Following an accident at work or a near miss, employers must review the incident to prevent future safety issues or to meet regulatory requirements, but they must ensure that they do not create documents that can be used against them, experts say.
Although accident reviews are often required to comply with the reporting obligations of the US Occupational Safety and Health Administration, they can be detectable unless employers take action to create attorney-client authority during the investigation and written review, they say.
"Most employers are quite comfortable with what they need to do in an investigation, but are not always clear about the procedure for who does the investigation, how to document it, and this is especially problematic when you have health and safety leading. the show, "said Cressinda Schlag, attorney at law in Austin, Texas, Jackson Lewis PC Office
Without legal guidance, an investigative team can develop a report or document that the company was wrong or in violation of a health or safety regulation," she said. Investigation documents, if not protected by attorney-client privilege, can lead to higher labor compensation costs and loss of the exclusivity provision of the Workers' Compensation Act if it is found that an employer had a serious breach of employee safety, says Kate McMahon, Washington-based partner at Conn Maciel Carey LLP during a webinar recently hosted by the law firm, however, is crucial for health and safety programs in the workplace and can eliminate hazards, identify causes of accidents beyond an employer's control and demonstrate the effectiveness of a safety program, which can lead to reduced workforce, she said.
But there are "significant risks that can be created by conducting these investigations and reviews, especially with written product," McMahon said.
Invoking the right of attorney-client can prevent records loss of sensitive information, but "the key is that the document must be made to prepare for expected or existing disputes …. If the document is created during the regular implementation of a health and safety program, it is not covered, she says.
To invoke lawyer-client privilege, either internal or external lawyer be part of the investigation.the team and the individual must be clearly involved in order to provide legal advice, says Caroline Donelan, partner at the Los Angeles office in Blank Rome LLP.
For many investigations in the workplace, it is unnecessary to keep information private, but employers should specify which types of accidents carry a sufficiently high risk of having internal or external advising re involved, said Schlag.
For example, in a situation where an OSHA investigation is likely, an employer may want to use a lawyer-client. privilege "strategically " by one team conducting a non-privileged investigation that would be open to OSHA, while another group conducts a "deep dive under privilege" with advice, Ms McMahon said. [1
However, interview notes and statements from an investigation can be detectable, and only important information should be recorded, Donelan said.
"What I like to do is be very wise with these interview notes and then prepare some kind of legal summary, she said." Include in the summary of facts what you do, but make sure it is a fully privileged legal analysis or legal recommendation. " "Employers should also protect themselves from waiving the lawyer-client privilege," McMahon said, "even inadvertently sending information to someone in the wrong team can waive the privilege" not just for that document but the object, "she said. [19659002"WhileC-suiteexecutivesandhigh-levelexecutiveswouldlikelybeconsideredtobeagentsofacompanyconductinganinvestigationandentitledtoattorney-clientprivilegeprotectionlower-levelexecutivesmaynotbecovered"saidDonelanpartneratConnMacielCarey'sWashingtonoffice
OSHA also does not have a standard standard policy for requesting audit reports and will only "request audit reports if they have reason to believe there is a danger present," he said. elected president of the American Society of Safety Professionals, based in New Meadow, Idaho, said he "has never been an advocate" for holding an incident report or reviewing privately through attorney-k lient privilege. He noted that OSHA does not have the manpower to investigate the majority of documented injuries.
"The whole concept of doing (an investigation) is fact finding to find out what went wrong," Giles said. “Our basis for how we approach this is rather than holding on, taking advantage to get the best out of it. If we had problems with our process or our program, we must make it available to our employees and subcontractors. "
It's crucial that employers use information they have learned from an incident investigation," said Jeff Corder, Clearwater, Florida-based Loss Control Vice President at AmTrust North America Inc.
"I have seen companies that have amazing safety programs, fantastic accident investigations and self-audits … then they just sit in the box and do nothing with them, "he said." If something is wrong and you do not fix it, "the employer OSHA risks fines and other liability, he said.