When a workplace injury occurs at your construction site, the actions you take in the immediate aftermath can significantly impact potential legal consequences, insurance claims, and your business's financial health.
This guide outlines critical steps and best practices to help contractors navigate the complex terrain following a workplace injury.
The Boss's Checklist: Do These Things ASAP After the Injury
1. Render Medical Aid and Secure the Area. Your first priority should always be the injured employee's well-being. Ensure they receive prompt medical attention and secure the accident area to prevent further injuries.
2. Get an attorney involved immediately to invoke key legal privileges that may protect certain communications and investigations. For example, your attorney can help you document the accident without unnecessarily creating evidence (such as witness statements) that may be discoverable in litigation.
3. Preserve All Evidence. When a workplace accident occurs, you have a legal duty to preserve all evidence that might be relevant to potential litigation. If evidence is destroyed, altered, or lost after a company knows or should reasonably know that litigation is possible, this can be considered spoliation, exposing you to court sanctions and significantly damage your defense if a lawsuit is filed against you.
4. Evaluate OSHA Reporting Requirements. Determine whether the incident requires OSHA notification: Fatalities must be reported within 8 hours; inpatient hospitalizations, amputations, or eye loss must be reported within 24 hours. Make sure your OSHA Form 300 logs for work-related injuries and illnesses are up to date.
5. Notify Your Commercial Insurance Carrier. Failing to report an incident promptly can give your insurer grounds to deny coverage, leaving you financially exposed. Your carrier may also want to conduct its own investigation prior to settling a claim. A business attorney can help you manage those interactions to steer clear of policy exclusions and other coverage issues.
6. Avoid Actions That Could Be Construed as Retaliation. Any adverse employment action against an injured worker could potentially be viewed as retaliation, which creates additional legal exposure.
What To Do When Lawyers Get Involved
Assume you'll face legal action following a serious workplace injury. This mindset helps ensure proper evidence preservation and appropriate communication protocols.
Your Hendershot Cowart attorney can quarterback your overall legal defense and regulatory response strategy:
- OSHA Investigations And Citation Defense: We can manage all OSHA interactions to protect your rights, observe post-incident walkarounds, prepare your employees and managers for investigative interviews, and – if necessary – develop affirmative defenses to contest OSHA citations and negotiate with OSHA for reduced classifications or penalties. Be aware that a willful violation citation from OSHA can trigger an intentional act exclusion to your commercial general liability insurance policy.
- Insurance Coverage Issues: Remember that your commercial insurer's counsel gets paid by the insurance company – not you. Their financial interests may sometimes diverge from your legal interests, particularly when it comes to settlement decisions. Your business attorney, on the other hand, truly represents your interests and can help protect you from activities that might expose you to a policy exclusion or coverage dispute.
- Communication With the Injured Employee: When injured employees obtain legal representation, direct communication about the incident itself often becomes restricted. All communication regarding the incident may need to flow through legal counsel, complicating normally straightforward interactions. Your attorney can help you manage that careful flow of communication. Normal day-to-day communication with the employee, however, is allowed.
- Beware Of Whistleblower Claims. Be very careful about taking any adverse action against employees who report incidents to OSHA or cooperate with an OSHA investigation – these are protected activities. Adverse actions can include a change in duties and responsibilities, denial of overtime, or reduction in pay or hours. Your attorney can advise you on allowed actions and help you validate and document employment changes.
- Worker’s Comp Challenges: Offering appropriate light-duty accommodations and managing return-to-work issues requires careful navigation of both legal and practical considerations. Employees sometimes refuse light duty offers, which creates complications for workers' compensation benefits and return-to-work planning. Workers' compensation case managers may appear biased. Your attorney can take the lead on these issues – ensuring compliance with the return-to-work plan, documenting communications to ensure fair claim handling, and escalating issues to your insurance carrier as needed.
The First 24 Hours After A Worksite Injury Are Critical
Construction site injuries can quickly escalate from medical concerns to legal nightmares.
Consult with qualified legal counsel immediately after a worksite accident to help protect your business from missteps that could cost you thousands should an injury result in legal action.