What will happen at your workplace if a serious incident or fatality occurs? Will your managers know how to respond? It is critical that your organization has an incident response coordinator who is familiar with occupational health and safety obligations, is trained to respond in an incident and deal with the occupational health and safety investigator and who can, with the help of legal counsel, understand the complex legal issues that your organization may face to ensure your incident response is appropriate and minimizes legal liability.
Generally speaking, the response of an organization immediately following an incident is critical in determining the outcome of any investigation by the occupational health and safety inspector.
These are the basic steps that need to be followed in all jurisdictions. However, your own plan should be more detailed, ensure that the questions posed below are answered and the response, no matter how serious the incident, unfolds according to plan.
- Provide medical assistance
Identify location of first aid supplies and notify trained first aid responders at the workplace.
- Preserve the scene
This is required by legislation and photos, measurement and notes will need to be taken immediately to help with the internal report.
- Report the incident to required authorities
Every jurisdiction has different requirements with respect to reporting – it is critical that incidents that must be reported are reported in a timely manner. Failure to do so may result in the investigator thinking that you are covering up the cause.
- Contact your lawyer
If legal counsel is involved from the beginning, issues of privilege and responding to orders can be addressed and many of the pitfalls we see occurring in investigations can be avoided.
- Cooperate with the investigation being conducted by the OHS inspector, but conduct your own investigation
There is no question that you have to cooperate with the inspector. The incident response coordinator may well be the first contact your organization has with the inspector. He or she should be able to communicate the importance of safety at your organization and immediately be able to pull together the steps that have been taken to prevent the incident.
There are many decisions that will have to be made regarding the internal report. The legislation in your jurisdiction may require the participation of the Joint Occupational Health and Safety Committee ("JOHSC") in any investigation.
- How will that be done?
- Should the report be disclosed to the occupational health and safety inspector?
- Have you done an internal audit of your training records and policies?
- Is an expert required?
Regardless of how it may ultimately be used, the internal report should be conducted at the request of legal counsel (and be protected by privilege) in order to assist your organization in responding to any orders or charges resulting from the incident.
- Respond to Orders
There is no option but to respond to orders from the investigator from the relevant regulatory authority. However, some orders may not be feasible, (e.g., an order to modify equipment in contravention of a warranty) and others may result in the disclosure of privileged information (e.g., the requirement to disclose a report). From a practice point of view, it is better to address any such issues with the inspector before an order is issued. Any orders should be reviewed with legal counsel to determine what responses are available.
- Take corrective steps
If your report (or the incident itself) reveals flaws in the operation of your health and safety system, your organization should take whatever corrective measures are necessary to solve the problem.