When organizations place their employees in danger by violating safety regulations, they are subject to heavy fines and legal action, but what happens when an incident occurs due to an employee not following safety rules without the employer’s knowledge? Does the organization still pay worker’s comp, are they still fined for the violation, and do they have any recourse? Unfortunately, because every incident involves unique circumstances, there is no clear answer to these questions. However, it is important that we understand the rights of all parties involved and what steps employers can and should take before and after such incidents occur.
Workplace safety is a joint responsibility of the company and its individual staff members. When employees do not comply with written and enforced safety rules, they are exhibiting high risk safety behaviors that create unnecessary hazards for themselves and their coworkers. That said, employers must be extremely cautious about disciplining workers for violating safety rules.
OSHA tends to side with employees when safety incidents occur, and have implemented policies that could be troublesome for organizations in this circumstance. Specifically, section 11(c) of the OSH Act prohibits employers from discriminating against employees for reporting injuries or illnesses. To be clear, this is a good thing.
However, David Fairfax, OSHA’s Deputy Assistant Secretary, stated in a memo concerning this policy that some employers may “attempt to use a work rule as a pretext for discrimination against a worker who reports an injury. A careful investigation is needed.” Unfortunately, situations like this have arisen.
For example, the Department of Labor sued Southwestern Bell Telephone Company (SWB) in 2014 on behalf of four employees who received disciplinary action and unsatisfactory performance appraisals for reporting workplace injuries. SWB alleged that each employee violated a corporate workplace safety standard, but OSHA’s investigation found that the disciplinary actions were a result of the workers reporting their injuries.
The other argument here is that discipline in these cases can discourage workers from filing legitimate claims when they are injured for reasons out of their control. Therefore, in order for an organization to take defensible disciplinary actions against an employee who violates a safety rule, management should:
Provide thorough safety training to all employees, and be sure that all safety rules are specific, clear, and follow OSHA guidelines
Incorporate a disciplinary policy into the safety program, and be sure that employees understand it
Clearly communicate what he/she did wrong and what disciplinary actions will be taken if an employee violates a safety rule,
Utilize progressively more severe disciplinary measures to deter repeat violations
Document everything concerning a violation and the disciplinary action taken
In the event that an employee sues the organization for discrimination after being disciplined for injuring him/herself while violating a safety rule, or if the organization is cited by OSHA for the incident, the organization may use the Unforeseeable Employee Misconduct Defense. In doing so, the employer must prove that they:
Have established work rules designed to prevent safety violations
Have adequately communicated the rules to employees (i.e., safety training)
Have taken steps to discover violations
Have effectively enforced the rules when violations are discovered
Keep in mind that according to OSHA, this defense may not be applicable if the employee who has violated the safety rule is a supervisor because that person is considered part of management. Furthermore, the policy states that only “legitimate safety and health rules” should be enforced, which opens up the potential for employee claims concerning whether the discipline was proportional to the violation, whether enforcement was consistently applied to other employees, and whether it was based on a vague rule.
Remember that “discipline” is not always synonymous with “punishment”. The goal is not to catch employees committing safety infractions so that we can suspend or fire them. Rather we should be constantly seeking to improve employee safety behaviors and minimize safety blind spots, using rule breaking situations as teaching moments to improve overall safety at the worksite.