The U.S. Chemical Safety Board (CSB) announced this week that it has developed a new policy on employee participation in investigations that the Board hopes will enhance the vital role played by plant workers in determining root causes of incidents and promoting facility safety. The policy, which was approved by a unanimous 3-0 vote of the Board on February 27, follows a roundtable involving accident victims, family members, and worker representatives the CSB convened in 2011.
 
The new policy implements a key provision of the CSB enabling statute at 42 U.S.C. § 7412(r)(6)(L), which provides that employees and their representatives have similar rights in CSB accident investigations as they do during OSHA inspections under the Occupational Safety and Health Act of 1970.
 
CSB Chairperson Dr. Rafael Moure-Eraso said, “The CSB has already been following a number of the elements of the policy in past and ongoing investigations, but the new policy will assure uniformity and increased employee participation at sites across the country.”
 
The ten key elements of the new policy include:
 
(1) If the CSB initiates an investigation at a union-represented site, the CSB will promptly identify and notify facility unions of its plans to investigate. At non-union sites, the CSB will seek to identify other employee representatives, such as employee members of any established Health and Safety Committee, or other employee representatives, if possible.

(2) The CSB will seek participation by contract employees and their representatives, similar to facility employees.

(3) The CSB will establish direct, face-to-face communications with employee representatives from the outset of its investigations.

(4) The CSB will take measures to avoid interference by any party with the proper exercise of employee participation.

(5) CSB investigators will allow and encourage employee representatives to accompany the CSB team during site inspections and tours. Such participation is often critical for understanding complex processes and learning of important safety concerns and hazards.

(6) Where necessary to obtain information, CSB investigators will conduct separate meetings with employee representatives.

(7) During CSB interviews, any non-supervisory employee may be accompanied by another non-supervisory employee, a personal attorney, or a family member as described in 40 CFR 1610.

(8) The CSB will provide employee representatives with the opportunity to review and comment upon evidence and equipment testing protocols and to observe testing, similar to the opportunities for companies and other parties. Employee representatives will also have access to any test results, to an extent equivalent to other parties.

(9) The CSB will provide employee representatives with the opportunity to review and comment on the factual accuracy of CSB reports, recommendations, and interim statements of findings prior to public release, to a degree equivalent to any opportunities provided to company representatives.

(10) The CSB will monitor the implementation of the policy to ensure that participation by facility employees and representatives in CSB investigations does not result in prohibited whistleblower retaliation under 42 USC § 7622. Documented instances of retaliation will be referred to appropriate federal enforcement agencies.