When faced with an OSHA citation, it is not uncommon for an employer to acknowledge that a rule was violated, accept the citation, pay the penalty, and move on. Often, evidence that a rule was violated is easily obtained by an OSHA inspector. For example, an OSHA inspector may arrive on a jobsite and, before even opening an inspection, photograph an employee working on an elevated surface without fall protection or witness an employee not wearing the proper personal protective equipment (PPE).

An employer may see the inspector’s photos and think this is an open-and-shut case and accept the citation. Depending on the employer’s circumstances, that can be a mistake. While the penalties for a single citation may be relatively low, those penalties can multiply quickly for repeat violations. Multiple OSHA citations on a company’s record may make it difficult for the company to bid on certain types of work or maintain certain customer contracts.

Moreover, accepting and paying a citation simply because a rule was violated ignores the other elements that OSHA must prove to issue a citation. These elements include the applicability of the cited code, whether the violation created a hazardous condition, whether an employee was exposed to that hazardous condition and, finally, employer knowledge. A citation cannot be upheld when just one of those elements is missing. In addition to the elements that OSHA must prove, an employer may attempt to prove certain defenses even if each element is present. One of those defenses is the unpreventable employee misconduct defense.

For employers with robust safety and health programs, the unpreventable employee misconduct defense can be an extremely useful tool if an employee goes rogue and is caught by an OSHA inspector. Even companies deeply committed to safety might see an employee forget to put a tag on a piece of de-energized equipment or enter a trench without adequate shoring. In these instances, the employer will make a plea to the inspector that it did everything in its power to avoid the violation and, for that reason alone, should not be issued a citation. But, while inspectors appreciate an employer’s commitment to safety, those pleas alone will not establish the unpreventable employee misconduct defense.

An employer asserting an unpreventable employee misconduct defense must prove that it has:

1, established work rules designed to prevent the violation,
2, adequately communicated these rules to its employees,
3, taken steps to discover violations, and
4, effectively enforced the rules when violations have been discovered.

To prove element no. 1, an employer must have a specific rule or policy that prohibits the conduct that constitutes the alleged violation. Typically, this takes the form of a written accident prevention program or a job specific safety plan that is easily accessible to all employees. Employers must train employees on those rules and, to meet the second element of the defense, be able to prove that the employee who committed the violation received that training. Such evidence may consist of sign-in sheets for each safety meeting listing the date, covered topics, and employees in attendance.

It is common that an employer, although able to prove the first two elements, lacks documentation sufficient to establish the latter two elements. Taking steps to discover violations may be accomplished through regular safety audits of the workplace that are designed to discover safety violations. For purposes of the unpreventable employee misconduct defense, it can be to the employer’s benefit if the audit process identifies violations, which the employer corrects. Not only does this create a safer workplace, but evidence that some violations were found and corrected may be more credible to an OSHA inspector than suggesting that no issues were identified.

Finally, an employer must show that it effectively enforced the rules when violations were discovered. If a company has a written discipline program that spells out the level of discipline for each violation, it may undermine its showing by deviating from that program – for example, issuing multiple verbal warnings even though the discipline program calls for time off without pay. Additionally, while a verbal warning can be an acceptable form of discipline for a first violation, an employer that may wish to assert an unpreventable employee misconduct defense in the future should still document the incident and the warning provided to the employee, as it would with other forms of discipline. While the preceding actions address the unpreventable employee misconduct defense, the elements of the defense also lend to establishing a framework for an effective safety program – the primary benefit of which means a safer and more efficient workplace. They may also have the unintended consequence of helping an employer avoid an OSHA citation.

This column is intended to provide readers with general information and not legal advice. Consult professional counsel for help regarding specific situations.

Column first appeared in the Oregon Daily Journal of Commerce on March 18, 2022.

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