In most instances, an OSHA inspector will arrive at your door unannounced. Among other things, the inspector will present his or her credentials, say why he or she is there, and then ask for your consent to conduct an inspection. The actual inspection and a closing conference will follow, along with the issuance of any citations within 6 months of any violations.
UNPREVENTABLE EMPLOYEE MISCONDUCT DEFENSE
Although many procedural and legal defenses may exist to an OSHA citation, one of the most popular and effective defenses is the unpreventable employee misconduct defense. Critically, however, its success hinges on what you do well before, not after, OSHA shows up. In order to establish this defense, an employer must show that it has:
- Established work rules designed to prevent the violation.
- Adequately communicated these rules to its employees.
- Taken steps to discover violations.
- Effectively enforced the rules when violations have been discovered.
The metrics used to analyze safety performance include lagging indicators such as total recordable incident rate (TRIR) and experience modification rate (EMR). Leading indicators also matter—that is, proactive safety initiatives or reported activities with the goal of preventing accidents before they happen. Examples include conducting new hire safety orientations, daily toolbox talks, and near-miss analyses. One additional lens through which contractors can analyze their safety performance is to determine whether they meet the elements of the unpreventable employee misconduct defense, should a (hypothetical) OSHA citation be issued to the company.
PRACTICAL STEPS
Let’s say a contractor is cited for violating OSHA’s fall protection standard because an employee is not wearing a harness. The first query would be: Did the employer establish work rules designed to prevent the alleged violation? Any work rules should be in writing; be in the form of a rule (using language such as “shall,” “must,” “at all times,” etc.); and relate to the hazards employees are most likely to face on a daily basis (e.g., identified by conducting a job hazard analysis, or JHA).
To meet the second requirement of the unpreventable employee misconduct defense, the rules must be adequately communicated to employees. Even the best work rules do not satisfy this if they languish in a health and safety plan that sits on an office shelf. (This is a bona fide “pet peeve” of OSHA.) Instead, employees need training, they need to acknowledge their receipt and understanding of the work rules, and there should be periodic (read: frequent) reminders. Daily toolbox talks at the start of any work shift—covering those potential hazards employees are most likely to face during that shift—would likely represent a best practice.
The third and fourth elements are sometimes not followed to the letter by contractors, but they should be. Importantly, there must be jobsite inspections to discover violations, and the results of the inspections should be documented. Safety apps that allow safety managers to record their inspection results—and any areas of concern—in real time make documenting the results easier than ever. Also, employees who violate any work rules should be subject to some form of discipline. In the eyes of OSHA, having—but not enforcing—a disciplinary program is basically the same as not having a program at all.
CONCLUSION
When representing a contractor who has been inspected and/or cited by OSHA, much of our initial investigation invariably focuses on the merits of raising the unpreventable employee misconduct defense, including each of the four separate elements of the defense. By considering your compliance with the requirements of the defense—now, before OSHA shows up—you will minimize your potential future OSHA exposure while simultaneously advancing your interests of maintaining a safe worksite. ■
About the Author: Michael Rubin is a partner in the law firm Goldberg Segalla, where he serves as chair of the OSHA and Worksite Safety Practice Group. Michael has counseled clients across multiple industries regarding the defense and management of OSHA inspections and citations. He has on-the-ground experience conducting accident investigations and represents companies at all stages of OSHA enforcement proceedings. He frequently provides safety and risk-avoidance workshops on best practices for minimizing OSHA liability. He can be reached at 716.844.3477 or mrubin@goldbergsegalla.com.
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Modern Contractor Solutions – January 2017
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