Mark Lies and Elizabeth Ash Published in Above Ground Level
"Use Caution when Allowing Safety Inspections by Insurers"

Seyfarth Shaw Chicago Labor & Employment lawyers Mark Lies and Elizabeth Ash wrote an article published in the September 2011 issue of Above Ground Level. The article discussed the implications of the U.S. District Court decision Solis v. Grinnell Mut. Reins., Co., in which the court held that insurers' reports are not necessarily privileged and upheld the Occupational Health and Safety Administration's (OSHA) subpoena power.

Mark and Elizabeth state that when OSHA begins investigating an insured, an insurer's report may be used against that insured party. In the Grinnell case, the court held that all of the OSHA-requested documents related to the investigation and fell within the realm of OSHA jurisdiction. Based on this ruling, Mark and Elizabeth recommend that those who consent to safety inspections by their insurers take the following steps to avoid liability under the OSHA Act:

• consult with legal counsel prior to an insurer's inspection, unless state law rules otherwise
• ask for permission to review a draft report from the insurer
• ensure that any insurer reports are marked "privileged and confidential" and sent to the insured's legal counsel
• correct any report-identified hazards and immediately document all efforts to remedy them
• ask to be notified by the insurer before responding to any OSHA or other third-party subpoenas, and request a copy of those documents