One of the goals of the Manufacturing Log Blog is to provide analysis of legal issues from many different vantage points. Pam, Nicole, and I focus on different substantive areas for our clients that manufacturer or distribute products, and thus, we can effectively offer a holistic approach to issues that arise. As a result, this is the first of periodic blog posts where each of us will comment on an issue with our individual areas of focus in mind.
This post will focus on suggestions for how a manufacturer or distributor can put together its legal response to a workplace accident involving one of its employees after the appropriate medical attention has been requested. For purposes of this discussion, we have assumed that an employee (as opposed to a temporary worker or visitor) was injured as a result of the accident.
As we move forward, we will start to work in hypothetical scenarios to these discussions. If you have ideas about scenarios that you want us to address based on your experience, please contact us via email. As always, these are only suggestions and obviously, the circumstances of the individual incident may lead to a different course of action.
As with most people, my immediate thought when learning about an accident and employee injury is whether the employee is okay. My next thoughts go to reporting and recordkeeping, and then root cause and training. If the work place accident results in an injury, the injury must be reported to OSHA if someone has died or if more than three employees were hospitalized. Even if reporting is not required, if the employee sustained an injury and was provided with more than first aid, that injury must be recorded on the company’s Injury and Illness Log, aka, the OSHA 300 log.
Once reporting and recordkeeping is taken care of, the next question is what happened, and why did it happen? What was the “cause” of the accident? Was the hazard one that is covered by an OSHA written program, does that program require training, and were the employees that were involved trained? Sometimes accidents are just that – accidents. Sometimes they occur because people ignored the training they were given.
When an unfortunate workplace accident occurs, it is generally a good idea for management to be prepared with a post-injury response procedure familiar to all employees at all levels. An employer’s actions in the minutes following a workplace injury could have a major impact on the overall outcome of the incident, and there is no room for confusion about how to properly handle and document the accident.
First and foremost, it is important to maintain a sensitive approach. A member of staff, preferably a front-line supervisor with whom the injured employee has a good relationship, should be encouraged to stay involved with any communications during the first few weeks after the accident.
As Pam mentioned, accident reporting is a critical step for compliance with state and federal laws. Therefore, such reporting should not be taken lightly. Each report may be used as evidence. Depending upon the circumstances, it may make sense for any supervisory employee responsible for reporting (i.e. First Reports of Injury for Workers Compensation, OSHA reporting, internal accident investigations) to receive training and re-training, as laws change from time to time, in how to investigate and document workplace accidents.
A timely response from human resources is also important. Under most circumstances, there should be no cause for delay with required notices (i.e. FMLA designation, short term disability forms, etc.). Questions regarding benefits, paid time off and salary should be answered as quickly as possible. Any lag in response may cause concern by the injured employee. HR should be prepared to assess how, if at all, the injured employee may return to work on a light-duty basis and/or with reasonable accommodations.
A serious workplace accident may prompt a number of issues that may not be addressed in a post-injury response procedure, including internal and external communications. Consistency is key. It might make sense to designate specific management staff to address such basic questions as to who is responsible for communications with the family of the victim, the media, and any internal communications.
Because the circumstances of the accident are often developed over time, manufacturers and distributors should treat a workplace accident as an event that could lead to litigation even if that does not ultimately occur. As with any litigation, there are some possible steps that can be taken depending upon the circumstances:
- Involve your litigation counsel early in the process and consider whether to put your insurance carrier on notice;
- Determine whether the investigation of the accident should be done internally or conducted by your outside counsel (so as to possibly prevent the report from being released in the subsequent litigation);
- Discuss with your counsel whether to send a “litigation hold” letter to all employees instructing them to preserve all documents (including emails) regarding the accident;
- Discuss with your counsel whether written communications regarding the accident may be discoverable (i.e., released) during a future lawsuit depending upon the content of the communication;
- Coordinate your response to any government investigation with your litigation counsel so as to avoid inconsistency.