While a safety audit improves safety and reduces liability risk, it also creates evidence. In the event of an accident or investigation by government regulators, safety audits are relevant to the question of whether the company knew about the hazard and failed to take reasonable steps to correct it. OSHA may allege a willful violation, and uncorrected hazards identified on the company’s audit may support the case. A willful violation can result in penalties up to ten times what they would be otherwise. The evidence is especially compelling to OSHA where an employee has been injured or killed.
By forcing disclosure, it can be argued that OSHA is undermining its own goal of making workplaces safer. In spite of this argument, OSHA continues to force disclosure of voluntary self-audits. Business owners need to weigh the risk against the rewards gained from performing voluntary self-audits.
General counsel and other company attorneys should not assume their involvement in audits will protect the results by way of attorney-client privilege, or be viewed as attorney work-product. However, if the audit can be prepared in connection with litigation, it is more likely to be viewed as attorney work-product.
In recent years, OSHA has created numerous emphasis programs targeting specific employers or industries. If a company is identified as a target, or likely target for one of these inspections, connecting the purpose of the audit to that targeting program may increase the chances of protecting its content.