An employee is seriously injured on the job and the employer calls OSHA as part of notification requirements. OSHA investigates and slaps a $12,000 fine against the employer. This happened to an automobile dealer in Los Angeles. The employee had partially amputated a finger while diagnosing the engine on an automobile. In their defense, the employer pled that the act that caused the injury was an independent act of the employee and the employer should not be held liable.

In order to prevail on this affirmative defense, which must be pled on the appeal following the citation, an employer in California must prove all five elements as follows:

1. The Employee was Experienced and Trained on the Job Being Performed: In the case at hand, the employee was a diagnostic specialist on automobiles and the employer presented 79 training certifications from the automobile manufacturer out of which 30 were on engine diagnostic and performance checks. Training certification from a nationally recognized body was also presented. OSHA accepted the employer’s claim on this issue. Interestingly, OSHA looked at all the safety training completed by the technician. CSI recommends that you to save all your safety and other work related training in files on site.

2. Employer Has A Well Devised Safety Program: Employer must prove that a well-devised safety program, which includes employee training for their particular job assignment, is in effect. The employer presents its IIPP Program and training from the service manual from the automobile manufacturer relevant to the service operations being done when the injury occurred. OSHA accepted this element of the defense as well. The requirements of IIPP program are as follows:

·     Identify the person or persons with authority and responsibility for implementing the Program.

·     Include a system for ensuring that employees comply with safe and healthy work practices. Substantial compliance with this provision includes recognition of employees who follow safe and healthful work practices, training and retraining programs, disciplinary actions, or any other such means that ensures employee compliance with safe and healthful work practices.

·     Include a system for communicating with employees in a form readily understandable by all affected employees on matters relating to occupational safety and health, including provisions designed to encourage employees to inform the employer of hazards at the worksite without fear of reprisal. Substantial compliance with this provision includes meetings, training programs, posting, written communications, a system of anonymous notification by employees about hazards, labor/management safety and health committees, or any other means that ensures communication with employees.

·     Include procedures for identifying and evaluating work place hazards including scheduled periodic inspections to identify unsafe conditions and work practices. Inspections shall be made to identify and evaluate hazards:

·     When the Program is first established;

·     Whenever new substances, processes, procedures, or equipment are introduced to the workplace that represent a new occupational safety and health hazard; and

·     Whenever the employer is made aware of a new or previously unrecognized hazard.

·     Include a procedure to investigate occupational injury or occupational illness.

·     Include methods and/or procedures for correcting unsafe or unhealthy conditions, work practices and work procedures in a timely manner based on the severity of the hazard:

·     When observed or discovered; and,

·     When an imminent hazard exists which cannot be immediately abated without endangering employee(s) and/or property, remove all exposed personnel from the area except those necessary to correct the existing condition. Employees necessary to correct the hazardous condition shall be provided the necessary safeguards.

·     Provide relevant training and instruction

·     When the program is first established;

·     To all new employees;

·     To all employees given new job assignments for which training has not previously been received;

·     Whenever new substances, processes, procedures or equipment are introduced to the workplace and represent a new hazard;

·     Whenever the employer is made aware of a new or previously unrecognized hazard; and,

·     For supervisors to familiarize themselves with the safety and health hazards to which employees under their immediate direction and control may be exposed.

·     Records of the steps taken to implement and maintain the Program shall include:

·     Records of scheduled and periodic inspections required by subsection above to identify unsafe conditions and work practices, including person(s) conducting the inspection, the unsafe conditions and work practices that have been identified and action taken to correct the identified unsafe conditions and work practices. These records shall be maintained for at least one (1) year; and

·     Documentation of safety and health training required as above should be maintained for each employee, including employee name or other identifier, training dates, type(s) of training, and training providers. This documentation shall be maintained for at least one (1) year. CSI recommends that you keep safety training documents well past the date of employment. Contact employment counsel on employee training retention period.

3. Policy of Sanctions Against Employees Violating Safety Program: The employer must have a policy of sanctions against employees violating safety rules or involved in unsafe acts. The employer stated that one had never been required or deemed necessary as the injuries were virtually non-existent. The employer lost on this element as no earlier enforcement/disciplinary action had been documented.

4. Employer Effectively Enforces the Safety Program: The written disciplinary policy should be implemented. OSHA held that the enforcement element of the safety program had “no teeth” and that the safety program had not been enforced.

5. Employee Caused the Safety Infraction Which He or She Knew was Contra to Employer’s Safety Requirement: The employer must prove that the employee had knowledge of this safety requirement, violation of which caused the injury. The employees pled that the safety rules, acknowledged and signed by the employee were available. Also, the shop manual (to service automobiles), which technicians reference repeatedly had outlined the safety procedures including relevant safety issues.

In summary, the employer lost for not having a policy enforcing sanctions against employees violating the safety program. Written policy without implementation is not sufficient either. A written IIPP where the facility is inspected on a periodic basis and hazards corrected is not enough. A “Write-Up Policy” is needed. Further, such policies should be enforced consistently without discrimination. A safety disciplinary form is available in the Black Box. Disciplining employees is also a labor law issue and the employer should seek advice of qualified counsel. (Ref.: Mercury Service, Inc. Docket No, 77-R4D1-1133)

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.  Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at http://www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.