Employees do the darnedest things.  But, you’d hope they wouldn’t do them in front of an OSHA inspector.  Isn’t there some way you can defend your company against an OSHA citation and penalty when there is truly no defense to the employee’s misconduct?  Well, there is—the “unpreventable employee misconduct defense” may be of help, but only if you meet the four elements necessary for the defense.  As you will read, these elements require written policies and training to be effective.

The unpreventable employee misconduct defense requires an employer to prove four elements:

  1. It had an established work rule to prevent the violation;
  2. It effectively communicated the rule to its employees;
  3. It took steps to discover violations of its rules; and
  4. It effectively enforced its safety rules and took disciplinary action when it did discover violations.

Established Work Rule

A contractor must adopt work rules consistent with OSHA that are intended to prevent workplace injury.  These rules must clearly proscribe certain conduct and must be communicated to employees making it clear that the rules are mandatory.  Ideally, these rules would be contained in a safety or training manual.

Effectively Communicated to Employees

A contractor must train employees, including the employee whose conduct was in violation of the contractor’s work rules, to be aware of the rules.  The element can easily be met through safety videos, discussions during safety meetings, toolbox talks or other jobsite meetings. Of course, minutes of these meetings, showing the discussion topics and which employees attended, will also have to be maintained so that you can show OSHA you did communicate these rules to employees.

Discovering Violations of Rules

A contractor must insist on safety compliance and have established job inspection routines to be sure the employees are following the company’s work safety rules.  This element can be met through regular audits of the workplace; safety inspections by retained safety consultants; and supervisor walk thrus.  The goal here is to be able to show OSHA that you have regular, random and frequent inspections of job sites to make sure that your safety rules are being followed.

Effective Enforcement of Safety Rules

A contractor must also be able to demonstrate that it has consistently enforced its safety rules when infractions have occurred.  A written disciplinary program would support this element, so long as employees are trained on the program and is consistently applied to safety violations.  The disciplinary program should identify affirmative steps that will be taken should an employee violate a safety rule.

Take Away: The unpreventable employee misconduct defense is a fantastic tool to minimize your OSHA liability, but having a written plan in place,  and documenting the training and utilization of the plan will be crucial.