April 2016 Q&A

Q: What is an employer’s affirmative defense relative to an OSHA charge and how does it work?

A: In simplified legal terms, an affirmative defense is the act of an accused party putting forth a set of alternative claims or facts. The purpose of the accused party doing this is to mitigate the claim against him, or at least the consequences of the claim, even if the facts of the claim are true. Following is an example of a fairly common scenario in which an affirmative defense is claimed by an employer. OSHA investigates an incident that resulted in an injury to an employee and finds the employer responsible. The agency subsequently issues a citation for violation of a certain rule. Most successful affirmative defenses have shown that the employer’s safety manual rule would have protected the employee if the rule had been followed; that the rule was communicated to the workforce via training; that supervisors and employees were trained to comply with the rule; that supervisors enforced the rule; and that a disciplinary program effectively remediated noncompliance. If the employer successfully puts forth that defense, he can claim the employee violated the rule outside of the control of the employer. The employer showed due diligence and cannot be held responsible for a condition over which he had no control, such as employee misconduct.

In Canada, affirmative defenses can be successfully argued in many jurisdictions. The terminology and process may change, but the premise remains the same. A defense can be established if the employer has developed appropriate safety systems, workers and supervisors have been trained, and employee noncompliance to a safety system has been documented. The provincial Occupational Health and Safety acts use language such as “reasonably practical,” thereby creating a system of strict liability and providing an opportunity for a due diligence defense. An employer can argue that an employee has “removed himself of herself from the course of employment” if he or she has intentionally deviated from the known expectations and conditions of employment.

Q: I recently heard that OSHA charged an employer with violating their own safety rules. Apparently several employees were hospitalized after being injured in a work-related incident. One of the injured employees didn’t even work for the employer that was charged. Can you explain why OSHA would charge this employer?

A: Even without all of the details of this situation, by taking a look at OSHA’s rules and history of citations, we can guess that the employer was likely cited under the General Duty Clause. The clause, found at Section 5(a)(1) of the OSH Act of 1970, states that each employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Safety manuals are good tools for employers to use in communicating their safety procedures to the workforce. A company’s safety manual is also used to establish a foundation for citing employee misconduct if a worker violates a rule. However, you have found one of the issues that can actually work against an employer: creating a safety manual without careful consideration of what is in it. If an employer creates a workplace policy, they must train the workforce and ensure the policy is both achievable and being executed in the workplace as written.

One issue surrounding utilities that use safety manuals occurs when employers create well-intentioned safety rules far outside the need of the workplace, or they develop rules that employees don’t understand or accept. The rules may be ignored by the workforce as too burdensome. If the employer does not act on these issues, they become liable for the conduct of the workforce. If the employer’s safety rules are not effectively communicated to the workforce, and if the employer does not use the written rules to enforce workplace safety, the employer can be charged under the General Duty Clause of the OSH Act. We are aware of at least two instances in the past couple months where OSHA has cited an employer for failing to enforce their own rules. OSHA CPL 02-00-159, the Field Operations Manual (FOM), provides instruction to compliance officers on the conduct and elements necessary for a violation. In Chapter 4, Part III, Section B, titled “Elements of a General Duty Requirement Violation,” part 6(a) states that employer knowledge of a hazard may be demonstrated by a review of company safety rules (see www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-159.pdf). That knowledge is citable under the General Duty Clause.

As to a charge for a non-employee, if an employer’s conduct resulted in injury to an employee of a different employer, they can be cited under the Multi-Employer Citation Policy, CPL 02-00-124.

For our Canadian readers, Occupational Health and Safety in each province can also issue citations based on a company’s safety manual under the appropriate province’s General Duty Clause.

Q: How does OSHA use consensus standards during employer inspections?

A: Consensus standards are publications of associations of industry groups. The industry groups form committees that perform research and formulate production, design, performance or functional standards for equipment or procedures related to their particular industry. In other words, the committees and the industry groups’ voting members reach a consensus regarding the particular standard. OSHA treats consensus standards two ways, either adopting them or referencing them as part of the OSHA standards. In the General Industry standard, you can find the adopted standards listed in 29 CFR 1910.6. The same can be found in the Construction standard in 1926.6.

OSHA indicates the purpose of adopted standards in 1910.6(a)(1), stating that they “have the same force and effect as other standards in this part. Only the mandatory provisions (i.e., provisions containing the word ‘shall’ or other mandatory language) of standards incorporated by reference are adopted as standards under the Occupational Safety and Health Act.” This is easily understood. Appendix G to 1910.269 and Appendix G to 1926 Subpart V – both titled “Reference Documents” – are different. Though they are called reference documents, the compendium of documents are all consensus standards. Coincidentally, we also discuss the role of reference standards in this issue’s “Train the Trainer 101.” Reference standards are included in the OSHA standard as compliance tools for the employer. These standards are not citable, nor do they hold the same weight as an OSHA rule, but there is a good reason to know what they say. The reference standards contain procedural requirements and are used throughout the utility industry. As a result, certain responsibilities are attached. Under the criteria for citations by OSHA is the requirement that the employer knew there was a hazard and that remediation exists. Reference standards are frequently the source of the knowledge that OSHA says meets the criteria for a citation under the General Duty Clause. If the employer has an alternative procedure that protects the employee as well as the reference standard outlines, there is nothing to fear.

The bottom line is that you are expected to follow the mandatory (“shall”) provisions of adopted consensus standards. You don’t have to follow the requirements of a reference standard, but you should know what the requirements are.

Note that in Canada, provincial Occupational Health and Safety (OHS) may adopt various consensus standards – such as those from IEEE, ANSI, CSA and CAN/ULC – either in part or as a whole. OHS authorities can cite and enforce the standards. They can also use the reference materials to support their reasoning but can’t directly cite on such materials.

Do you have a question regarding best practices, work procedures or other utility safety-related topics? If so, please send your inquiries directly to kate@incident-prevention.com. Questions submitted are reviewed and answered by the iP editorial advisory board and other subject matter experts.