2/29/2016

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Legally Effective

Incident Investigations

Adele L. Abrams, Esq., CMSP

Law Office of Adele L. Abrams PC

www.safety-law.com

2/29/2016

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Overview

• MSHA and OSHA have new, stringent incident reporting

requirements

• More inspections will be “event driven”

• Every accident case has potential for civil and criminal litigation in

addition to OSHA/MSHA penalties

– New MOU between DOL and DOJ on criminal prosecutions of

OSHA and MSHA violations

– Increased use of contractors and temporary workers heightens

legal complexity of cases

• Both workplace accidents and other crisis situations can place

workers at risk and require advance planning and team coordination

Definitions - Accident

• An accident is any unplanned event that results in personal injury or in property damage. – When the personal injury requires little or no treatment, it is minor.

– If it results in a fatality or in a permanent total, permanent partial, or temporary total (lost-time) disability, it is serious.

– Property damage may be minor or serious.

Investigate all accidents regardless of the extent of injury or damage.

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Crisis Management Goals

• Prevention: Provide safe and healthful workplaces, audit regularly, regulatory compliance!

• Detection: Accident investigation (actual and near-miss), monitor injury/illness data for site and industry trends

• Recovery: Regain confidence of publics

• Measurement: Post-incident evaluation to remediate root causes of problems (not “quick fix”)

Crisis Management Plans – General

• Evacuation plans

• Fire protection plans

• Safety and health

programs

• Environmental

programs

• Internal corporate

policies

• Liability insurance

and worker’s

compensation

• Plant closing policies

• HazMat plans

• Process safety

assessments/JSA

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Crisis Management Pitfalls• Lack of planning

information (hazard

analysis, company

policies, site-specific

data)

• Failure to communicate

with support systems in

advance (police and

emergency responders)

• Ignoring warning signs

(near miss events)

• Failure to understand

statutory and regulatory

obligations triggered by

emergencies

• Poorly defined

responsibilities for key

organization personnel

• Poor understanding of

foreseeable risks and

DENIAL (“it can’t happen

here”)

Incident Investigation Staffing

• When accident or serious crisis occurs, consider if it

can it be handled by:

– On-duty personnel only

– Company personnel (on and off duty)

– Company personnel plus outside counsel/consultants

– All of the above plus emergency responders and/or

government investigators.

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OSHA Serious Injury Reporting

Final Rule took effect 1/1/2015 – report to local office during normal

hours or call 1-800-321-OSHA (6742)

Rule expands the list of severe work-related injuries that all

employers must report to OSHA.

The revised rule retains the current requirement to report all

work-related fatalities and 3+ hospitalization incidents within 8

hours

Adds requirement to report all work-related in-patient

hospitalizations, amputations and loss of an eye within 24 hours

Employers only have to report an inpatient hospitalization,

amputation or loss of an eye that occurs within 24 hours of a

work-related incident

OSHA Triage on Reports

In determining whether OSHA will send an inspection team, they ask:

What was the injured EE doing just before injury;

What tools, equipment or materials was he using;

What directly caused the harm;

Is the hazard that caused the harm still in the workplace;

Could other persons potentially be harmed;

What steps have been taken to remove the hazard;

Has there been a similar incident or near miss?

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OSHA Triage on Reports Priority inspections for I/I reports will be given to Category 1 reports:

Fatalities or at least 2 persons hospitalized;

Injury to worker under age 18;

Employers with known history of multiple injuries (same/similar events in

past 12 mo);

Repeat offenders (those with history of egregious violations, willful and

repeat violations, and failure to abate situations)

Employers in SVEP

Those employers covered by National Emphasis Program

OSHA will also give priority to those workplaces with whistleblower

complaints pending, those in VPP or SHARP, and those involving

temporary workers or health issues

OSHA Emergency Response Plans

• Pre-emergency planning and

coordination with outside

parties

• Personnel roles, lines of

authority, training &

communication

• Provisions for recognizing and

preventing emergencies

• Provision of PPE for workers

and other emergency

equipment

• Provisions for site security and

control

• Delineation of safe distances

and places of refuge

• Decontamination procedures

• Emergency medical treatment

& first aid

• Critique of related responses

and follow-up

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Statutory/Regulatory Obligations - Other

