printech,June,2004Employee Misconduct Defense For OSHA Citation

printech, June, 2004
Employee Misconduct Defense For OSHA Citation


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From: Gary Jones (
rillig@state.pa.us)
Date: Mon, 28 Jun 2004 12:33:06
FYI - From JJKeller's Safety Clicks eNews at www.jjkeller.com.
Copyright 2004, J. J. Keller & Associates, Inc.

Is it really preventable?

One defense against OSHA citations is to show unpreventable employee misconduct. To establish unpreventable employee misconduct, an employer must prove that it has:
established work rules designed to prevent the violation,
adequately communicated these work rules to its employees, taken steps to discover violations, and
effectively enforced the rules when violations are discovered.

The action of the employee must represent a departure from a work rule that the employer has uniformly and effectively communicated and enforced. If you are aware an employee is not following safety procedures, yet you take no steps to prevent this action in the future, you may have a hard time using the âÄœunpreventable misconductâÄù defense against OSHA citations.

How an OSHA inspector looks at the situation

During an OSHA inspection, compliance officers also are instructed to keep the "unpreventable employee misconduct" issue in mind. To do this, the officers will look to see if a violative condition was:
Unknown to the employer; and
In violation of an adequate work rule which was effectively communicated and uniformly enforced.

Example: An unguarded table saw is observed during an OSHA inspection. The saw, however, has a guard which is reattached while the OSHA inspector watches. Facts that the inspector may look at (and document) include:
Who removed the guard and why?
Did the employer know that the guard had been removed?
How long or how often had the saw been used without guards?
Did the employer have a work rule that the saw guards not be removed?
How was the work rule communicated?
Was the work rule enforced?



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