When The Worst Happens

A building service contractor can manage safety in a variety of ways: pre-employment drug tests, in-depth training, spot checking for safety compliance, and strict adherence to U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) regulations. Yet it’s always possible for a fatality, work-related or not, to occur on the job.

On-the-job deaths due to natural causes, such as diabetic reactions and heart attacks, can be traumatic enough, but workplace-related fatalities require a quick

response and proper planning. It’s a demanding and emotional time, and preparedness will be critical to continued longevity. Definitive steps should be taken to help keep the situation from causing further loss or disruption to the business.

The first step, in the event of a serious illness or injury? Call 911.

“Take quick, appropriate action,” says John Kerlish, CPHR, president of Human Resources Management Associates, Inc., Lancaster Penn. “Contact the local medical authority.”

While waiting for the medics to arrive, attend to those who are hurt, but don’t administer aid you are not qualified to give.

“Basic first aid says to keep the person warm, quiet and comfortable. Be there. Watch them. Beyond that you’re taking accountability for that person’s medical condition and you create liability,” says Kerlish.

When the providers arrive, help them with information if they ask, adds Kerlish.

What next?
Once the medical authorities leave, the next general concern is securing the workplace, says Eric Athey, labor and employment practice group chair and partner with Kegel Kelin Almy & Grimm LLP in Lancaster, Penn., who has represented different clients in a variety of workplace fatality cases. Make sure that, if a hazard created the situation, it does not continue to create danger to others, he adds. All managers also should be alerted to the situation.

Athey suggests that with the help of its attorney and safety consultant, the BSC conduct an investigation of its own. Interviews, photographs or videotape can determine whether equipment was being used appropriately and if proper safety precautions were being taken.

“Where investigators often get involved is where a decedent’s spouse is interested in suing…” says Athey. “Police investigators will have critical photos and reports, and it’s important for a company to get its own investigator there, too. It’s very important to get a company safety consultant out there quickly to figure out what happened, take it down and establish an accurate and objective statement that will be provided in response to inquiries.”

Notifying OSHA
All workplace-related deaths must be reported to OSHA within eight hours. If the death is the result of natural causes, it doesn’t necessarily need to be reported, but if you are unsure, call and let OSHA make the determination. Contact must be made in person by contacting the local OSHA office, or by calling 1-800-321-OSHA, the agency’s national emergency number.

The OSHA representative will ask for the following information: Establishment name, location of the incident, time of the incident, number of fatalities or hospitalized employees, names of any injured employees, your contact person and his or her phone number, and brief description of the incident.

Within 48 hours, OSHA will conduct an inspection.

“It’s best if both OSHA and the employer are straight and up front with each other,” advises William Smith, team leader and OSHA director of enforcement programs in the Department of Labor in Washington DC. “We’re there just to find out what happened and if there were any violations that might or might not have been related to the employee’s death. Was he trained to use equipment he was using? Or using it wrong?”
Any citations resulting from the investigation are usually given within a month, though complications in the case could delay a citation up to six months, Smith says.

“Most inspections turn up at least one OSHA violation,” explains Athey. “It’s kind of par for the course because of the detail. If an inspection arises after a fatality and a citation is issued, [the BSC] will want to look at that very closely with counsel and consider contesting any issues it disagrees with.”

Even though BSCs may rather not dwell on the past and look ahead to a new day, combing over the citation and what triggered it should not be overlooked, Athey stresses.

“At a time like this the tendency is to focus on other issues — it’s a tumultuous time and [BSCs] might be eager to pay the citation and get over it with. Not a good idea,” says Athey. “Many times OSHA citations are thrown out or amended. They say: ‘We think you violated acts, here’s how, this is the penalty, and here’s how it’s classified.’ All those elements can be challenged. You can meet in an informal conference and say: ‘I don’t think we violated this — here’s why,’ making sure they know your side. Sometimes they will drop the citation, sometimes amend it, and sometimes they won’t change.”

If the case goes to court, having a prevention program that shows compliance with OSHA standards will be beneficial, adds Athey.

Notifying the client
In most cases, the customer will need to know about a death at their facility. Remember that any statements, no matter how innocuous they may seem, may be used in court, so it’s best to avoid any extraneous conversation or offer any speculation. The facts, as discovered by legal authorities, OSHA, and the BSC’s investigation, will present themselves soon enough.

Also, review contracts with the building owner for indemnification, insurance requirements and other important language.

Managing press
A death in the workplace can be big news, especially in a small community. Reporters may try to get the facts by interviewing employees. BSCs should instruct employees how to handle to questioning press.

“Train supervisors on who to talk to, who not to talk to, and what to say,” says Athey, who recommends filtering all inquiries through a centralized source that has talked with an attorney. “Certainly words taken out of context can hurt. Once stated, they can become evidence. Get facts right and accurate before speaking to the press. Employees should say: ‘Questions should be directed to the home office’ and give a number.

“I have seen situations where an individual without first-hand information had assumptions published in the press,” continues Athey. “It didn’t turn into a huge deal, but it certainly put the company behind the eight ball.”

Managing employee productivity
Especially if employer negligence is perceived as a factor, employees may become reluctant to go to work sites they’re unfamiliar with, or slow down in their cleaning regimens. Or worse, they could get so distracted by thoughts of tripping on stairs with buckets or being overcome by noxious chemicals that they create a self-fulfilling prophecy and actually injure themselves.

“A BSC that sends the message that they care about the health and well being of their employees will be in a far better competitive position to attract and retain workers,” says Kerlish.

“Productivity needs to be up, or customers won’t deal with you,” adds director of safety with Aetna Building Maintenance Al Haley, who recommends delivering regular safety training in a manner that engages adults, on-site spot checks, writing up safety violations and following them up with increasingly serious reprimands, and offering incentives for increasingly higher levels of compliance.

The only thing Haley’s seen broken in his tenure with Aetna have been new records for good safety. What are his best weapons?

“Education and communication,” he says. “They’re the two biggest things any company should do.”

Lori Veit is a business writer in Madison, Wis. She is a frequent contributor to Contracting Profits.