A U.S. District judge in Illinois ruled recently that Grinnell Mutual Reinsurance Company had to turn over to OSHA loss control reports, applications for insurance coverage, correspondence, site safety inspections and other safety-related documents it prepared for a grain company where a fatal accident occurred.

As Matt Morrison of the Sherman and Howard law firm wrote, this decision underscores the need for companies to immediately consult legal counsel after an accident. Not only will that help the company understand its legal rights, it may also allow the company to conduct its internal investigation under the auspices of attorney-client privilege, which would protect the investigation from outside disclosure.

Recognizing that OSHA, as well as plaintiffs in lawsuits, will seek safety-related documents after an accident, Morrison offered the following recommendations to employers, insurance companies and consultants:

• Record the known facts, not opinions or speculation. Speculation or opinions, particularly as to the cause of an accident or the existence of a hazard, are often misinterpreted as admissions as to what actually happened. If a cause is only “suspected” or “unknown,” say so.

• Avoid placing blame or admitting legal violations. Statements that supervisors violated company rules or committed “OSHA violations” can significantly impact a company’s liability.

• If a problem is noted, always follow up and document that corrective action has been taken. Almost all safety audit forms have a space to note recommended or completed corrective action. Failure to take corrective action may be construed by OSHA as willful conduct.

• Be truthful. A false statement in a safety audit can be very damaging. Make certain that all audits are carefully reviewed and, if necessary, corrected for accuracy.

• Consider a safety documentation retention policy. Depending on your company’s needs, it may be unnecessary to retain health and safety audits or other safety documentation indefinitely. Make certain any document retention policy complies with applicable law.

• Insist that others preparing audits or other safety documentation for your company recognize the importance of careful drafting. Insurance companies, outside consultants, or others providing safety or loss control services often commit the errors discussed above. Discuss your concerns about proper documentation in advance.

• Seek legal advice immediately after a fatal or catastrophic accident, and in other appropriate circumstances. Because of potential liability, legal counsel should be consulted in the preparation of accident reports, safety audits, and other documentation. It may be possible to have the company’s investigation conducted under the “attorney work product” privilege or the “attorney-client communication” privilege, thereby providing protection against disclosure to OSHA or third parties.

So for those trying to figure out where OSHA is headed, the annual operating plan issued by the solicitor’s office can provide important clues.

Jonathan Snare and Howard Radzely of the Morgan Lewis law firm have done an excellent job of analyzing that document in a recent article.

Among the things to watch for from OSHA and the solicitor’s office:

• Action from a new “Penalty Reduction Task Force,” set up to reduce the rate of cases in which administrative law judges and the OSHA Review Commission substantially reduce OSHA penalties.

• More publicity about litigation against alleged violators. This matches up with OSHA’s plan to make increased use of public “shaming” of companies that are issued citations.

• Greater emphasis on targeting allegedly unlawful practices across industries and enterprises, rather than company-by-company enforcement. What this means, Snare and Razely say, is: “employers should be alert to industry enforcement trends, and immediately adapt their policies and procedures to match current enforcement patterns. Employers no longer have the luxury of waiting for particular industry enforcement trends to ‘hit’ (or not) at their workplace, nor can they assume that enforcement will be limited to one facility.”

• Action from an “Ergonomics Response Team” to identify cases that have set precedents contrary to the agency’s agenda and then find cases that can be used to reverse those precedents.

• Development of a strategy to litigate against companies that evade penalties and compliance by going in and out of business.

The office is also preparing for expected legal challenges to the cranes standard and to the proposal to include a separate column to record musculoskeletal disorders on the OSHA 300 accident and illness log.

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1. Larger monetary penalties for violations: These are included in a measure called the Protecting America’s Workers Act, which is expected to pass Congress.
2. More aggressive enforcement: The new Secretary of Labor, Hilda Solis, has pledged to “put enforcement back into the Department of Labor” – including more OSHA inspections. Additionally, OSHA’s aggressive National Emphasis Programs are ramping up in various industries, including refineries, chemical companies, general manufacturing, construction and any industry involving combustible dust. Employers can expect a shift away from the cooperative policy of the recent past to a more aggressive, citation/violation-based approach.
3. More inspectors: OSHA will probably increase its enforcement staff to support its emphasis on high-risk industries, such as construction and heavy manufacturing.
4. More attention to recordkeeping: OSHA will increase its focus on this regulation because it believes that many employers have been inaccurately reporting injuries and illnesses for some time.
5. More liability for actions of subcontractors: New this year is enhanced OSHA liability for employers on multi-employer worksites. The 8th U.S. Circuit Court of Appeals ruled that OSHA can increase its citation/violation authority over owners and controlling employers for the safety actions of subcontractors. The case was Solis v. Summit Contractors.

So what can companies do to get ready for this tougher enforcement environment?

The best step is to ensure that your safety and health program is effective and enforced at all levels of the organization.

You can also have a mock OSHA inspection conducted in your workplace. This will review hazards assessments, training and required documentation, safe job procedures, operator certifications, recordkeeping and required safety and health program implementation (lockout, confined space, fall protection, etc.). Utilizing third-party professionals can ensure unbiased feedback about your programs.