The Occupational Safety and Health Administration (“OSHA”) continues to aggressively enforce workplace safety standards and issue citations and penalties for alleged violations. Those in receipt of an OSHA citation have an opportunity to contest the citation and engage in early settlement discussions. Absent an early resolution, disputed citations proceed to litigation before the Occupational Safety and Health Review Commission (“OSHRC”), where the parties have an opportunity to engage in discovery and, eventually, a trial.
As you can imagine, this can be a time-consuming and expensive process, with various different types of risks, depending on the particular facts and circumstances of a given case. Beyond the fact that employers must have appropriate policies and procedures in place to help protect against workplace safety issues (such as a health and safety plan and an employee handbook), it is critical for employers to monitor compliance and take prompt and effective action in response to potential workplace safety issues. In this regard, there are numerous traps for the unwary when dealing with and responding to an issue that can give rise to a potential OSHA citation. In many cases, how an employer responds to a given workplace safety issue can have a substantial impact on the employer’s ability to defend an OSHA citation or negotiate a mutually acceptable resolution.
Among other things, it is critical for employers to utilize skilled safety professionals (and often, competent counsel) to assist in conducting an appropriate investigation of the facts and issues in order to assess and develop available defenses. Oftentimes, employers will feel that a given situation arose because one of their employees went “rogue.” In OSHA parlance, this is referred to as the “unpreventable employee misconduct” defense. But successfully asserting this defense involves significantly more than simply arguing that an employee intentionally disregarded company rules.
In order to prevail on the “unpreventable employee misconduct” defense, an employer bears the burden of proving four elements. The employer must present evidence demonstrating that:
- The employer established work rules to prevent the alleged violation;
- The employer adequately communicated those work rules to its employees;
- The employer took steps to discover violations; and
- The employer effectively enforced the work rules when it discovered infractions.
As is apparent, this defense not only requires the employer to demonstrate that it had appropriate protocols in place, but that it monitored workplace safety issues and properly administered and enforced its protocols. This can be a difficult defense to prove, particularly if the employer did not observe good recordkeeping practices.
It appears that in the first five months of 2023, only one OSHRC decision has addressed the “unpreventable employee misconduct” defense. That case arose out of a 2017 collapse of portions of a 15-foot high soil surcharge mound and an adjacent concrete block wall. One worker was injured and another worker was killed. OSHA cited the general contractor and the case proceeded to trial. Among other things, OSHA alleged that the general contractor violated applicable fall protection standards when employees were installing pre-cast concrete blocks on the wall at heights of up to 8 feet without using adequate fall protection.
The employer invoked the “unpreventable employee misconduct” defense, arguing that it has a fall protection safety program in place and verbally disciplined employees for not wearing harnesses. The employer argued that all employees and subcontractors take an OSHA 10 course before working onsite and also attend weekly staff meetings.
This was not enough. The evidence demonstrated that the employer’s project manager personally observed an employee on top of the wall without fall protection. The project manager’s knowledge was imputed to the employer. Even though the project manager had authority to discipline the employee, he did not do so. According to the OSHRC, this suggested that the employer “did not effectively enforce its fall protection rule.” Not only that, there was no tie-off point for the employee to use even if he had worn a harness. Given this “lax enforcement of its fall protection rules,” the OSRHC ruled that the employer failed to establish the “unpreventable employee misconduct” defense.
We know you all take workplace safety issues seriously. Sometimes, employees engage in unpredictable conduct that deviates from company rules. Do not expect that you can successfully defend an OSHA citation simply by pointing the finger at an employee. It is imperative to have appropriate safety rules in place and communicate those rules to employees (sometimes in various languages). Regular training in various forms is critical. Employers should actively monitor potential workplace safety issues as well as compliance with safety rules. Where employees fall short of compliance, employers must appropriately discipline employees for violations. A failure to do so can result in a finding that employers did not take safety issues seriously (despite the existence of clear company protocols). Lastly, the need to keep detailed records cannot be understated. Absent contemporaneous records, employers that otherwise acted appropriately under the circumstances can face difficulties defending OSHA citations.
