OSHA Ezine -- Accident Investigation: Meeting Cal/OSHA Requirements and Protecting Information Gained During Your Investigation Part II -- Walter & Prince, LLP

E-zine

Accident Investigation: Meeting Cal/OSHA Requirements and Protecting Information Gained During Your Investigation Part II
June 26, 2004
Issue 8

In our January E-Zine, we discussed an employer’s obligation to create a written report of a workplace inspection following an accident. The report must be provided to the Division during an investigation and must contain the following:

Verification that an inspection was completed;
The identity of the individual completing the inspection;
The unsafe condition(s) or practice(s) identified during the inspection; and
The action(s) taken to remedy the unsafe condition(s) or practice(s).

We stated in the January E-Zine that a conclusion as to the cause of the accident is not required and should not be included in the report. In this issue, we will address some of the questions received following the January issue.

First, let’s be clear that completing an investigation following a workplace accident is a Catch 22 in its truest form. After an accident the first set of questions in an employer’s mind are: “What caused it?” And "How can we prevent another like it in the future?” A second set of questions revolve around "How can we limit the liability of the company and the staff?"

The key to adequately addressing these seemingly inconsistent goals is to completely separate them. First, complete the accident investigation and report required by California law (Title 8 CCR section 3203). Limit the report to the four categories outlined above. Section 3, identification of unsafe conditions and/or work practices, should be limited to a single statement such as “Unguarded pinch point found at station three”. No discussion of how the condition contributed to the incident or why the condition existed should be included in the report. No conclusion, speculation or conjecture should ever be included in such a report. However, don’t forget to satisfy the fourth element by including a statement that the condition was fixed.

Second, devote the time and expertise required to complete a thorough investigation of the incident including analysis of the cause and prevention of similar incidents in the future. The extent of this investigation will, of course, depend on the nature and severity of the accident. In all cases, keep in mind that protecting the information gathered and generated during this investigation is paramount. Below are some issues to consider:

Admissions Against Interest

In the context of an OSHA investigation, an admission against interest is an out-of-court statement (either oral or written) that reflects badly on the employer and can be used against the employer by the Division as evidence on a particular issue.

The statement must have been made by a principal or supervising employee in order to be considered an admission by the employer. One of the best examples of an admission is the accident investigation report prepared by a supervisor which includes conclusions about how an accident happened. The report will be admissible against the company at a hearing.

Fifth Amendment Protection Against Self-Incrimination

The Fifth Amendment to the United States Constitution provides that a person may not be forced to give testimony against himself. The right is a personal one. A number of cases have held that the right does not extend to corporations or any organization. Further, the right is limited to potential criminal proceedings and has no bearing on civil liability.

In the case of an accident investigation report, the company cannot refuse to produce an accident report by asserting this right. Individual employees or principals of the company may refuse to testify or give statements on the grounds that their statements may be used in criminal proceedings against them. Prosecutors commonly solve this problem by granting one or more individuals immunity in order to compel their testimony against the company or other individuals. Again, this right has no application in civil lawsuits.

Attorney-Client Privilege

The attorney-client communication and work product privileges are designed to protect discussions and information shared between attorneys and their clients from disclosure. It also extends to communications between an attorney and experts or consultants retained by the attorney to perform under the direction of the attorney and on behalf of a client.

In the case of a serious accident, strong consideration should be given to having your attorney take responsibility for supervision of the investigation from the outset. With the clear potential for legal action arising from any serious accident 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 be withheld from disclosure will be protected by the attorney-client communication and attorney work product privileges.

Other News:

Fred will speak to the National Restaurant Association in Monterey, California, on July 12th on the topic “OSHA: An Overview and Update”.

Also, we have updated our article entitled “California Employer’s Liability for Discrimination in regard to Industrial Injuries: Labor Code section 132a”. We invite you to review the article and contact us with any questions that you may have. Click on “Articles” and then click on the title.

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