In this Newsletter, we discuss as follows: ·   OSHA Citations and Penalties following a Serious Injury ·   Defense:  Independent Employee Act Defense (elements of) available to employer to seek relief from citation and penalties (1980 case). ·   Elements of California Illness & Injury Prevention (IIPP) Program www.dir.ca.gov/title8/3203.html ·   Changes to CA IIPP regulation (Section 3203 (a)(8)(A-F))

BACKGROUND:  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 of the employee that had caused the injury was an independent act of the employee and hence the employer should not be held liable.  (Ref.: Mercury Service, Inc. Docket No, 77-R4D1-1133).    

We must note that this case is not new but decades old.  We bring this to your attention because many employers do not have an enforcement policy for employees violating safety rules or policies.  Furthermore, many of these violations by employees go undocumented.  Enforcement and documentation may not only improve your safety record but also defend you, should a serious injury occur on your premises.

In order to prevail on this affirmative defense, which must be pled on the appeal to the California Occupational Safety & Health Appeals Board (https://www.dir.ca.gov/oshab/oshab.html) following the citation, an employer in California must prove and prevail on 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 employers’ claim on this issue.  Interestingly, OSHA looked at all the safety training completed by the technician.  CSI’s advice is to keep your monthly safety training handy.
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 presented 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.

Changes to the IIPP program in 2020 require that each employee have access to the IIPP.  We amended the IIPP and posted it on the CSI employee training portal.  A memo regarding the availability and location of the IIPP may be posted on the Employee Notice Board.  Elements of the IIPP are as follows:

• Responsibility
• Compliance
• Communication
• Hazard Assessment
• Accident/Exposure Investigation
• Hazard Correction
• Training and Instruction
• Recordkeeping
• 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 as the injuries were virtually non-existent and one was never deemed necessary.  The employer lost on this element as no earlier enforcement/disciplinary action had been documented.
• Employer Effectively Enforces the Safety Program:  The written disciplinary policy should be implemented.  An occasional write-up of an employee violating safety rules helps satisfy this element.  Examples include employees not wearing safety glasses when working on an automobile or not wearing a seat belt when operating a forklift.  In the case at hand, OSHA held that the enforcement element of the safety program had “no teeth” and that the safety program had not been enforced.  Employer lost this argument and the citation stood.
• 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.  An example is that the employee knows the temperature and pressure inside a container.  A gauge showing temperature and pressure inside a vessel indicates to the employee the existing temperature and pressure and hence the employee is deemed to have knowledge.  The employer 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.  Furthermore, such policies should be enforced consistently without discrimination.  A safety counseling form is available in the Black Box.  Disciplining employees is also a labor law issue and the advice of qualified counsel should be obtained.

OTHER STATES:  The case law cited above is California specific and does not carry weight in federal jurisdiction or other states.  The employers in other states may ask the tribunal to consider the Mercury case cited above as a persuasive matter.  

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 in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years.  Sam is Certified Safety Professional (No. 16515) certified by National Board of Certified Safety Professionals. 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 www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.