Could you go to jail if a worker is killed or injured? Experts say yes
May 1, 1997 6 minutes read
Could you go to jail if a worker is killed or injured? Experts say yes
Prosecutors turning to criminal charges; OSHA not your only worry
A worker dies; you go to jail. Prosecutors nationwide are bringing criminal charges against employers for failing to protect their workers and throwing some company presidents in jail with common criminals. And they have their eye on you, too.
In fact, occupational health professionals may be a prime target of any criminal investigation following the death or injury of a worker. As an occupational health provider, you could be at particular risk because you are specifically charged with ensuring a safe workplace. When someone dies, investigators may look first to the occupational health professional and ask why you did not prevent it.
The trend of criminal prosecution after workplace deaths and injuries may provide more incentive than ever for employers to listen when you recommend workplace improvements.
It used to be that fear of federal safety officials was a prime motivator for employers who were not benevolent enough to protect employees’ health and safety without a threat of punishment. Now it seems the major fines that can be imposed by the federal Occupational Safety and Health Administration (OSHA) in Washington, DC, are a small matter compared to the prospect of a 20-year prison sentence for manslaughter.
Prosecutors look for responsible party
State prosecutors see workplace deaths as not all that different from any other deaths within their jurisdictions. An investigation may ensue, and if it looks like someone is criminally responsible, that person might go to jail, explains David Burns, JD, assistant attorney general for the state of Massachusetts. The Massachusetts attorney general’s office is one of several across the country that is pursuing criminal prosecution for workplace deaths and injuries. (See related story on p. 51 for a summary of a current case.)
"We see them as crimes, plain and simple," Burns says, referring to failures to provide safe workplaces. "We don’t relish bringing these kinds of cases, but we take them seriously. This should be a wake-up call to the industry."
Burns says criminal prosecution for workplace deaths and injuries is not a new idea, pointing out that Massachusetts and many other states have long had statutes that allow for criminal prosecution in such situations.
State laws vary regarding exactly how prosecutors investigate and bring criminal charges, but Burns notes prosecutors usually will look for those within the organization who knew or should have known about the hazardous conditions that led to the deaths or injuries. In small operations where company executives have personal knowledge of most operations, the company president is a likely target for prosecution. But depending on the circumstances of a particular incident, charges may be brought against line supervisors, managers, and occupational health providers.
"Given the nature of what a director of safety or occupational health does, it certainly is plausible that they could play a role in failing to recognize or remedy unsafe conditions," Burns says. "I would think a person in that position would be looked at to see what role, if any, they played in this death or injury. Then the question is whether it rises to the level of criminal conduct."
(See related story on p. 52 for more on how to protect yourself.)
Many occupational health professionals become complacent about legal risks because they practice in hospitals or began their careers there, explains Pat Stamas, RN, COHN, president of Occupational Safety and Health Resources, a consulting firm in Dover, NH. Because the hospital is the "deep pocket" when a patient threatens a lawsuit and would handle any legal action against the occupational health program, providers can be lulled into a false sense of security.
"It’s a little-known fact that occupational health providers are much more liable than we ever thought, both for malpractice suits and criminal punishment," Stamas says. "We’ve been led down a primrose path thinking there aren’t any legal ramifications to our actions. Everyone sort of pooh-poohs the idea and talks about liability insurance, but there’s more to it than that."
Stamas’ career has involved freelancing as an occupational health nurse at employers’ worksites, meaning she works on-site but is technically a contractor, not an employee. That can diminish her ability to persuade the employer to make necessary improvements to worker safety, thereby increasing the chance she will be left in a precarious legal position. The same dilemma can be faced by a freestanding or hospital-based program.
Over the years, Stamas’ warnings and advice have been ignored many times. While those incidents are not exactly common, she says they also are not rare. When this situation does occur, it often involves a serious hazard.
Stamas recalls an incident in which the company that hired her had no policy that formally prohibited the use of narcotic painkillers while driving a forklift. However, she knew a forklift driver was using narcotic painkillers at work. She informed her immediate supervisor at the company, who was an employee, but got little response. When she felt the hazard was getting no attention, she went over her supervisor to inform the company’s medical director. He eventually took the matter to a corporate level and dealt with the problem.
While that situation was resolved, Stamas says it shows the dilemma faced by many occupational health providers who can spot hazards but then have little say in company policy. Typically, she says, the employer expects the occupational health provider to show initiative and take responsibility until you have something to say that the employer does not want to hear. Then you become "just a consultant," with little power to persuade.
While workplace deaths, especially those that result from an egregious oversight, are the most likely incidents to result in criminal prosecution, charges also might follow injuries and illnesses. Massachusetts prosecutors are pursuing two metal processing companies in Sutton, MA, for assault and battery with a dangerous weapon. The alleged weapons are lead dust in one case, hazardous solvents in the other. State officials claim workers were exposed to the hazardous substances in violation of accepted safety standards. The owners of both companies pleaded not guilty in Worcester County Superior Court, and the cases are pending.
"These are not accidents we’re talking about," the assistant attorney general explains. "Sometimes accidents happen and you can’t say someone is criminally responsible. But just because an incident happens in a workplace doesn’t mean it’s just an accident and you’re not going to be held responsible in the legal system."
States have jailed about a dozen employers nationwide since 1990, including the owner of a chicken processing plant in Hamlet, NC, who pleaded guilty to voluntary manslaughter in 1992 and was sentenced to almost 20 years in prison. The prosecution came after 25 workers died in a 1991 fire at the plant, trapped behind exit doors that were locked to prevent employees from stealing chicken.
Though this kind of legal authority has been available to most states for decades, some legal experts suggest state prosecutors have utilized the option much more since 1985, when three executives of a Chicago company were charged with murder after an immigrant worker died of cyanide poisoning. The worker used cyanide to extract silver from used photographic film. The executives pleaded guilty to involuntary manslaughter. Soon after, Supreme Courts in Illinois and Michigan determined that criminal codes applied in such circumstances. In 1989, the U.S. Supreme Court upheld the Illinois ruling.
If criminal prosecution takes place, it is in addition to whatever OSHA may do regarding the workplace hazards. Prosecutors may use OSHA’s investigation as evidence of the workplace hazards, but the Massachusetts assistant attorney general notes that there are some scenarios in which OSHA would not take action, but prosecutors would.
Burns notes employers do not have to intend to kill or injure employees in order for criminal charges to be appropriate. Charges can be brought when the employer was reckless or negligent, meaning hazards were known and not corrected, or the employer should have recognized the hazard but did not.
That brings up an especially important point for occupational health professionals. An investigation of criminal responsibility will include a look at who knew what, when they knew it, and what they did in response. If you are responsible for detecting workplace hazards, you will be protected by a paper trail showing you made a reasonable effort to detect those hazards. The fact you failed to detect a hazard does not necessarily mean you are criminally negligent, Burns explains. The question will be whether you acted responsibly in an effort to detect the hazards, even if you ultimately did not find the one that led to a death or injury.
And once you detect a hazard, criminal investigators will want to know what you did in response. Failure to abate the hazard does not necessarily mean that you, the occupational health provider, are criminally responsible for the ensuing death or injury. It may, however, mean that the company owner or another responsible party is liable if he or she failed to act on your advice.
The key can be whether each person did what he or she was responsible for doing, within the limitations of that person’s authority. A paper trail showing that you alerted company officials to the hazard may prove to be the difference between going to prison and waving goodbye as the company president goes to prison.
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