• MSHA – Immediate reporting of certain types of incidents; codified requirements for mine rescue teams, communications and written plans – 30 CFR 50.10 (accident defined in 50.2(h))– Emergency rule requires 15 min. notice - $5000 minimum penalty – for

failure to report fatality or injury with reasonable likelihood of death

• Safe Explosives Act – Companies must report any missing explosives under threat of criminal prosecution and heavy fines.

• Chemical Security – Congress considering additional requirements for reporting, responding, and government investigations

Environmental Incidents• On 12/9/15, EPA launched “eDisclosure” - Notice of eDisclosure Portal

Launch: Modernizing Implementation of EPA’s Self-Policing Incentive

• EPA created centralized web-based “eDisclosure” portal to receive and

automatically process self-disclosed civil violations of environmental law.

• Under eDisclosure, large and small businesses will quickly be able to

resolve certain routine types of disclosures

• EPA will continue its self-disclosure policies and provide penalty mitigation

and other incentives for companies that self-police, disclose, & correct

violations

Make sure to timely report: Oil spills (report discharges to the National

Response Center (NRC) at 1-800-424-8802) and Hazardous substance

releases (in Superfund Reportable Quantities)

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EPA Required Report Info• Your name, location, organization,

and telephone number

• Name and address of the party

responsible for the incident; or name

of the carrier or vessel, the

railcar/truck number, or other

identifying information

• Date and time of the incident

• Location of the incident

• Source and cause of the release or

spill

• Types of material(s) released/spilled

• Quantity of materials released/spilled

• Medium (e.g. land, water) affected by

release or spill

• Danger or threat posed by the

release or spill

• Number and types of injuries or

fatalities (if any)

• Weather conditions at the incident

location

• Whether an evacuation has occurred

• Other agencies notified or about to

be notified

• Any other information that may help

emergency personnel respond to the

incident

Investigative Procedures

• Define scope of investigation

• Select and brief investigative team, and make work

assignments:

– Determine type and extent of incident and damage

– Evaluate normal operating procedures

– Review maps where appropriate

– Secure accident site and restrict access

– Identify witnesses and isolate

– Review precursor events

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Investigative Procedures

• Interview witnesses

• Obtain evidence

• Take photos, videotape site, and obtain measurements

• Analyze data (including police and government reports, autopsies, etc.)

• Determine causation and remedial measures

• Conduct post-investigation briefing

• Prepare summary report

Involve counsel in all of the above, where appropriate, to privilege work product.

Document IssuesDocuments sought by OSHA/MSHA can include:

• Non-privileged accident reports

• Audits/self-inspection forms,

• Sampling results,

• Purchase orders,

• Consultants’ logs,

• Workplace inspections, pre-op equipment exams

• Training records and supporting materials

OSHA can subpoena these documents PRIOR to the issuance of citations, and can compel testimony from the custodian of records

MSHA can compel documents per Sec. 103(a) and 108(a)(1)(e) of Mine Act – can enforce through injunctions and citations (personal penalties too)

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Document Issues

• Documents containing opinions should bear the caption,

“Privileged and Confidential, Attorney Work Product,

Prepared in Anticipation of Litigation”

• Identified hazards should not be referred to as violations.

• Non-required records should never be released without

corporate or legal approval.

• Always require OSHA/MSHA to request non-mandatory

records in writing.

Incident Response Team

• Team approach critical – cannot rest on single

individual who may be unavailable (or injured)

when crisis occurs!

• Chain of command must be established to:

– prevent confusion, and

– delineate authority.

• Adequate back-up must be provided and trained

in case of prolonged crisis.

