Safety and health professionals awaken. How can they sue thee … let me count the ways!
Civil and criminal liability under the Federal Mine Health and Safety Act (Mine Act), as amended (30 USC 801 et seq.).
Criminal liability under the Occupational Safety and Health Act of 1970 (OSH Act), as amended (29 USC 651 et seq.).
Criminal charges at the state level for reckless endangerment or negligent homicide.
Tort liability for negligent safety supervision at multi-employer worksites.
Malpractice as consultants and/or expert witnesses.
… and more.
Documentation created by safety and health professionals can be used as both a shield against litigation and, if improperly prepared, as a sword used by government agencies and plaintiff attorneys against the professionals, their employers and clients. On one hand, it is critical to document work and training, to demonstrate that responsibilities have been fulfilled and to support claims of regulatory compliance. Outside professionals often create reports as part of audits, accident investigations and root cause analyses. Those professionals who work as expert witnesses will create reports to be used in court proceedings, and will review documents in the creation of those reports and in the preparation of their testimony.
The problem is that unless the document creation is accompanied by some sort of privilege - e.g., attorney/client privilege or documents created under the attorney work product doctrine - they will be discoverable in litigation (both private sector and against federal/state governmental agencies) and can be used by the adverse party to show prior knowledge of hazards and regulatory violations, or negligence in terms of satisfying a duty of care. OSHA has subpoena power that it can utilize (through a subpoena duces tecum) to obtain all non-privileged documents such as in-house and outside safety professionals' workplace examination records, audit reports, checklists, memoranda, calibration records, photographs, videotapes, training records and syllabus, diaries, logs, and e-mails. The agency can, and does, use this power before any citations have been issued and the safety professional's documentation of hazards can be the basis for enforcement actions against employers and clients. Therefore, it is critical when noting hazardous conditions to also document all remedial action that was taken to show that the safety professional acted responsibly to initiate appropriate corrective action. One pitfall to avoid is using the terms "hazard" and "violation" interchangeably in documents: they are not the same thing and using the term "violation" constitutes an admission against interest that can lead to imposition of heavy civil penalties and open the door to possible criminal prosecution, as discussed below.