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Key Takeaway: New OSHA directive aims to give families of deceased workers more information about ongoing agency investigations.
Potential Impact: Supporters say the directive addresses families' right to know about workplace incidents and subsequent investigations.
What's Next: The directive is effective immediately.
By Stephen Lee
Families of workers who die on the job will be better informed of the status of ongoing federal inspections, under a directive issued by the Occupational Safety and Health Administration April 17.
The 25-page directive, which took effect immediately, outlines a three-step approach for communicating with family members that includes an initial communication, follow-up communications throughout the inspection, and post-inspection communications.
The new procedure “will ensure that OSHA receives the necessary information about the victim, job history, co-workers, and keeps the next of kin informed from the beginning of the inspection and through the progression of the inspection until the case is either closed or becomes a final order of the Occupational Safety and Health Review Commission,” OSHA said in the directive.
During the initial communication, OSHA representatives will notify the worker's next of kin that an inspection is being conducted, that it may take up to six months to complete, that citations and civil or criminal penalties against the employer may be sought if OSHA finds violations of safety laws, and that the agency is barred from releasing certain information because of legal privileges.
The worker's next of kin must be contacted early in the inspection process to give the OSHA representative “the opportunity to establish a trusting and working relationship … and communicate that the incident is being investigated,” the directive said.
In the second stage, OSHA personnel will provide follow-up information with the next of kin on a periodic basis, such as once every 30 days. The agency must also explain the various aspects of the inspection to the worker's family.
The third and final stage of post-inspection communications consists of a telephone call to “explain findings and address any questions.” If citations are issued, the OSHA representative should explain the alleged violations, proposed penalties, reduction factors, violation classification, abatement, requirements, settlement procedures, and Freedom of Information Act requests. If no citations are issued, the representative should explain the agency's general policy on citations.
The agency stressed that “[c]are must be taken to ensure sensitivity and tact are exercised during all communications.” If a deceased worker's next of kin does not want to speak with OSHA, “their wishes should be respected,” the agency said.
OSHA encouraged states that run their own OSHA programs to adopt the directive.
Development of the procedure was begun in February 2010 by Guidance for Involving Victims' Families, a family rights group that included two OSHA area directors and four staffers from the agency's Region 7 office, Ron Hayes, executive director of victims' rights organization The FIGHT Project, told BNA April 18.
“This has never happened before,” Hayes said. “If you look at the past 42 years of OSHA, they've always been afraid to talk to the families. They didn't have any guidelines. They didn't know what to do or how to do it. … They feel so emotionally challenged that they don't know how to talk to families, how to set up a phone conversation. Sometimes they tell the family too much and then when the case file comes out the information's not there, and the family gets upset.”
Under the new procedure, “by OSHA showing the respect and dignity to these families, everybody's going to benefit, including OSHA. This is a win/win.”
David Michaels, assistant secretary of labor for occupational safety and health, touted the new policy in an April 17 statement, saying the agency is committed to working with families to explain the circumstances surrounding a worker who is killed on the job.
“This directive ensures that OSHA receives the necessary information from the family to assist in the investigation, and keeps the family informed throughout the investigation and settlement processes,” Michaels said.
Celeste Monforton, a research professor at George Washington University's School of Public Health and Health Services, told BNA April 17 that the new directive is not substantially different from the language in the current field operations manual that OSHA inspectors use to guide their inspections.
“It beefs up language about the importance of communicating with family members, and has specific instructions outlining that those communications should be routine and continue until the case is a final order of the Review Commission,” she said.
However, Monforton said, the Labor Department could have gone further. For example, the agency could have incorporated provisions from the Protecting America's Workers Act (H.R. 190) that would give families an opportunity to issue a victim's impact statement during settlement negotiations and extended these procedures to family members of workers who are seriously injured.
The Protecting America's Workers Act was introduced in the House Jan. 5, 2011, by Rep. Lynn Woolsey (D-Calif.), ranking member on the House Education and the Workforce Subcommittee on Workforce Protections. It remains in the subcommittee (41 OSHR 53, 1/20/11).
Monforton said the Labor Department missed an opportunity “to be bold on an issue for workers and their families, but apparently it's not the season for that.”
Similarly, Tammy Miser, founder of United Support and Memorial for Workplace Fatalities, also called for more family participation in settlement negotiations.
In an April 17 statement, Miser said she was disappointed that OSHA did not follow the example of the Mine Safety and Health Administration, which she said puts a family's right to know before that of a company's.
But Miser also said the new policy “responds to concerns raised by widows, mothers and fathers, sons and daughters, and other family members that they were kept in the dark too often about OSHA's investigation into how and why their loved one died.”
By Stephen Lee
A copy of the Occupational Safety and Health Administration's directive for communicating with family members is available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-153.pdf.
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