This article written by David Fisk and Darren Harrington, is a feature article in the Summer 2020 issue of the IN FOCUS Magazine published by TEXO, the Construction Association.
The Occupational Safety and Health Administration (OSHA) is tasked with ensuring safe working conditions by setting and enforcing standards and providing training, outreach, education, and assistance. OSHA considers the construction industry to be a high hazard industry, with workers engaged in activities that may expose them to serious injuries, such as falls, electrocutions, and being struck with or caught-in or between objects. Excluding highway collisions, these hazards were the leading causes of private sector worker deaths in 2018.
Although employers invest considerable resources in combating these workplace hazards, even the most diligent employer will find its employees exposed to conditions that may lead to serious injuries and an OSHA investigation. If a violation is found, OSHA can assess civil penalties and, depending on the severity of the violation, those responsible can face imprisonment. An OSHA violation can also potentially be used as evidence of negligence in a civil lawsuit.
OSHA publishes recommended practices for employers to use in establishing a safety program to protect workers and to identify and solve issues before they occur. A significant challenge in implementing a safety program is deploying resources in a way that maximizes not only the safety of employees but also a company’s ability to defend itself against an OSHA citation. Fortunately, both objectives can be advanced by employing the framework of the “unpreventable employee misconduct defense” when implementing a safety program.
Even where OSHA can prove a violation of its standards, the “unpreventable employee misconduct defense” provides an employer the opportunity to prevail if the employer can prove:
- The employer has an established work rule that was adequate to prevent the violation;
- The employer effectively communicates the rule to employees;
- The employer requires compliance and has methods of discovering rule violations, even if it did not know about a specific violation; and
- The employer effectively enforces its rules when it discovers violations.
A safety program that utilizes these four elements can be highly effective in both protecting employees from workplace hazards and defending against an OSHA citation.
Established Work Rule
What is the first action the employer needs to take to demonstrate its commitment to employee safety and compliance with the cited OSHA standard? The employer needs to establish work rules that are compliant with OSHA’s standards.
A work rule is “an employer directive that requires or proscribes certain conduct and that is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood.”Danis Shook Joint Venture XXV, 19 BNA OSHC 1497 (OSHRC Rev. Comm. 2001) aff’d 319 F.3d 805 (6th Cir. 2003).
While this may sound simple in the abstract, developing rules for real world application can be difficult. The following recommendations can help:
- Employers should perform an assessment to ensure adopted rules focus on specific hazards in the work environment. Generic work policies are available online and from third parties but, to the extent possible, an employer’s rules should be specific to the industry, operation, and tasks to be performed.
- Work rules should be written and distributed to employees in a safety manual, and a signed acknowledgment of receipt should be required. Distribution to supervisors is not sufficient.
- Work rules should not be so general or vague as to be meaningless. For example, a rule requiring employees to use “appropriate ladders” without defining what is appropriate under the circumstances is too vague. Similarly, “always wear PPE” is not clear in terms of what personal protective equipment is being required. In contrast, while a directive to “stop work if you have a question, believe your assigned task might be unsafe, or because you need to change the scope of your task,” may not be specific, it does require the employee to stop and address the issue before simply “proceeding with caution.”
- Work rules should be re-evaluated and updated if there is a change in the nature of the employee’s work environment or how he performs his tasks.
- Work rules must be mandatory and should not involve employee discretion. For instance, “wear hearing protection if the noise level is bothering you” is not sufficient to defend against a citation for not requiring hearing protection at noise levels mandated by OSHA.
Communication is critically important to any safety program. To properly implement a safety program, the employer needs to demonstrate iteffectively communicated a rule, which, if followed, would have prevented the violation.
Effectively communicating the applicable work rule requires the employer to demonstrate that an adequate communication actually occurred. Simply providing the employee with the OSHA standards or safety manual is not enough, particularly where there is evidence of a pattern of non-compliance by employees. The employer needs to take steps to ensure employees understand the work rules and are equipped with the knowledge and tools to follow them. Employers can demonstrate effective communication by:
- Distributing a written copy of the work rules to every employee with an acknowledgement form for employees to sign.
- Conducting regular safety meetings, toolbox talks, video viewings, and training programs that address specific hazards and related work rules and include the distribution of those work rules.
