Conducting Safety Audits -- Without Creating a Smoking Gun
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In this issue..
- Conducting Safety Audits - Without Creating a Smoking Gun
This issue by: Margaret S. Lopez of Ogletree Deakins.
Margaret S. Lopez
OGLETREE
DEAKINS
margaret.lopez@ogletreedeakins.com
202-887-0855
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Mining companies, chemical and manufacturing plants, and others in highly regulated industries, are increasingly relying on safety and health audits to monitor compliance with the law and company safety rules. Many use in-house personnel for their audits (sometimes from corporate headquarters or from operations other than the one being audited). Others use outside consultants. Audits may be conducted under a formal, established company procedure or may be more informally structured. Regardless of who conducts a safety audit or what form the audit takes, a well planned audit with thorough follow through on correction of hazards can be a good means of checking up on the current state of the company’s safety and health compliance and improving overall safety and health on the job.
While audits can certainly be a valuable component of a safety and health program, they also paradoxically can increase legal liability, if appropriate precautions are not taken. Audit records can be turned against the company in certain situations. In litigation, injured employees may try to claim that audit documentation indicates that the company or managers engaged in gross negligence or intentional disregard of the law because they knew of safety and health hazards and did not take appropriate action.
Government agencies, such as the Occupational Safety and Health Administration or the Mine Safety and Health Administration may also try to use audit records to justify heightened enforcement actions against the company or managers. In such situations, audit records may be used to try to establish facts of a safety violation, who knew about it, when they first learned of it, what specifically they may have known about it, and what was recommended be done to address the hazards. Such records as the audit planning documents, audit team notes, photographs, surveys, test data, and draft and final reports may become key evidence against the company in an agency action or litigation.
This is not to say that audits should not be done or that an audit should not be an honest assessment of the current state of safety and health at the worksite. It is important, however, that the audit process, whether done by outside consultants or in-house, must include measures to prevent the audit from becoming smoking gun evidence against the company and its managers. Although auditing can never be done without some legal risks, the following precautions can reduce such risks to a considerable degree.
Limit the Audit to a Manageable Scope
In deciding to conduct an audit, it is important that the company not take on more than it can handle. In other words, the scope of the audit should not be greater than the company’s ability to quickly implement an appropriate response to whatever the audit findings may be. It does the company no good – and potentially could be very harmful – for the company to identify a host of safety and health issues and then to do little or nothing to address them. Even if the audit has to be broken up into stages to be completed at different times, it is important that the audit not reach into issues the company is not prepared to address with a timely and appropriate resolution.
Be Prepared to Timely Respond to Every Issue Identified
Part and parcel with limiting the scope of the audit to a manageable size is to be prepared to timely respond to every issue that may be identified in the audit. This may mean having extra resources and manpower ready to be deployed quickly to address those things that are found. It cannot be overemphasized that identifying existing hazards is only the beginning of a good safety and health audit. The follow-through to appropriately correct the hazards that are found is critical. Even leaving one or two items unaddressed can create serious issues if those things were to result in an accident or agency enforcement activity.
Thoroughly Document Steps Taken to Address Audit Findings
Also of critical importance is thorough documentation of corrections that are made. For every hazard or procedural shortfall that is identified in the audit there must also be documentation that an appropriate correction has been made. If a hazard found in the audit cannot be fully abated quickly (because parts have to be ordered or special expertise is needed), then every significant step toward eliminating the hazard needs to be documented. It is important to show that the hazard is not being ignored -- that appropriate steps are being taken toward a timely correction.
If the hazard is of such a nature that equipment needs to be taken out of service or a work area needs to be closed in order to prevent exposure until the hazard can be abated, then a record that that has been done should also be made. If the company disagrees with a finding or recommendation in the audit report, then that needs to be documented too, including a detailed explanation of the bases for the company’s conclusions and what other actions, if any, were taken to address the item.
This follow-up documentation should be made in the audit report itself or attached to the audit report. This helps ensure that, should the audit ever be produced in litigation or an agency investigation, it is clear that the audit findings were addressed by the company.
Do Not Interfere with Audit Activity
It is also important that, once the company has decided to conduct an audit and the scope of the audit has been established, the auditors be allowed to do their job without interference from management. The company and its managers cannot be seen as trying to hinder or influence the auditors’ independent appraisal of safety and health at the worksite. No attempts should be made by anyone outside the audit team to change the scope of the audit once it has begun or to edit or censor the audit report itself.
Attribute Appropriate Gravity to Audit Findings
In preparing the audit report and determining what corrections should be made, the auditors and management should attribute the appropriate gravity to the audit findings. To treat something more lightly or more seriously than the situation warrants can lead to problems later.
Do not Destroy Audit Records if Litigation or Agency Investigation is Expected
In a similar vein, management needs to be aware that, in the event there were to be an agency inspection or a workplace accident or complaint filed that relates to the subject matter of the audit, no evidence of the audit may be destroyed or altered. In that event, all audit records (including informal notes and drafts and final reports) would have to be preserved. This includes documentation that may only exist in electronic form. This rule applies whether the audit is still ongoing or has been completed.
Again, this legal limitation on destruction of evidence only applies where the company is actually on notice of that there is a reasonable likelihood of litigation or agency investigation. Any destruction or alteration of potentially relevant evidence could result in serious charges against the company and its managers. It also could result in monetary sanctions being imposed by a tribunal and other sanctions, up to and including an adverse decision in the case.
Absent indication that there is a legal need to preserve documents, audit records can be destroyed in accordance with the company’s document retention policy. It is generally suggested that audit records not be kept any longer than necessary, perhaps no longer than the date of conclusion of the next audit or one year, whichever is shorter.
Conclusion
In certain situations, companies may want to consider taking additional steps to attempt to preserve the confidentiality of audit findings through application of the attorney/client privilege, the attorney work product doctrine, or the self-investigative privilege. These legal protections against disclosure are very limited with respect to safety audits, and in many instances would not apply. They are something to keep in mind, however, as a possible option and something that legal counsel could further assist with if circumstances warrant.
Since most audits would not qualify for any such protections against mandated disclosure, it is critical that the measures outlined in this article be a part of every audit the company conducts. Well conducted audits can be a valuable part of a company’s safety and health program, but only if appropriate steps are taken to reduce the risk of creating what could be very harmful, smoking gun evidence against the company or its managers.
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