OSHA regulations are promulgated under the Occupational Safety and Health Act of 1970, as amended. In accordance with the regulations, employers are obligated to provide both safe work and safe workplaces. They must adhere to requirements for training, supervision, discipline, retraining, personnel protection, job planning and job control.
Section 5 of the OSH Act – also known as the General Duty Clause – requires both employers and employees to do their part to adhere to OSHA regulations. Although present statutes do not allow OSHA to fine employees who violate regulations, employees are required to comply by Section 5(b) of the OSH Act, which states, “Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”
Most of the language of early OSHA regulations is phrased as “the employer shall not allow employees to” perform specified acts. However, later regulations are written in terms of “employees shall not …” or “employees shall …” Clearly, under Section 5(b) of the OSH Act, employees must adhere to OSHA regulations regardless of how they are phrased. For example, employers must train equipment operators to keep equipment 10 or more feet away from power lines, and their employees must control equipment to keep it away from power lines.
OSHA Directive to Compliance Officers
OSHA has created a directive to compliance officers – CPL 02-00-124 – to explain its policy about multiemployer work sites. The directive also provides guidance to the officers about how to determine both if an employer fits one or more of the categories of employers that are potentially citable and if the employer has performed its required duties and should not be cited. This can be found on the OSHA website (www.osha.gov) by typing “Multi-Employer Citation Policy” into the search box.
The OSHA Multi-Employer Citation Policy classifies employers as one or more of the following: a creating employer; an exposing employer; a correcting employer; and/or a controlling employer. Each type of employer has duties that it must perform to fulfill its obligations under OSHA.
Defense of an OSHA Citation
Appellate courts have held that “[t]he OSH Act requires that an employer do everything reasonably within its power to ensure that its personnel do not violate safety standards. But if an employer lives up to that billing and an employee nonetheless fails to use proper equipment or otherwise ignores firmly established safety measures, it seems unfair to hold the employer liable.”
The OSH Review Commission – whose mission is to provide fair and timely adjudication of workplace safety and health disputes between the U.S. Department of Labor and employers – recognizes that an affirmative defense against an OSHA citation is unpreventable employee misconduct. To successfully vacate a citation, the employer must be able to demonstrate that:
1. The employer has established a work rule to prevent the reckless behavior or unsafe condition from occurring;
2. The employer adequately communicated the rule to its employees;
3. The employer took steps to discover incidents of noncompliance; and
4. The employer effectively enforced the rule whenever employees transgressed it.
Following is a more in-depth review of each of these elements of proof.
First Element of Proof: Adequate Work Rule
Work safety rules must be clear and specific as to the conditions under which each rule is to be applied and how the mandated action is to be performed.
Second Element of Proof: Adequate Communication of Rule
OSHA 29 CFR 1926.21(b)(2) requires employers to “instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.” Note that the training must include instruction on (1) recognition and avoidance of hazards and (2) applicable OSHA regulations.
This training is not limited to training for hazards expressly identified in OSHA regulations. Hazard identification and avoidance training must be both (1) specific to the hazards that might be normally encountered or reasonably anticipated while performing expected duties and (2) broad enough to aid employees in identifying and avoiding unexpected hazards encountered in the workplace.
The OSH Review Commission stated that “[u]nder § 1926.21(b)(2), an employer must instruct its employees in the recognition and avoidance of those hazards of which a reasonably prudent employer would have been aware.” Capform, Inc., 19 OSHC (BNA) 1374, 1376 (OSHRC 2001), aff’d, 34 Fed Appx. 152 (5th Cir. 2002).
Where employees who fluently speak languages other than English are to be trained, or where employees require training due to little experience with the particular activities, some appropriate method or methods of effectively communicating the necessary information must be used.
It must be shown that the employee or employees involved in the misconduct effectively understood the correct actions that were required of them under the circumstances and still failed to follow the employer’s work safety rules. If the employee or employees involved are dead or otherwise unavailable, the working knowledge of employees with similar duties and experience may be sufficient.
Testing after training to determine the actual understanding of individual employees, as well as to discover needs for retraining personnel or changes in training, can be effective in assuring that the training appropriately meets the needs of the particular employees. Simply attending a session may be appropriate for many subjects, but testing may be required for more complex conditions or actions.
Daily safety meetings are an important part of the process needed to identify and avoid hazards at construction work sites. These tailgate sessions usually are brief, but they communicate to each crew member required information about topics such as hazards to be avoided at the work sites and the methods, tools and positions that will be used to safely perform the work. For duties with many steps or changing conditions, additional tailgate sessions may be required during the day. If work is to be performed at multiple sites, a tailgate session at each site usually is required to assure that there are no hazards found or differing conditions at each site that require different work procedures, equipment or tools.
Mere provision of a safety manual to each employee is not enough. The safety rules must be discussed appropriately with employees to assure that they understand the rules and can effectively implement them.
Third Element of Proof: Steps Taken to Discover Noncompliance
Part of effective supervision is observation and confirmation of employee work habits. The employer must demonstrate that it has – and has an effective system for obtaining – the knowledge that its employees are correctly applying its work safety rules. For many routine work elements, regular observation of work habits for conformance with safe work rules is all that is necessary. For more complex or work site-specific duties, or duties performed less often, periodic retraining, testing or both may be appropriate.
Fourth Element of Proof: Effective Enforcement
One of the greatest problems in some work environments is the reluctance of a foreman with direct supervision over employees to issue safety warnings and follow through with discipline or retraining. The actions or inactions of supervisory personnel are generally imputed to employers. Effective adherence to safe work practices by crew leadership is a necessary requirement for safe crew work. However, individual crew members also have a responsibility to meet the rules and should not be allowed to let observed safety violations by other crew members slide by without comment to appropriate personnel. The actions or inactions of any crew member can create a hazardous condition for others.
The employer must be able to demonstrate by records that employees have been written up, suspended or otherwise disciplined. The discipline program must consist of increasingly harsher discipline measures such as verbal warnings, written warnings, work suspension and termination.
Retraining programs often are key elements in effective enforcement of the rules by the employer. In some cases, individual retraining may be appropriate; in others, group retraining may be the best option.
Accident Analysis and ANSI Guidance
The OSHA Multi-Employer Citation Policy separates employers into classes based upon their expected duties, knowledge and responsibilities, and assigns appropriate responsibilities to these classes for protection of employees on a work site. You can use the same system to effectively analyze any accident. If the employer has fulfilled his responsibilities to train, supervise, equip and inform the employee about the related safety hazards, and an accident still occurs, it is the result of employee misconduct.
ANSI A10.33, titled “ Safety and Health Program Requirements for Multi-Employer Projects – American National Standard for Construction and Demolition Operations,” was developed to help employers understand how to meet OSHA requirements. This is a genuinely helpful document.
Editor’s Note: The contents of this article are copyrighted by Clapp Research Inc. and used with permission.
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