A serious workplace incident rarely ends with the incident itself. In addition to caring for an injured employee, securing the worksite, and addressing immediate operational concerns, employers may also need to prepare for an investigation by the Occupational Safety and Health Administration (OSHA). The steps taken during the first 24 hours can affect the employer’s ability to respond effectively to OSHA’s inquiries and the company’s position in any resulting enforcement action or litigation.

Although every incident is different, employers should take a thoughtful and organized approach in the immediate aftermath to address both the incident itself and the possibility of an OSHA investigation. Here are five key things for employers to consider during this critical period:  

1. Assume OSHA Will Investigate: Many employers believe an OSHA inspection only follows catastrophic accidents. In reality, OSHA conducts tens of thousands of inspections each year, many of which stem from employee complaints, referrals, or routine programmed inspections. Once OSHA initiates an inspection, citations are common. Employers should therefore treat every serious workplace incident as though it may be reviewed by OSHA and potentially by opposing counsel, a judge, or a jury.
2. Preserve Evidence Immediately: One of the first priorities after an incident should be preserving relevant evidence. This includes securing the incident scene (when it is safe to do so), preserving equipment, collecting photographs, identifying witnesses, and preventing routine document destruction that could affect relevant records. A timely litigation hold can help preserve documents, electronic data, and physical evidence and reduce the risk of later spoliation claims. Evidence preservation is often essential to understanding what occurred and effectively responding to government inquiries.
3. Be Thoughtful About Written Records: In the immediate aftermath of an incident, supervisors and employees often feel compelled to document everything they know. While documentation is important, the quality of those records matters. Incident reports, emails, handwritten notes, and witness statements are frequently produced to OSHA during an investigation and may later become discoverable in litigation. Speculation, opinions about fault, admissions of violations, or attempts to explain why an incident occurred before the facts are known can create unnecessary challenges. Instead, contemporaneous records should focus on objective facts — who, what, when, and where — and avoid conclusions that are unsupported by the investigation.
4. Involve Counsel Early: Experienced OSHA counsel can provide value long before citations are issued. Counsel can assist with preserving privilege where appropriate, coordinating the company’s response to OSHA, advising management during employee interviews, helping evaluate document requests, and ensuring that the internal investigation is conducted with potential litigation in mind. Involving counsel early can also help the company take a thoughtful and informed approach from the outset, before decisions are made or positions are taken that may be difficult to change later.  
5. Preparation Is the Best Defense: No employer wants to experience a serious workplace incident. Employers that prepare in advance are generally better equipped when one occurs. Training supervisors on incident response procedures, establishing protocols for preserving evidence, understanding OSHA’s reporting requirements, and identifying legal resources before an emergency arises can significantly improve an employer’s ability to respond effectively. Although those steps cannot prevent an OSHA inspection, they can influence the course of the investigation and the company’s ability to defend itself.