Dealing with the ultimate failure
After a worker’s death, don’t haunt yourself with “what if’s”
Although avoiding death is the focus of prevention at every workplace, we rarely directly discuss it. It holds such a negative context. “Death has replaced sex as the major taboo topic in western culture,” according to the book, “Grave Words: Notifying Survivors About Sudden, Unexpected Death” (K.V. Iserson, Galen Press, 1999).
Talk about death we must. “It can happen here.” Preparing for the possibility of a death on the job must go beyond your regulatory obligation to report a workplace fatality to OSHA. Special challenges confront employers and OHS pros.
Report to OSHA
OSHA Standard, 29 CFR Subpart 1904.39, requires that within eight (8) hours after the work-related death of any employee, employers must orally report the fatality by telephone or in person to the OSHA Area Office or to the State Plan Office that is nearest to the site of the incident. Employers may also use the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742).
The report must include: 1) name of establishment; 2) location of the incident; 3) time of incident; 4) name of deceased employee; 5) contact person name and phone number; and, 6) brief description of the incident.
Saying less is better than more. OSHA will investigate and come to its own conclusions as to the cause of a death. Examples of brief descriptions can be found at OSHA’s weekly report of workplace fatalities at http://www.osha.gov/dep/fatcat/dep_fatcat.html.
You don’t have to report to OSHA an employee death that occurred in a motor vehicle accident on a public highway, but you must report a death from vehicle accident that occurred in a highway construction zone. An employee death that occurs from a public transportation accident by air, train, subway or bus is also not required to be reported to OSHA. Reference 1904.39(b)(3) and (b)(4), respectively, for more information. A death from a heart attack at work must be reported to OSHA. OSHA will determine if the heart attack was work-related. See 1904.39(b)(5).
Timing of fatality report to OSHA
OSHA investigates all workplace fatalities and will make its onsite investigation as soon as it can, which may be within as little as a couple of hours after receiving the fatality report. Some employers may welcome OSHA’s prompt involvement and others may not. If your employer sees OSHA’s prompt involvement as an untimely burden and distraction, establish a procedure to report a fatality at the end of eight hours. This gives your employer a little extra time to prepare to assist OSHA.
Although a fatality investigation should begin immediately by onsite personnel, the investigation should also be conducted promptly by a third party. In larger organizations this may mean an OHS pro, or team, from the division or corporate office conducts the investigation. Smaller organizations should make arrangements beforehand with a consultant to conduct a fatality investigation.
To avoid delays, a procedure or clear understanding should be prepared so that third parties are not held to normal budget constraints to promptly complete a fatality investigation. For example, if the purchase of a First Class ticket is needed by a third party to catch the next available flight to get to the location of a workplace fatality, so be it.
The third party should be especially trained and prepared with investigation tools, minimally a smart phone with camera and recorder, to conduct fatality investigations. The third party should preferably conduct the investigation at the direction of an attorney in anticipation of litigation with reports to the attorney under privileged and confidential correspondence.
Anticipation of litigation
Workers’ compensation insurance is referred to as an “exclusive remedy” and was established to help avoid litigation to compensate workers for work-related injury or illness. Workers’ compensation, however, may be side-stepped if an intentional tort can be demonstrated. For a variety of reasons, a worker’s death affords plaintiff attorneys an opportunity to argue that an intentional tort occurred. Because of the elevated costs that occur with tort claims over workers’ compensation claims, anticipating tort litigation following a worker’s death is prudent.
Crisis risk communication
Your choice of words following the death of a worker is critical considering the highly-charged emotions present. You should expect grief among the deceased worker’s family, friends, acquaintances and co-workers. The Kübler-Ross model identifies five stages of grief: 1) denial; 2) anger; 3) bargaining; 4) depression; and, 5) acceptance. A poor choice of words may inflame anger and encourage litigation.
Stages of grief are also found among emotions of people during times of crisis. The CDC’s Crisis and Emergency Risk Communication Manual, 2002, (see http://www.bt.cdc.gov/cerc/pdf/CERC-SEPT02.pdf) is an excellent learning tool for proper communication during times of high emotions. For example, Module 2 in the manual, “How to Communicate Effectively in a Crisis,” written by Peter Sandman, Ph.D., says it is OK to say, “We are sorry …” or “We feel terrible …” when acknowledging misdeeds or failures. However, don’t use the word “regret,” which sounds like the employer is preparing for a lawsuit. Understanding and rehearsing the content within the CDC manual is essential for anyone who must make formal communications following the death of a worker.
It is important to prepare for all concerns. For example, procedures are needed to know how to handle the deceased worker’s personal items left in the workplace, how to address Post Traumatic Stress Disorder among co-workers who witnessed the fatality, how to properly clean up the accident scene, and rumor control must be done with tact and respect.
The emotional burden of a worker’s death may fall heavily upon you, the OSH pro, although the employer is ultimately responsible for worker safety. It is natural to consider “what if” scenarios. Regardless of scenarios, the worker died and nothing will change that. Channel your emotions and actions to ensure that another death at work never occurs.
1 This number only reflects sudden and unexpected death – it is estimated that more than ten times as many workers die annually from occupational diseases.