While American construction worksites are safer than ever, never does a week go by without a news report concerning a fatality arising out of a fall, crane and structure collapse, “caught-in-between” or an “electrocution and shorting” incident.
Recent government data shows that there were 4,628 workplace fatalities in 2012, the second lowest in recorded history. Fatalities in the private construction sector increased 5 percent from 738 in 2011 to 775 in 2012. However, fatal construction injuries are down 35 percent since 2006. Clearly, one of the most troubling challenges facing any employer is how to deal with a workplace fatality or catastrophic accident. OSHA defines a catastrophic accident as the inpatient hospitalization of three or more employees from a single event.
Anytime a fatality or catastrophic accident arises in the workplace, the employer will have to deal with at least three distinct audiences.
- Most catastrophic incidents, including fatalities, will initiate government investigation as to the cause.
- In today’s environment of 24-hour news coverage, the employer will be inundated by the news media covering the “breaking story.”
- Whenever there is a fatality or catastrophic accident in the workplace, 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 can an employer prepare to deal with these competing needs from different audiences and effectively deal with the workplace fatality or catastrophic accident? The answer is preparation. Clearly, every employer, especially construction employers, must not only prepare, but anticipate each potential workplace emergency before it occurs. Employers in the construction industry must acknowledge that they are in a dangerous industry where worksite safety hazards capable of causing death or serious injury can develop quickly and without warning. However, employers should realize that preparation does not always mean prevention, and every employer should be prepared to implement its emergency plan at a moment’s notice.
Emergency Response Plan
Preparing to deal with any potential workplace injury requires an employer to develop an emergency response plan. Fatalities, injuries to employees, damage to property and other traumatic events (fires, explosions, chemicals, spills/releases, other emergencies, workplace violence, terrorism events, etc.) generally require an immediate and decisive response. The purpose of the plan is to minimize the employees’ potential for injury during an emergency while, at the same time, prepare and train to effectively deal with the emergency.
OSHA has a Construction Emergency Action Plan Standard (29 C.F.R. 1926.35) that sets forth the policies and procedures to be followed in dealing with emergencies. Under this standard, employers are required to do an assessment of range or types of emergencies at their project site, looking at the worst-case scenario. Next, 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 project site with telephone numbers for agencies and emergency personnel who should be contacted; and
- procedures for employees who remain for shutdown of critical operations.
Any emergency action plan should include the assignment of rescue and medical duties, either inside or outside the project site, the designation of assembly areas and procedures to account for employees, sites of alternative communication centers, and operation procedures and methods (alarm systems) to alert employees of an evacuation, which also includes the evacuation of disabled employees.
An emergency action plan also should discuss the roles of the emergency response coordinator; specifically, the coordinator should have the ability to assess the situation and determine the extent and scope of the emergency that exists. In addition, the coordinator will supervise all efforts in the emergency response, including coordinating with outside emergency services, such as local fire and police departments, and direct the shutdown of jobsite operations. With respect to evacuation routes and exits, OSHA requires that emergency action plans set forth the types of evacuation to be used in an emergency situation.
Furthermore, the emergency action plan should include training to address every employee’s specific roles and responsibilities during an emergency evacuation or catastrophic event, including identifying the threats, hazards and protective actions that need to be taken, the notification warning and communication procedures that will be used, and the means of locating family members during any type of emergency. Training also should address the emergency response procedures and the location and use of common emergency equipment and the emergency shutdown procedures for operations on the jobsite.
Responding to a Fatality or Catastrophic Accident
Deal first with the emergency. Address the medical response, which may include designated first responders at the project site, and notify EMS units and/or the local emergency rescue squad. If necessary, contact law enforcement and fire protection personnel.
The next step is to notify the appropriate corporate officers of the emergency event. It is important to notify the appropriate corporate legal department, which is responsible for managing the risk and avoiding potential legal liability. Also, the corporate or local human resources 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 project site will be important in assisting the follow-up and resumptions of construction operations. A determination must be made on whether outside legal counsel is needed, based on the scope of the workplace emergency.
In addition to the affected family members, employers will have to respond to the needs of the remaining workforce. Once again, providing accurate information to employees regarding operations schedules and medical updates on injured employees is critical in handling any workplace accident. It’s also important to ascertain witnesses to the accident or those who are involved or who were not injured in determining whether they need counseling services. It is important to realize that business continuation following a fatality or catastrophic accident will depend on the cooperation of the employees at the project site. Keeping them informed is critically important.
Dealing with the News Media
As a general rule, the employer should appoint one spokesperson for the company to have responsibility for dealing with all media communications. In addition, controlling the distribution of information to the media will be important in stopping the development of rumors or speculation on how the accident or incident occurred. It is important that the company control access to the project site by the media.
Furthermore, providing only known facts to the media and not speculation is critical. An employer says no more than what is necessary. Of course, when dealing with the media after any accident or fatality event, the response “no comment” should be avoided at all costs and a positive message about the company’s role as a good corporate citizen in working with all governmental agencies investigating the accident should be disseminated whenever possible. 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 it is fully investigating the accident or incident, and that it is doing all it can to ensure that the accident does not re-occur.
While the accident is still fresh in the witnesses’ minds, it is important that the company begin its accident investigation efforts. 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 only and not include speculation and conjured opinion in determining the cause of the accident. As part of the accident investigation process, 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. Further, the investigation will identify not only the witnesses to the event, but all evidence resulting from the fatality or catastrophic accident.
The employer should ensure there is no obstruction of evidence, as well as no destruction or 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 and/or by plaintiff’s attorneys. Such documents should be appropriately marked as being a “draft” prepared at the direction of an attorney. In addition, 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 completed in final form.
If there is a fatality or a hospitalization of three or more employees as a result of a workplace injury/accident, the employer is required to report this event within eight hours to OSHA under its recordkeeping requirements. OSHA investigates all fatalities and catastrophic accidents events. For other 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 on an employee’s complaints, as well as referrals from other government agencies, hospitals/EMTs or from the media.
In most cases involving fatalities and/or catastrophic accidents, there are surviving family members of the employees, and timely communication with these grieving survivors is imperative. Informing family members that their loved one has been killed or injured is exceptionally difficult. Notification to a family member should always be done in person and never by telephone. Likewise, notification should be accomplished by a team of company representatives, rather than a single individual. It is critical that the employer make every effort to keep family members informed of all developments, whether good or bad. In dealing with any emergency, the employer also should ensure that the insurance issues (such as workers’ compensation) are handled in a timely fashion without a lot of red tape.
The notification team should consist of a member of the deceased employee’s operating management team, a company’s human resources representative, and an Employee Assistance Program =counselor. Obviously, this notification should take place as soon as possible following the traumatic event and prior to any meeting between workers’ compensation representatives and family members. The primary purpose of the notification meeting is to provide information to the decedent’s family. Specifically, the notification meeting is to inform the family 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 the name of a contact person to be the family liaison with the company.
In dealing with incidents involving fatality and catastrophic accidents, it is likely that the employer will have to handle requests from third parties, such as equipment manufacturers, contractors, property owners, vendors and attorneys representing the injured or deceased employees. Once again, it will be critical to effectively deal with these third parties because they represent potential financial and legal liability to the company.
Construction 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 that assemble during a catastrophic accident or fatality without such proper planning. In fact, effective planning may help reduce the pain and suffering of the surviving family and co-workers, while at the same time allow the employer to resume normal construction operations quicker and reduce the financial and potential legal burdens placed on the company.