A serious workplace incident rarely ends with the incident itself. For many employers, the next challenge arrives when the Occupational Safety and Health Administration (OSHA) begins asking questions. The steps taken during the first 24 hours often shape the course of the agency’s investigation and can affect the company’s position in any resulting enforcement action or litigation.
When a serious workplace incident occurs, most employers immediately focus on caring for injured employees, securing the worksite, and getting operations back up and running. Those priorities are appropriate, but another critical consideration often gets overlooked: preparing for the inevitable government investigation.
You should keep several points in mind in the hours following an incident.
Assume OSHA Will Investigate
Many employers believe an OSHA inspection only follows catastrophic accidents. In reality, OSHA conducts tens of thousands of inspections each year, many of which stem from employee complaints, referrals, or routine programmed inspections.
Once OSHA initiates an inspection, citations are common. You should therefore treat every serious workplace incident as though it may be reviewed by OSHA and potentially by opposing counsel, a judge, or a jury.
Preserve Evidence Immediately
One of the first priorities after an incident should be preserving relevant evidence. This includes securing the incident scene (when it’s safe to do so), preserving equipment, collecting photographs, identifying witnesses, and preventing routine document destruction that could affect relevant records.
A timely litigation hold can help preserve documents, electronic data, and physical evidence and reduce the risk of later spoliation claims. Evidence preservation is often essential to understanding what occurred and effectively responding to government inquiries.
Be Thoughtful About Written Records
In the immediate aftermath of an incident, supervisors and employees often feel compelled to document everything they know. While documentation is important, the quality of those records matters.
Incident reports, emails, handwritten notes, and witness statements are frequently produced to OSHA during an investigation and may later become discoverable in litigation. Speculation, opinions about fault, admissions of violations, or attempts to explain “why” an incident occurred before the facts are known can create unnecessary challenges. Instead, contemporaneous records should focus on objective facts—who, what, when, and where—and avoid conclusions that are unsupported by the investigation.
Involve Counsel Early
Experienced OSHA counsel can provide value long before citations are issued. Counsel can assist with preserving privilege where appropriate, coordinating the company’s response to OSHA, advising management during employee interviews, helping evaluate document requests, and ensuring that the internal investigation is conducted with potential litigation in mind.
Decisions made in the first hours after an incident can be difficult to unwind. Bringing counsel into the process early reduces that risk.
Preparation is the Best Defense
No employer wants to experience a serious workplace incident. Employers that prepare in advance are generally better equipped when one occurs.
Training supervisors on incident response procedures, establishing protocols for preserving evidence, understanding OSHA’s reporting requirements, and identifying legal resources before an emergency arises can significantly improve your ability to respond effectively. Although those steps cannot prevent an OSHA inspection, they can influence the course of the investigation and the company’s ability to defend itself.
Patrick J. Veters and Tiffany Dupree are attorneys with Jones Walker LLP in New Orleans and Baton Rouge, respectively, and can be reached at pveters@joneswalker.com and tdupree@joneswalker.com.