Legal nightmares may await many U.S. industrial firms because of significant gaps in their disaster planning, according to Arthur Sapper, a Washington, D.C., attorney who specializes in occupational safety and health issues.
Sapper, who has years of experience defending clients against major Occupational Safety and Health Administration (OSHA) citations, discussed the problem during his presentation at an Oct. 13 forum titled "When Natural and Industrial Disasters Collide." He spoke on a panel titled "How Business Responds to the Challenge" and provided a detailed summary of steps businesses can take to prepare for an industrial or natural disaster.
For example, personally knowing local OSHA investigators and emergency response personnel can be crucial advantages once disaster strikes. Knowledge of insurance coverage and who to call is also important. Because telephone numbers and personnel can change, Sapper recommends that a secretary be assigned the task of keeping all disaster-related information up to date once a year.
After the forum, Sapper, who litigates regularly before the Occupational Safety and Health Review Commission, discussed in greater detail the three disaster planning measures that, in his experience, are most frequently overlooked by businesses.
"Companies don't think about how they'll handle public relations, they don't think about who their attorneys should be, and they aren't prepared to figure out who's going to investigate the disaster," he said.
The importance of public relations was underscored by other panel members at the conference. They pointed out that if a business does not provide accurate information quickly about a disaster, members of the media with their own agenda may become involved. Once a company loses control over the flow of information, there is a greater chance the disaster will inflict lasting damage on a firm"s reputation.
Industrial disasters are also OSHA events, Sapper noted, so having qualified legal representation is crucial. A company that expects its regular attorneys to handle a catastrophic loss may be making a huge mistake.
"Once a major OSHA case arises," he said, "a law firm that has handled small OSHA cases may find itself out of its depth."
A third frequently overlooked component of disaster preparation is thinking ahead about who will investigate. "Corporate managers don't realize there are various ways to investigate," Sapper said.
After the disaster, one of the most important decisions confronting management is whether to include lawyers in the investigation of the event. If the aim of the investigation is also to determine legal ramifications, then it ought to include legal counsel, Sapper said.
An investigation conducted by a lawyer is considered to be "under privilege." This affords the company a measure of protection because the investigation"s results are covered by the attorney-client privilege.
The major drawback of an "under privilege" investigation is that, because lawyers are involved, it will take longer and cost more. "But one of the biggest dangers for management," Sapper said, "is to begin a non-privileged investigation and later think better of it, because then it may be too late."
Safety managers or engineers should not be responsible for investigating their own conduct. That's why Sapper listed other investigative options plant managers need to consider, such as drawing on personnel from outside the facility or outside the company. Putting the manager or engineer responsible for safety on the investigation team exposes him or her to a conflict of interest and may impair the credibility of the team's report.
Although some decisions can be made only after a cataclysm has occurred, Sapper still believes many corporations could do a better job of thinking through their options before disaster strikes, without the pressure and stress caused by the catastrophe.
"These options need to be understood ahead of time," he said, "so when the event begins, the right decision is made."