- Placing and maintaining appropriate warning signs in hazardous work areas or on hazardous equipment.
- Conducting assessments, including, where applicable, field tests, to demonstrate that employees have effectively learned the proper application of work rules associated with their tasks.
- Providing appropriate translations of the communication methods above to any non-English speaking employees.
If there is one thing to take away from the requirement to communicate the established work rules to the employees, it is that documentation is key. Employers should maintain written records of any meetings, trainings, or field tests conducted, including dated sign-in sheets, agendas, and related materials.
Take Steps to Discover Violations
Once an employer has established work rules and effectively communicated those rules, the employer needs to demonstrate that it requires compliance by implementing methods to discover violations of its rules. If there is evidence of widespread non-compliance, such as where a hazardous condition existed for a long time or where several employees have violated the rule, then an employer will have a difficult time showing it takes the necessary steps to identify violations. In contrast, if the situation is highly unusual or the employee’s conduct was an isolated event, then it will be easier to show that the employer has effective methods in place.
To establish that an employer takes the necessary steps to discover violations, the employer must demonstrate that the methods are sufficient to discover potential violations and are actually being followed. Actions an employer may take to establish this element include:
- Conducting routine and documented inspections of the workplace to ensure compliance and following up on any corrective actions. An employer may also retain an insurer’s representative or other third party consultant to conduct audits to compare the findings with the employer’s internal results.
- Requiring frontline supervision to complete routine safety observation reports.
- Requiring non-supervisory employees to make safety observation reports when they identify non-compliance with a work rule.
- Making unannounced worksite visits by management.
Once again, documentation is key. If inspection results, reports, and related corrective actions are not well-documented, an employer will not be able to ascertain, and later prove, that its methods of discovering violations are effective.
Enforce Rules Through Disciplinary Action
The final and most important part of the “unpreventable employee misconduct defense” requires that appropriate disciplinary action be taken against employees for violating safety policies. This allows employers to show that employees are properly supervised and the safety policies are properly enforced. As common sense dictates, disciplining an employee for violating a safety rule makes it less likely that the violation will occur again in the future. At the same time, the failure to enforce the rule after discovering a violation could encourage further violations.
To accomplish this, an effective disciplinary policy that incorporates the following elements is critical:
- The disciplinary policy must be in writing, such as in a company safety manual, and distributed to employees with a signed form acknowledging receipt.
- To help deter violations, the disciplinary policy should include levels of discipline, progressing from a warning to suspension or termination of employment, depending on the severity of the violation and the employee’s disciplinary record. Any verbal warnings given should be documented and maintained in the employee’s file.
- Violations of certain work rules – such as those related to fall protection, Lockout/Tagout/Tryout (LOTO), and machine guard requirements – should be first-time dischargeable offenses due to the gravity of the violations.
- Since one of the biggest logistical challenges in proving this element is identifying all previous instances where employees have been disciplined, disciplinary records of safety violations should be kept not only with an employee’s personnel file, but also in a central file or location, and the employer should review the central file periodically to ensure employees are being properly disciplined given the nature of the violation.
As employers pursue the dual goals of minimizing OSHA liability exposure and protecting employees by taking the appropriate steps to prevent violations in the first place, the elements of the “unpreventable employee misconduct defense” can be used as a guide to establishing an effective safety program that will further both objectives.
David Fisk concentrates his practice on large-loss property subrogation and construction matters and advises developers, owners, and general contractors in construction disputes on both the plaintiff and defendant side of the docket. He is a council member of the Dallas Bar Association Construction Law Section and a member of the State Bar of Texas Construction Law Section.
Darren Harrington has represented employers since 1997 in OSHA matters. He knows the OSHA regulations in detail and works with clients to successfully provide their employees with a safe and OSHA-compliant work environment. When it comes to defending against OSHA citations, Darren believes zealous and principled advocacy is essential to both promoting employee safety and protecting the employer’s safety record, which is of paramount importance to the success of many businesses. Darren has represented employers across the country regarding both federal OSHA as well as most of the state plans. Darren’s clients include national and international companies in multiple industries including construction, manufacturing, food processing, oil and gas, logistics and hospitality.
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