OSHA has just announced what it calls "significant changes" to workplace fatality investigations. The directive states that "the Agency places a very high priority on fatality catastrophe investigations, a high degree of sensitivity and investigative accuracy." Catastrophe is a work-related event that sends at least three employees to the hospital. Currently, the OSHA Act provides potential criminal penalties for an employer who is convicted of having willfully violated an OSHA standard, rule or order when the violation results in the death of an employee.
The Agency referred only 18 cases of fatality violations in 2003 and 2004 to the U.S. Department of Justice for criminal prosecution even though hundreds of fatalities were reviewed for potential referral. Even as self-inspection establishment programs grow in industry with OSHA approval, nevertheless, OSHA is stepping up its activities for comprehensive fatality and catastrophe investigations through enforcement inspections.
The new OSHA Instruction applies OSHA-wide and is intended to be a heightened OSHA response to significant events of potentially catastrophic consequences. State plans OSHA programs are not required to follow the new fatality investigation instruction, although they are urged to do so.
Perhaps OSHA's attempt to broaden its investigation authority or intensity of fatality inspections is due to the number of previous referrals through the Justice Department which the latter agency rejected for criminal prosecution. Of those 18 referrals by OSHA in 2003-2004, the Department of Justice has obtained indictments in one of the 18 cases and decided not to prosecute eight others. Of the remaining nine cases, no decision has yet been made according to information reported by OSHA. The Department of Justice typically has declined to prosecute half or more of the cases referred to it by OSHA.
What is so new then in the OSHA Instruction? OSHA is training its enforcement personnel to better investigate fatality/catastrophe investigations to improve the way it handles cases in which the employer may be criminally responsible. What is startlingly new is that OSHA will cooperate with EPA to refer and produce potential joint criminal prosecutions against employers. This new OSHA directive states that employers may face prosecution for a number of sections of the U.S. Code including, but not limited to:
- Crimes and Criminal Procedures, for actions such as conspiracy, making false statements, fraud, obstruction of justice, and destruction, alteration or falsification of records during a federal investigation;
- The Clean Water Act;
- The Clean Air Act;
- The Resource Conservation and Recovery Act (RCRA);
- The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
Under the OSHA Act alone, when a worker is killed, employers can only be charged with a misdemeanor, but violating any of these environmental or fraud laws can lead to felony convictions. The directive attempts to expand the use of the EPA referrals by OSHA when they find something during the workplace investigation that should be checked out by the EPA such as hazardous waste handling improprieties, which may be related to the death.
OSHA intends to "encourage the use of videotaping as a method of documenting and gathering evidence. Inspections following fatalities or catastrophes should include videotaping when appropriate." Stronger interview procedures are being taught to enforcement officers and utilized during fatality investigations including the interviewing of all persons connected with the incident such as first responders, police officers, medical responders, and management. Inspectors are being told that they should conduct employee interviews privately, outside the presence of the employer. Employees are not required to inform their employer that they provided a statement to OSHA, the new directive indicates.
Interviews are supposed to be reduced to writing and have each witness sign the writing. They should transcribe video and audiotaped interviews and have the witness sign the transcription. When a fatality or catastrophe of three hospitalized employees occurs, employers can expect OSHA to videotape the interviews almost as if it were a deposition-only the employer's legal representative(s) will not be allowed to be present during the interviews of hourly employees. Of course, management representatives and lawyers can be present during the interviews of management personnel. A number of the older cases in OSHA search warrant law indicate that even hourly employees have a right to have a management representative present, such as the safety director, if they make their own decision and request such a representative be present.
Although the directive does not specifically say that OSHA will refer environmental violations to the EPA for their separate subsequent inspection, that referral is plainly implicated and the combination of penalties OSHA seeks to trigger under this new directive by citing the five criminal type environmental statutes. It appears that such referrals could be made from the Area Director to the Regional Office and Regional Solicitor's Office for OSHA and then in turn to the EPA. In addition, the new directive indicates that at the direction of the Regional OSHA Administrator and the OSHA Area Director, a regional and depending upon resources, a "Regional team or trained criminal investigator may assist in or perform portions of an investigation, as appropriate." OSHA may well be training or utilizing criminal case investigators to accompany the standard OSHA civil penalty compliance officer. Instructions and letter formats have been issued with this new directive to be sent to families of deceased employees as well as to news media organizations.