Imagine these scenarios: An employee falls 15 feet off a building or a worker sustains a head injury but was not wearing any personal protective equipment (PPE). As an employer, not only are you concerned about the well-being of the employee, you are also naturally concerned about the Occupational Safety and Health Administration (OSHA) showing up to your workplace ready to inspect and possibly issue a citation.
As experienced Alabama OSHA attorneys, we are sure you recognize the gravity of the situation. As a matter of fact, you are not disputing the unfortunate fall, nor are you disputing whether or not the employee was wearing PPE. You are concerned about how to defend yourself when you know that your workplace runs a strict safety policy. So, do you have a defense? We will discuss this and more in this section and part two of our article.
The Employee Misconduct Defense
You may have heard of the employee misconduct defense. Many employers attempt to use the defense when accidents happen on their jobsite. However, this is not a defense you can just throw around without any proof. The employee misconduct defense is an affirmative defense where you are placing the accident blame on the employee and you must prove several elements in order for it to prevail.
View Your Company From OSHA’s Perspective
Using the employee misconduct defense means that you have to think like a true safety professional and like an OSHA investigator. Ask yourself these questions:
- What is my company’s safety culture like (i.e., zero-tolerance policy)?
- Do we encourage and give incentives for reducing and/or reporting incidents?
- Do we have a designated, competent safety officer?
- Does my company have comprehensive safety plans and procedures?
- Are your internal plans/policies clear, consistent, and tailored for different departments?
- Do you hold regular safety meetings and training?
- Does the company have a virtually clean safety history (i.e., little to no past violations)?
- Can You Claim Employee Misconduct?
If after evaluating your own company’s safety practices and policies, you are still left wondering whether you can be cited for the accident, the answer is yes. Successful use of the employee misconduct defense requires more than your own glowing opinion of your organization. You must show that you have:
- Established work rules to prevent safety violations
- Communicated established rules to your employees
- Put methods in place to identify violations
- Enforced established rules upon violation discovery
Taking defensible disciplinary action against an employee requires that you ensure that company safety policies are specific, clear, and OSHA compliant.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.