OSHA’s Directorate of Enforcement Programs has drafted a proposed directive to field personnel that provides guidance for communication with the next of kin following a workplace fatality.

This would be a new directive with previously unspecified instructions.

According to the draft: “The Agency places a very high priority on fatality investigations, which demand a high degree of sensitivity and investigative accuracy. Only trained and experienced OSHA representatives should be assigned to interact with families of the deceased.”

Excerpts from the draft instructions, obtained by ISHN:

“This Instruction outlines OSHA’s commitment to communicating and involving a victim’s family, or a designated representative, throughout the fatality investigation process. This initiative will keep the family informed of the status of the investigation, preliminary findings, notice of any proposed citations, settlement and closure of the case.

“Interactions with the next of kin can typically be accomplished by using a “three phase approach” which includes: an initial communication, follow-up communications throughout the investigation, and post-inspection communications. This will ensure OSHA receives all necessary information about the victim, job history, co-workers, and keeps the next of kin informed from the beginning of the investigation, through progression of the investigation until the case is closed.

“OSHA representatives shall be advised/trained on methods which provide the next of kin with an understanding of the investigation and settlement processes.

Great sensitivity, tact and professionalism are required during all communications with the next of kin

“OSHA will contact the next of kin early in the investigation. This gives the OSHA representative the opportunity to establish a trusting and working relationship with the next of kin and communicate that the incident is being investigated by OSHA. When communicating with the next of kin, care must be taken to ensure that appropriate tact is exercised. During the initial communication with the next of kin, OSHA should explain the confidentiality of all conversations.

“Follow-up communications with the next of kin are vital to the exchange of information. These communications allow OSHA to provide updates on the status of the investigation and provide the next of kin with an opportunity to ask questions. This exchange of information should occur periodically until the investigation is complete and findings are communicated to the next of kin. OSHA should use caution when providing preliminary findings and information to the next of kin. OSHA should ensure information given to the next of kin has been established as fact.

Post-Inspection Communication(s)

No Proposed Citations:

1. If citations are not issued, the OSHA representative should explain the findings of the investigation during the post-inspection communication. Additionally, the OSHA representative should be prepared to discuss and explain the following:
   • a. OSHA does not issue citations solely because there was a workplace fatality.
   • b. OSHA inspected the worksite(s) to determine whether a violation of OSHA safety and health standards related to the accident occurred and what effect the alleged violation had on the accident.
   • c. OSHA should make the next of kin aware of the Freedom of Information Act (FOIA), as it pertains to OSHA’s investigation.
   • d. Within five days of closing the case, the case closure letter should be sent to the next of kin.

Proposed Citations:

1. After confirmation that the employer has received the citations, OSHA should begin post-inspection communications with the next of kin to explain the alleged violation(s), proposed penalties, reduction factors, violation classification, abatement requirements, settlement procedures, and Freedom of Information Act (FOIA) requests, as it pertains to OSHA’s investigations. OSHA should explain that communications between OSHA and the next of kin will continue until the case becomes a final order. Periodic communications with the next of kin should reflect a time agreed to between the OSHA representative and the next of kin.
   • a. Upon confirmation the employer received citations, OSHA should ensure that the investigation findings letter with a copy of the citation(s) were mailed, where applicable.
   • b. OSHA will explain that the releasable portions of the case file will not be made available to the next of kin until after the employer contest period has passed and no contest has been filed. If a contest is filed, the case file will not be made available until after litigation is complete. If a criminal referral is under consideration or has been made, the case file cannot be released until those actions are complete.
   • c. All communications with the next of kin should be noted in the case file.
   
   
2. Upon receipt of a final order via a signed informal settlement agreement or a formal settlement agreement, OSHA should inform the next of kin of the settlement decision and explain the outcome. OSHA should be prepared to discuss issues associated with the settlement agreement or Review Commission decision, i.e., amended abatement dates, reclassification of violations, and the modification or withdrawal of a penalty, a citation, or a citation item. Finally, OSHA should again make the next of kin aware of the Freedom of Information Act (FOIA), as it pertains to OSHA’s investigation.
   • a. Within five days of closing the case, the case closure letter should be sent to the next of kin, Appendix D.
   • b. All communications with the next of kin should be noted in the case file.