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Catastrophic Workplace Accidents: It Could Happen To You

Fri, 08/07/2009 - 8:00am
Edwin G. Foulke, Jr., Partner, Fisher & Phillips LLP

While the American workplace is safer than ever, hardly a week goes by without a news report concerning a plant explosion, a chemical release or a fatality arising out of a workplace accident.

The most recent government data shows that there were approximately 5,500 workplace fatalities in 2007, which was the lowest in recorded history. Of these workplace accidents, 25 percent occurred in supposedly “low risk” industries, including retail, hospitality, and professional financial sections. Clearly, one of the most troubling challenges facing any employer is how to deal with a workplace fatality or catastrophic accident. 

Anytime a fatality or catastrophic accident arises in the workplace, the employer will have to deal with at least three distinct audiences. First, most catastrophic incidents will initiate a government investigation as to the cause. Second, the employer is likely to be inundated by the news media as they attempt to cover the “breaking story.” Finally, and most importantly, there will be a need to communicate with grieving survivors, whether they are family members of the deceased employees, eyewitnesses to the incident, or simply co-workers who feel a sense of loss when their contemporaries are killed or injured. How does an employer prepare to deal with these competing needs from these different audiences and effectively deal with the workplace fatality or catastrophic accident?

The answer can be summarized in one word -- preparation. Every employer must not only prepare, but anticipate each potential workplace emergency before it occurs. However, employers should realize that preparation does not always mean prevention; therefore, every employer should be prepared to implement its emergency plan at a moments notice. 

Fatalities, injuries to employees, damage to property and other traumatic events generally require an immediate and decisive response. The purpose of the plan is to minimize the employee’s potential for injury during an emergency, while at the same time preparing and training to effectively deal with the emergency.

It should be noted that OSHA has an emergency action plan standard (29 C.F.R. 1910.38), which sets forth the policies and procedures to be followed in dealing with emergencies. Under this standard, employers are first required to do an assessment of the range or types of emergencies at their facility, including worst case scenarios.

The emergency action plan should include:
• The preferred method of reporting the emergency or accident
• An evacuation policy, including emergency escape procedures and route assignments
• A list of contacts both inside and outside the facility that includes telephone numbers and email addresses
• A list of agencies and emergency personnel who should be contacted
• Procedures for employees that remain for shutdown of critical operations
• Assignment of rescue and medical duties either inside or outside the facility
• Designation of assembly areas and procedures to account for employees
• Sites of alternative communication centers and operation procedures
• Methods to alert employees of an evacuation, which also includes the evacuation of disabled employees

Any emergency action plan should include the role of the emergency response coordinator in dealing with the emergency. Specifically, the coordinator should have the ability to assess the situation and determine the extent and scope of the emergency that exists. The coordinator will supervise all the efforts in the emergency response, including coordinating with outside emergency services and directing the shutdown of facility operations.

Furthermore, the emergency action plan should include training to address each employee’s specific roles and responsibilities during an emergency evacuation or catastrophic event. These include identifying the threats, hazards, and protective actions that need to be taken, the notification warning and communication procedures that will be utilized in an emergency situation, and the means of locating family members during any type of emergency. Training should also address the emergency response procedures, and for those designated employees, the location and use of common emergency equipment and the emergency shutdown procedures for each area. 

In responding to a workplace emergency, it is important to deal first with the emergency. This means addressing the medical needs of plant personnel and any other injured individuals, which may include designated first responders from the plant workforce as well as notification of EMS units and/or the local emergency rescue squad. Another aspect of dealing with the emergency is the contact with law enforcement and fire protection personnel. Employers should have all the necessary contact information as part of their emergency action plan.

After the appropriate emergency or medical personnel have been contacted, the next step is to notify the appropriate corporate officers regarding the emergency. It is important to notify the appropriate corporate legal department, which is responsible for managing the risk and avoiding potential legal liability. (A determination will have to be made if outside legal counsel is needed based on the scope of the workplace emergency.)

The corporate or local human resource department will need to deal with the human needs, carefully and compassionately from the very beginning. Notification of the corporate or company management personnel responsible for operations at the facility will be important in assisting the follow-up and recovery of production operations.

In any fatality or catastrophic accident, the company must respond to the needs of the families of the victims. This includes providing accurate information in a timely fashion in order to avoid rumors. It is critical that the employer make every effort to keep family members informed of all developments, good or bad. 

