The "Unpreventable Employee Misconduct" Defense
Most good health and safety managers will tell you that “All accidents are preventable.” As a lawyer who often defends employers in OSHA proceedings, I completely agree. And yet, accidents still happen and employers do get cited because some employee did something that he was not supposed to do.
The unpreventable employee misconduct defense might seem to run counter to the principle that all accidents are preventable. But just last week, I was reminded how effective that defense can be in an OSHA proceeding when your client has taken active steps to prevent accidents. So I thought that this might be a good time to remind everyone what your lawyer would need to demonstrate in order to prove unpreventable employee misconduct in front of an administrative law judge.
Most employers have met the first element of the defense by establishing work rules adequate to prevent the violation. But can you demonstrate that you effectively communicate your rules to your employees? Sure, you gave your employees a copy of your safety rules during their initial orientation, but what have you done to make sure that they read and understood those rules? How frequently did you train your employees? Was the training interactive? Were employees quizzed? Were employees shown how the training applied to their particular job? Having a Lock out/Tag Policy in your safety manual is fine, but did someone actually demonstrate how it is implemented in the field?
An employer must also be able to show that it developed methods for discovering violations of work rules. In my trial last week, for example, my client was able to show that its safety manager regularly visited the worksites to ensure that rules were being followed. In order to ensure that employees completed job safety analyses before doing a job – which had not been done in this case – the employer described how it had issued tablets to employees so that the employer could monitor in real time when the documentation was being completed.
In order to avail itself of the unpreventable employee misconduct defense, an employer must be able to demonstrate that it has consistently enforced its safety policies by disciplining employees when violations have been discovered. For example, if the company has been cited because an employee was not wearing required PPE (Personal Protective Equipment), the employer should be able to provide testimony and documentary evidence that employees are regularly disciplined when not wearing their PPE.
The real benefit of doing all of these things, however, is not that you will be able to avoid liability for an OSHA violation, but that you will prevent an accident from happening in the first place.
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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.