By James L. Curtis and Kerry M. Mohan
The U.S. Chemical Safety Board (CSB) recently announced its new policy regarding employee participation in the investigation of serious chemical accidents. The CSB’s new policy provides ten new rights to employees:
- At unionized sites, the CSB will notify the facility’s union(s) of its plans to investigate. At non-union sites, the CSB will identify employee representatives, such as members of a Health and Safety Committee, if possible.
- Similar to full-time employees, the CSB will seek participation from contract employees and their representatives.
- The CSB will establish direct, face-to-face communications with employee representatives immediately upon commencing the investigation.
- The CSB will actively take measures to prevent interference with the employee’s right to participation.
- CSB investigators will allow and encourage employee representatives to accompany the CSB team during inspections.
- CSB investigators will conduct separate meetings with employee representatives.
- During CSB interviews, any non-supervisory employee may be accompanied by another non-supervisory employee, a personal attorney, or a family member.
- The CSB will provide employee representatives the opportunity to review and comment on evidence and equipment testing protocols and to observe testing. Employee representatives will also have access to any test results to same extent as an employer.
- The CSB will provide employee representatives the opportunity to review and comment on the CSB’s findings to the same extent as an employer.
- The CSB will monitor employee participation to enforce its prohibition against whistleblower retaliation.
Though similar to employee rights under the Occupational Safety and Health Act (OSHA), the CSB’s new policy greatly expands employee participation rights in several respects. For instance, the CSB’s policy increases the number of employees who can participate in the CSB’s inspection. Further, unlike OSHA, the CSB’s policy provides employees the right to actively review and challenge the CSB’s investigatory findings to the same extent as the employer. Such involvement could delay the investigatory process or increase the likelihood of findings unfavorable to the employer. Moreover, the CSB’s policy greatly limits the scope of individuals who may be present during CSB interviews. Fundamentally, the CSB is seeking to exclude company representatives from being present when non-management employees are interviewed by the CSB.
It is still unclear as to how the CSB’s new policy will be implemented in the future. Nonetheless, employers can expect issues to arise from this policy when the CSB conducts an investigation. Accordingly, an employer must be prepared to assert its rights and prevent the CSB from refusing the company to appropriately participate in the investigation.