Informing family members that their loved one has been killed or injured is not only exceptionally difficult, it is a task which is greatly important to those who deliver and those who receive this message. Notification to a family member should always be done in person -- never by telephone -- by a team of company representatives, rather than a single individual. The “notification team” should consist of a member of the employer’s operating management team, a company’s human resource representative, and a company EAP counselor. It should take place as soon as possible following the traumatic event and prior to any meeting between worker’s compensation representatives and members of the family.

The primary purpose of the notification meeting is to provide information to decedent’s family. Specifically, the notification meeting is to inform the families of the death, offer support to the family, provide a list of useful names and phone numbers of company representatives, provide benefit information to the family, respond to questions, and provide a name of a contact person to be the family liaison with the company. The employer should ensure that the insurance issues are handled in a timely fashion without a lot of red tape. 

In addition to the affected family members, employers will have to respond to the needs of the remaining workforce. Providing accurate information to employees regarding operations schedules and medical updates on injured or deceased employees is critical in handling any workplace accident. Employers need to ascertain if witnesses to the accident or those who are involved, but not injured, need counseling services. It is also important to realize that business continuation following a fatality or catastrophic accident will depend on the cooperation of the employees at the facility. Therefore, keeping them informed is critically important. 

Another critical area in dealing with any catastrophic workplace accident will be dealing with the news media. The employer should appoint one spokesperson for the company who would have responsibility for dealing with all media communications. Controlling the distribution of information to the media will be important in order to stop the development of rumors or speculation on how the accident or incident occurred. Employers should also control access to the company’s property by the media.

Providing only known facts to the media and not speculation will be critical. An employer says no more than what is necessary. When dealing with the media, clearly the response “no comment,” should be avoided, and whenever possible, a positive message about the company’s role as a good corporate citizen should be disseminated. Also, the employer must demonstrate to not only the media, but also to the employees and the public in general, that it is taking the accident seriously, that the company is fully investigating the accident or incident, and that it is doing all it can to ensure that accidents don’t happen in the future. 

While the accident is still fresh in the witnesses’ minds, the company needs to begin its accident investigation. Such efforts begin with the appointment of an accident investigation team with the responsibility and authority to fully investigate the accident. It is critical that the investigation team stick with the facts and not include speculation and conjured opinion in determining the cause of the accident. The employer should determine what other external investigations are occurring and determine what role inside and outside counsel should have as part of the investigation.

The investigation will identify not only the witnesses to the event, but all evidence resulting from the fatality or catastrophic accident. The employer should assure that there is no obstruction of evidence and avoid spoilage of any documents.

As in any accident investigation, the employer should anticipate an attempt to discover or obtain the documents generated by the accident investigation team by outside governmental agencies or plaintiff’s attorneys. Such documents should be appropriately marked as being a “draft” prepared at the direction of an attorney. The document should be marked “confidential and privileged, attorney-client communications.” All “draft” accident investigation documents should be reviewed by an attorney before they are completely in final form. 

If there is a fatality or a hospitalization of three or more employees as a result of a workplace injury/accident, every employer is required to report the incident within eight hours to OSHA under its recordkeeping requirements. OSHA investigates all fatalities and catastrophic accidents. For catastrophic events, such as fires, explosions, workplace violence, etc., the employer most likely will receive an OSHA inspection, even if there is no reporting obligation. Generally, OSHA will conduct an inspection based upon an employee’s complaints, referrals from other government agencies or inquiries from the media.

In dealing with incidents involving fatality and catastrophic accidents, it is likely that the employer will also have to handle requests from other third parties. These third parties include equipment manufacturers, contractors, property owners, vendors, and attorneys representing the injured or deceased employees. It will be critical to effectively deal with these third parties, because they represent potential financial and legal liability to the company. 

In summary, employers can effectively deal with workplace fatalities and catastrophic accidents, but only through proper planning and execution. It is virtually impossible for an employer to deal with all the competing audiences which assemble during a catastrophic accident or fatality without proper planning. In fact, effective planning may help reduce the pain and suffering suffered by the surviving family and co-workers, while at the same time allow the employer to resume normal operations quicker and reduce the financial and potential legal burdens placed on the company.

Fisher & Phillips LLP is a national labor and employment law firm. For more information, visit http://www.laborlawyers.com/

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