The ambulance is gone. You have completed your investigation and have your safety manager’s or investigator’s report on your desk. It is very detailed and not all the details are pretty. Nor is all of it specifically relevant to the incident. Now Cal/OSHA wants a copy of it. What do you do?

First, must you create a written report? The answer is "yes", but you won’t find that rule in the regulations. Section 3203, the "Illness and Injury Prevention Program" (IIPP) regulation, requires that employers establish procedures for evaluating workplace hazards, correcting them, and for investigating injuries and illnesses. The Appeals Board has held that failing to document these actions is tantamount to not doing them at all. So, even though a written accident/incident report is not specifically required by the regulations, you are responsible nonetheless for creating a written record documenting your actions.

Second, is Cal/OSHA entitled to a copy of the report? You are obligated to provide proof of compliance with the IIPP requirements mentioned above. And you will want to convince the inspector that you have an effective and operative IIPP. If you do not, the consequences are additional citations and higher penalties. So yes, Cal/OSHA is entitled to see a report, and you have every reason to provide one, but a copy of the 5020 will not be considered sufficient.

Third, must the report that you provide to Cal/OSHA contain all of the information you have uncovered? NO! Your company’s future after a serious accident is jeopardy. The legal ramifications of serious accidents have grown far greater over the last few years: Increased Cal/OSHA penalties, "serious and willful" misconduct liability at the WCAB, and an increased potential for civil and criminal actions as well. Handing over all of the information that you have uncovered can be tantamount to knotting your own rope.

Each case will be different, and your evaluation of how much or how little information to give up will vary. Here are some guidelines for you to follow in making those decisions:

1. The report that you provide to Cal/OSHA should be limited to the information required by section 3203, as it has been interpreted:
   1. Verification that an inspection was completed;
   2. Identity of the individual completing the inspection;
   3. The unsafe condition(s)or practice(s)identified during the inspection; and
   4. The action(s)taken to remedy the unsafe condition(s)or practice(s).

2. Include just the FACTS. Strip the report of all assumptions, conjecture and speculation. These have a way of being considered as facts when opponents get hold of them.

3. Consider strongly having your attorney take responsibility for supervision of the investigation from the outset. Legal actions arising from any serious accident are a probability, not merely a possibility, these days. It can only help you to have the benefits of legal review and advice early on. And the portions of the investigation that will want withheld from disclosure will be protected by the attorney - client communication and attorney work product privileges.

Fred will discuss crisis management techniques and this question of what constitutes an adequate report at the ASSE San Francisco dinner meeting in February. Jon Moldestad will co-present, providing his viewpoint as a safety professional who frequently investigates incidents for attorneys and employers. Follow this link to their home page.

Hope to see you there!