OSHA, ethics and attorney-client privilege

By Trent Cotney, Adams and Reese LLP.

OSHA citations are not to be taken lightly. Here's what you need to know and how to respond if your business has a violation.

Every employer knows that OSHA inspections and citations can be serious business. This perception is especially accurate if hazards are discovered during an OSHA investigation but not abated. 

One example is an April 2022 case in which a Pennsylvania manufacturing worker suffered an arm injury and had to undergo an amputation after getting his limb caught in machinery that had previously been cited as deficient. In response to that injury and the lack of action taken after the initial inspection, OSHA issued 11 safety violations to the company, including eight serious and one willful violation, and proposed penalties totaling $108,769. The agency also issued a press release outlining the safety issues and the company’s failure to remedy the problems.

Best practices for employers

In these and similar instances, it is critical that employers respond to OSHA citations. They must promptly review the safety issues that OSHA has identified and develop an action plan to abate the deficiencies. Such a plan can involve repairing machinery, eliminating onsite hazards and offering additional employee training. 

Failure to take meaningful action can lead to additional citations, as with the Pennsylvania case, and press releases that can do significant damage to a company’s reputation. Both the fines and the public relations hit can be devastating for a business.

In addition to making repairs in response to OSHA violations, employers have an ethical obligation to provide a safe environment for their employees. These workers rely on their employers for their livelihood, but they should not be expected to risk their lives by going to work every day.

Attorney-client privilege and attorney work product

When handling OSHA investigations, employers are advised to retain counsel. Generally speaking, communications between a client and its counsel are privileged and cannot be disclosed during an OSHA proceeding. 

Similarly, attorney work product privilege, which can include photographs, measurements, documents and other materials prepared by an employer’s attorney or a company in anticipation of litigation may be shielded from discovery.

The purpose of both the attorney-client privilege and the attorney work product is to ensure that legal assistance is available to employers, but that all communications and materials remain confidential. For example, the attorney may interview witnesses and obtain witness statements and request measurements or photographs of the job site, all of which may be attorney-client privileged information or work product. Without such a guarantee, neither employers nor attorneys would be willing to risk an in-depth accident investigation or evaluate a company’s legal compliance with OSHA standards.

Ethical issues

An attorney will advise any employer on a variety of things. However, every employer should remember to always tell the truth and cooperate with OSHA, but know, understand, and assert your rights during an investigation when appropriate. For example, OSHA investigators will not inform owners and supervisors of their right to have counsel present during an interview or the ability to refuse to sign written witness statements. 

Counsel can help navigate and assert these rights when necessary while ensuring compliance and cooperation.

Final thoughts

When it comes to OSHA compliance and managing the fallout after an OSHA inspection, attorneys and employers should see themselves as valued partners. 

The American Bar Association explains the attorney role, in part, this way: 

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. 

In collaboration, attorneys and their clients can devise reasonable and attainable plans to create safe and healthy work environments where both employees and companies can thrive.

The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

About Trent

Trent Cotney is a partner and Construction Practice Group Leader at the law firm of Adams and Reese LLP and NRCA General Counsel. You can reach him at trent.cotney@arlaw.com or 866.303.7868.