What to Do in the Aftermath of a Workplace Accident

Having an established, knowledgeable, and well-trained accident investigation response team can be a critical resource in the aftermath of an accident.

Among others, the investigation team should include the safety manager, members of the safety management staff, and safety team members. To make sure all these people work efficiently together, it’s important to establish a chain of command and assure that everyone on the team knows exactly what his or her role is following an accident.

Adele Abrams, firm president and an attorney at the Law Office of Adele L. Abrams PC, says an investigation team’s duties should include:

• Assessing the incident and determining its gravity
• Contacting counsel if appropriate
• Notifying regulatory agencies (if mandated)
• Directing efforts in the immediate area
• Evacuating and accounting for personnel
• Directing plant shutdown (if required)
• Coordinating site security
• Making authorized statements to the media
• Working with authorities

Cooperation with authorities is often required in these situations. Abrams says that you should learn ahead of time which agencies have right of entry, warrant requirements, and so on. You also need to understand the statutes and regulations at play.

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Additional pointers for cooperating with the authorities:

• Be present (where possible) during interviews with employees, managers, and witnesses.
• Only prepare written statements at direction of counsel (to maintain privilege).
• Understand your "right to remain silent." (Criminal prosecution is possible in some cases.)
• Know what documents must be provided.
• No false statements—ever.

Investigative Procedures

Well-established and effective investigative procedures are important after a incident because every accident should be viewed as an opportunity to learn and improve safety to prevent repeat accidents.

Abrams says the accident investigation team should:

• Define the scope of the investigation.
• Brief investigative team, and assign duties.
• Determine the type and extent of the incident and the damage.
• Evaluate the normal operating procedures.
• Review maps where appropriate.
• Secure the accident site and restrict access.
• Identify and interview witnesses.
• Review precursor events.
• Obtain evidence.
• Take photos, videotape the site, and obtain measurements.
• Analyze data (including police and government reports, autopsies, etc.).
• Determine causation and remedial measures.
• Conduct post-investigation briefing.
• Prepare a summary report.

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You should involve legal counsel in all of the above, where appropriate, to privilege work product, says Abrams. That said, there are also guidelines for non-privileged accident investigation documents:

• Where possible, all documents should be reviewed by counsel before providing to the government.
• Only authorized individuals should prepare investigative reports and memoranda.
• Recognize that information given to insurance companies may not retain privilege unless joint defense agreement executed.
• Consultants should not be identified by name in reports that must be disclosed.
• "Testifying experts" should refrain from preparing initial written reports.
• Hazards identified in accident reports should be remedied immediately.
• Keep opinions out of non-privileged incident reports and audit documents.

Documentation

If an accident is investigated by OSHA, Abrams advises you to be prepared to provide documentation such as:

• Non-privileged accident reports
• Self-inspection forms
• Sampling results
• Purchase orders
• Consultants’ logs
• Calibration records

OSHA can subpoena these documents prior to the issuance of citations, and can also compel testimony from the creator/custodian of records. Additionally, OSHA can obtain documents, post-citation, through the litigation discovery process.

Tomorrow, we’ll talk about the dealing with human issues following a serious accident and some legal issues to consider following a fatal workplace accident.