Investigations of work-related fatalities by occupational health and safety agencies are not typically conducted with the depth, diligence, transparency, and family participation that the situations warrant. These problems prevent agencies from identifying the multiple factors that led to a fatality, holding the employer properly accountable, and gathering information that can help prevent future incidents.
First, OHS fatality investigations often do not begin until many hours or even days after the death occurs. Under Fed-OSHA regulations—as well as those in virtually every state that oversees its own OHS program (state-plan state)—employers have up to eight hours to notify the agency of a work-related fatality or an incident causing hospitalization of three or more employees. In other words, employers have ample time to disturb the scene or influence witnesses, whether intentionally or inadvertently. Witnesses may also forget crucial details if their statements are not taken immediately after an incident.
Second, OHS agency inspectors typically limit their investigation to assessing the working conditions that directly led to a fatality, with an emphasis on citable violations of OHS standards. Yet worker fatalities are often the result of practices, policies, or management system failures that increase OHS risks, a link that can only be identified through a comprehensive examination of the incident’s root causes.
Third, victims’ families and other workers’ advocates often feel shut out by OHS agencies opaque investigations and settlement processes. In 2012, Fed-OSHA issued a directive intended to improve communications with victims’ families, but family members still report that they cannot obtain access to any information in Fed-OSHA’s case file until all litigation between the employer and the agency is complete, often months or years after the fatality occurred. And families often feel they are not being heard, especially when they learn after the fact that the agency and its attorneys cut a deal with the employer in settlement negotiations, with drastically reduced penalties and downgraded violations.
What’s the Solution?
Ensure that Evidence Is Preserved: Advocates in state-plan states should consider campaigning for a law that requires quicker reporting of workplace deaths and serious injuries and that makes it a crime for an employer to alter or destroy evidence. Unions could also add such a requirement to collective bargaining agreements.
Give Victims and Their Families a Greater Voice: Advocates in state-plan states should urge their OHS agency to adopt Fed-OSHA’s 2012 directive on improving communication with families. Further, state law should require OHS agencies to include victims, their families, and their representatives in all agency proceedings and in settlement negotiations.
Require a Public Inquest into the Circumstances of Workplace Deaths: In all states, advocates could urge lawmakers to require an inquest for every on-the-job fatality. An inquest would produce a definitive account of the facts surrounding a worker’s death, ensuring a detailed investigation of the management system failures and other root causes often overlooking during OHS agency investigations.
Quick Reporting and Evidence Preservation. For a prominent example of a quick reporting requirement in federal law, advocates should look to the Mine Safety and Health Act and the Mine Safety and Health Administration (MSHA) regulations. MSHA can impose a fine between $5,000 and $65,000 on employers who fail to report within 15 minutes. MSHA also requires employers to preserve evidence that would assist in an investigation.
Communicating with Families about a Fatality. To determine whether your state OSH agency has adopted Fed-OSHA’s 2012 directive on communicating with victim’s families, see OSHA’s list here. Also, for advocates campaigning for a state law that requires more, see the victims’ rights provisions in the Protecting America’s Workers Act (PAWA). The 2006 MINER Act is another resource for advocates that requires the assignment of a family liaison in fatal mine incidents who meets with the victim’s family and explains citations prior to the company receiving them.
Public Inquests for Workplace Fatalities. Inquests are still common in other countries, and in some cases, they are mandatory following a workplace fatality. In England and Wales, a coroner’s inquest must be held within six months of a workplace fatality. In Scotland, a unique form of inquest called a “fatal accident inquiry” is held after every workplace death—before a judge, with no jury. In New Brunswick, an inquest is mandatory whenever someone dies at a “high-risk” workplace. Workers’ advocates throughout Canada have been fighting to require inquests for all workplace deaths.