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Team Leader Responsibilities• Team Coordinator’s duties include:

– assessing situation and determining gravity,

– contacting counsel if appropriate,

– notifying regulatory agencies (if mandated),

– directing efforts in area,

– evacuating and accounting for personnel,

– directing plant shutdown,

– coordinating site security, and

– making authorized statements to media.

Cooperation With Authorities• Learn ahead of time which agencies have right of entry,

warrant requirements, etc.

• Understand statutes and regulations

• Be present (where possible) during interviews with employees, managers, witnesses

• Only prepare written statements at direction of counsel (to maintain privilege)

• Understand “right to remain silent” - criminal prosecution is possible

• Know what documents must be provided

– NO FALSE STATEMENTS – EVER!

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Legal Aftermath: Occupational Accidents

Know your rights ahead of time –

They include:

the right not to speak to OSHA’s/MSHA’s representatives at all

the right to have a representative of own choosing present if you voluntarily decide to give a statement.

REMEMBER: You have no legal obligation to give a statement, in the absence of a subpoena or deposition notice.

Legal Aftermath: Occupational Accidents

Never leave the inspector unaccompanied at the worksite!!!!!!!

Know the rules -- think in terms of affirmative defenses”–lay groundwork

Take comparative IH samples

Try to get workers’ consent to be present during interviews (or get copies of their statements) – but avoid coercion!

Write down inspector’s statements

Replicate drawings, measurements and photos

Don’t perform “demonstrations” for the CO

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Legal Aftermath: Occupational Accidents

Do NOT

– LIE

– Admit knowledge of violations

– Tell workers not to talk to federal investigators

– Agree that a violation exists

– Provide non-statutorily required documents

– Guess or speculate

Legal Aftermath: Occupational Accidents

Workplace fatalities or serious accidents can result in criminal charges:

REMEMBER . . .

The OSH Act and Mine Act are criminal statutes.

Imprisonment is possibility where fatality or serious injury occur or there is CONSPIRACY

False statements/falsified documents can result in fines/prison time

State officials can prosecute under criminal statutes –e.g. negligent homicide, manslaughter, reckless endangerment, assault and battery

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Legal Aftermath: Occupational Accidents

• Emerging tort area – negligent supervision & training

– Some states allow workers/families to forego Worker’s Comp exclusive remedy & sue for wrongful death or PI if “gross negligence” involved or where election of remedies allowed

• Employers are negligent if fail to eliminate or reduce reasonably anticipated risks

• Employers are negligent if fail to provide adequate security

• OSHA’s “general duty clause” sets statutory standard of care– OSHA/MSHA citations come in as proof of “negligence per se”

• Foreseeable risks include: industrial accidents, workplace violence, terrorism, product tampering

Post-Accident Analysis

The immediate crisis has passed … now what?

Analyze hazards involved (equipment, materials,

work practices, procedures, work environment,

health issues)

Determine which controls were in place, and which

were lacking or failed in time of emergency

Train/retrain employees

Inform everyone with need to know of corrective

actions (and get necessary funding authorization)

Implement actions needed to remediate conditions,

and

Follow-up to ensure results achieved to prevent

future incidents

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Accident Investigations: Causation Analysis

– Causes may be direct (unsafe release of energy or

hazardous material) or indirect (unsafe acts and

conditions).

– Management decisions/indecisions may play role

Failure to investigate “near misses” increases

likelihood of REAL catastrophe occurring! Accidents

and near-misses may have 10 or more events that

can be “causes” and could be prevented by

eliminating one or more such “events”

Post-Incident Human Factors

• Update employees regularly (don’t let them learn through media reports or “grapevine”)

• Advise them of potential follow-up investigations by OSHA, MSHA, EPA etc.

• Don’t forget the survivors “after the dust settles” – EAPs and counseling are critical

• Avoid “blaming” individuals – risk of suicide or worse

• Provide reassurance through process but don’t make empty promises

• Caring contact with victim’s family is essential

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QUESTIONS???

Adele L. Abrams, Esq., CMSPLaw Office of Adele L. Abrams P.C.

safetylawyer@aol.com

301-595-3520 – Eastern

303-228-2170 – Western