimony, do not speculate as to the time of the accident. A range of dates can be provided if the accident occurred in the late evening and no one knows for sure when it occurred.
Section C3: What was the employee doing just before the incident occurred? If there is no reliable eyewitness testimony, do not speculate as to what the employee was doing at the time the incident occurred. A permissible answer would be, “Unknown, no eyewitness testimony.” If the company wants to state a best assessment based on physical evidence as to what occurred, an example could be, “Unknown, no eyewitness testimony. The company believes the injured employee was loading widgets into the grinder. Investigation continues.”
Section C4: What happened? A simple description of what occurred is sufficient. No regulation requires the employer to do a root cause analysis on the accident and to provide an exhaustive chronology of facts. Likewise, employers do not have to generate written employee statements or photographs to submit with the RRI. Again, if there is no reliable eyewitness testimony, do not speculate as to what the employee was doing at the time the incident occurred. If the company wants to provide basic detail, a proposed answer could be, “Co-workers saw the injured employee remove a machine guard and place his hand in the operational grinder machine.”
Section C5: What was the injury or illness? Again, a simple statement is appropriate. Employers are not required to provide a detailed medical description of the injury or illness. If an employee injury or illness has been diagnosed by a doctor, provide that summary diagnosis. If the injury is clear (e.g., finger amputation), provide that description. Otherwise, do not speculate beyond common knowledge; simply state, “The employee injured his finger” or, “The employee’s finger was amputated.”
Section C6: What object or substance directly harmed the employee? Again, if there is no reliable eyewitness testimony or unquestionable physical evidence, do not guess as to what the employee was doing at the time the incident occurred. Be careful speculating as to what occurred: “The employee was discovered on the floor next to a fallen ladder. It is believed that he was injured and may have fallen. Investigation continues.”
Section D: What caused or allowed this incident to happen? OSHA’s instructions ask for a full analysis of the equipment, policies, and compliance. Keep the answer short and limited to known facts. If the employee was properly trained and did not comply with his training or use an appropriate tool, practice, or safety device, which would constitute employee misconduct and a potential defense to an OSHA violation, describe the misconduct.
Section E: Corrective actions taken to prevent future incidents: OSHA is less likely to conduct an inspection if it believes that corrective actions to prevent future accidents have been taken. Taking corrective action is not an admission of liability for OSHA violations, but it should not be described in terms of an action that the employer “should” have taken before the accident and “failed” to do so, which would be an admission. Employers should specify what actions have been taken following the accident. The most common actions would be retraining employees on proper safety procedures, use of tools or safety devices, or wearing of personal protective equipment.
It is recommended that employers utilize an RRI form to respond to OSHA, although the employer always has the option of a narrative in letter format. In either event, the response must be factually accurate and not based on speculation, which may not be correct. In addition, the employer is not required to admit any violations in the RRI that can occur if the employer does not limit the response to known facts about the event and description of any corrective action. In the event of a serious injury or fatality, engagement of experienced OSHA counsel should be considered to create legal privileges.
June 2017 RENDER | back