As an EHS professional, did you know that you can be held legally responsible for nearly everything that goes wrong unless you follow appropriate practices?
During her presentation, Legal and Ethical Considerations for OSHA Professionals, at Safety 2019, the annual conference of the American Society of Safety Professionals (ASSP), Adele L. Abrams, Esq., P.C., noted that during the course of their work responsibilities, EHS professionals can be faced with situations that not only come into conflict with codes of ethical conduct they’ve agreed to observe as holders of certifications such as CMSP, CIH and CSP, but that also could land them in prison.
Two areas of particular interest and pitfalls are safety audits and the maintenance and destruction of documents.
Often, said Abrams, the safety professional becomes the fall guy or gal when something goes wrong or OSHA comes calling and the reason are the safety audits most EHS professionals do as part of their jobs. She shared the story of one safety professional who noted the poor condition of a brick silo on his employer’s property while conducting a safety audit. He wrote it up and suggested repairing or replacing the silo and sent it up the chain of command.
“The silo collapsed. Fortunately, no one was injured but if it had happened after the start of shift, six workers would have been in the immediate area,” said Abrams.
OSHA took enforcement action and who was in the hot seat? “The safety professional,” she recalled, because “documented knowledge of violative conditions can lead to personal criminal liability under OSH Act and environmental statutes.”
“The person who took the fall was the person who reported it initially,” said Abrams. “His fingers were all over the paperwork and he never closed the loop and there were immediate danger ramifications” (in what he had reported).
“Safety audits are the biggest, single exposure because your fingers are all over that paperwork. It’s a ticking time bomb,” she added.
According to OSHA, failure to correct hazards documented in self-audits may result in the issuance of “willful” citations when the employer:
- Blatantly ignores identified hazards.
- Refuses to correct hazards likely to result in serious injury or death.
- Knowledge of in-house CMSP/CSP/CIH can be imputed to employer.
- Documents produced by insurance company such as audits can be used against employer.
- OSHA reserves the right to use self-audits as evidence to prosecute employer or individuals civilly or criminally.
Document retention and destruction is another area where EHS professionals can find themselves in hot water, said Abrams.
Abrams recalled the situation one EHS professional found himself in with his employer. He conducted silica sampling and found levels that were “through the roof,” according to Abrams. His employer told him to “shred” the results of the sampling and keep from workers the information that they were being exposed to a carcinogen. He asked Abrams what he should do. “How do you feel about wearing an orange jumpsuit?” she asked him.
“Destroying records moves that outside of an OSHA violation for exposing employees to silica and into federal crimes like conspiracy and obstruction of justice,” she added.
EHS professionals and their employers should have policies related to document retention and destruction, and EHS professionals should abide by these policies and avoid the “packrat” mentality. EHS professionals also should inform these policies, says Abrams, ie., know the mandatory retention periods for OSHA-specified documents such as medical surveillance and training.
Even if statutory limits are exceeded, the policy should clarify that documents must be disposed of after their useful like. This will ensure compliance with legal requirements, prevent the accumulation of records that could be used against the company’s interest in litigation and/or give rise to liability against the EHS professional.
“Following the document retention policy also provides defense to ‘spoilation’ claims that documents were destroyed to thwart prosecution of citations or tort claims,” said Abrams.
Best practices for maintaining documentation include:
- Records and reports maintained for compliance purposes (which must be provided to inspector upon request) should be segregated from other non-mandatory documents.
- Non-required records should never be released without corporate or legal approval.
- Always require OSHA/MSHA to request records in writing (but be wary of MSHA claims of “impeding” investigation under Sec. 103A).
- Opinions should not be included in non-privileged documents and avoid naming individuals if possible if documents could support a finding of regulatory violation or legal liability (e.g., near miss reports).
- Documents containing opinions should bear the caption “Privileged and Confidential Attorney Work Product, Prepared in Anticipation of Litigation.”
- Identified hazards should not be referred to as violations.