The Occupational Safety and Health Administration ("OSHA") has issued its first official directive regarding OSHA's communications with a deceased worker's family after the occurrence of a workplace fatality. OSHA Directive No. CP: 02-00-153, effective April 17, 2012. The Directive provides guidance, not regulations, on how OSHA will communicate with the family from the point that OSHA begins its investigation of the accident through potential settlement of any citation that may be issued relating to the fatality. The Directive imposes obligations on OSHA personnel, not on an employer, but employers would be well-advised to be aware that OSHA will be initiating these ongoing communications.
In the Directive, OSHA notes that it "places a high priority on fatality inspections, which demand a high degree of sensitivity and investigative accuracy." This new Directive will be part of the training for OSHA officers who are allowed to conduct fatality inspections.
The Directive establishes a three-phased approach to communications. The first phase, "Initial Communications," is to occur typically within five working days of the fatality, and after OSHA has determined that the family has been informed of its loss by other sources. OSHA will communicate its role and process, the potential timing, and next of kin's ability to discuss the matter with OSHA. OSHA also sends condolence letters from the Area Director and from the Assistant Secretary of Labor, which contains similar information through enclosures to those letters.
The second phase is called "Follow-Up Communications," which are to occur at least once every 30 days or as frequently as OSHA arranges with the next of kin. These communications will describe OSHA's progress in the investigation and whether any citations were issued.
The third phase, "Post-Inspection Communications," occurs after OSHA's inspection has concluded. If OSHA plans to issue a press release about the inspection's results, the family should be notified in advance of the release. OSHA will explain the conclusions it reached and inform the family of its ability to obtain information in the OSHA case file through a FOIA request. OSHA will send the family a copy of all citations and any settlement agreement. Within five days of a final order or settlement agreement closing the case, OSHA will send a final "closure letter" to the family.
Notably, OSHA does not invite the family to participate in settlement discussions or other meetings with the employer that OSHA may hold. In past legislative proposals for amendment to the Occupational Safety and Health Act, greater employee involvement in the OSHA inspection and citation process has been proposed. Those legislative proposals have not been adopted and the Act has not significantly changed since it was enacted in 1970.