| In this newsletter, we discuss:– 1.OSHA Citations and Appeals. 2.Defense: Elements of Independent Employee Act Defense for employers to seek relief from citations and penalties (1977 Mercury Case). 3.Elements of California Illness & Injury Prevention Program (IIPP) California Code of Regulations. |
Case. 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. The employee had partially amputated a finger while diagnosing the engine on an automobile. This happened to an auto dealer in Los Angeles. What may the employer do?
File an appeal to the California OSHA Board (“OSHAB”) using the OSHAB Appeal Form within 15 working days from receipt of a citation to avoid automatic dismissal. If an appeal is filed after this time, the appeals board may accept it only upon showing good cause for the late filing. “Good cause” generally means circumstances beyond one’s control that could not have been reasonably anticipated. The appeal form lists multiple grounds and defenses.
Independent Employee Act Defense. In their defense, the employer in the case above pled that the act 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). This case is 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 violations by employees go undocumented. A write-up on a safety violation places the employee and coworkers on notice about the safety policy and acceptable safety procedures at the facility. Repeat violators can expect management to escalate enforcement.
Enforcement and documentation improve your safety record and defends you, should a “serious” injury occur on your premises.
In order to prevail on this affirmative defense, which must be pleaded on the appeal to the OSHAB (https://www.dir.ca.gov/oshab/oshab.html) immediately following the citation, an employer in California must prove and prevail on all five of the following elements:
1. Employee was Trained and Experienced 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. OSHAB accepted the employers’ claim on this issue. Interestingly, OSHAB looked at all the safety training completed by the technician. CSI’s advice is to keep your monthly safety training accessible to all employees and keep records of all training.
Employer Has a Well Devised Safety Program. Employer must prove that a well-devised safety program is in effect, and that it includes employee training for their job assignment. The employer presented its IIPP, and the training based on the service manual from the automobile manufacturer relevant to the service operations being done when the injury occurred. OSHAB also accepted this element of the defense. Elements of the IIPP are:
| ResponsibilityComplianceCommunicationHazard Assessment | Accident/Exposure InvestigationHazard CorrectionTraining and InstructionRecordkeeping |
2. Policy of Sanctions Against Employees Violating Safety Program. Employer must have a written policy of sanctions against employees violating safety rules or involved in unsafe acts. The employer stated that one had never been required as injuries were virtually non-existent, and one was never deemed necessary. The employer lost on this ground as no policy existed.
3. Employer Effectively Enforces the Safety Program. Employer must implement the written disciplinary policy. 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, OSHAB held that the enforcement element of the safety program had “no teeth” and that safe practices had not been enforced. The employer lost on this ground as no earlier enforcement or disciplinary action had been documented, and the citation stood.
4. Employee Caused the Safety Infraction Which He or She Knew was Contra to Employer’s Safety Requirement. 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; 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 for servicing automobiles and that technicians reference repeatedly outlined safety procedures including relevant safety issues.
Successful Safety Enforcement Examples
- Employee Drops an Automobile Off a Hoist. Employer terminated the employee for damage caused to the truck. We argued that a truck falling off a hoist is a seriously unsafe act and hence employers’ safety enforcement is viable and operational.
- Employee Gets a DUI. Employee was terminated following a DUI. Employer pled that requiring employees to be free of a DUI violation was an enforcement mechanism to enhance safety.
- Employees Not Wearing Safety Glasses. Employer was enforcing safety glasses policy by writing-up employees who were working on autos in the shop policy without eye protection.
In the case at hand, where the employee amputated part of his finger, the employer lost the appeal for not having a policy and not enforcing sanctions against employees behaving in an unsafe manner. Merely having a written policy without a Write-Up is not sufficient. A written IIPP where the facility is inspected on a periodic basis and hazards corrected is not enough. Furthermore, the policies should be enforced consistently and without discrimination. A safety counseling form is available on our eLearn platform. Since disciplining employees is a labor law issue, the advice of qualified counsel must be obtained.
Other States. The case law cited above is specific to California and does not carry weight in federal jurisdiction or other states. Employers elsewhere may ask the tribunal to consider the Mercury case cited above as persuasive.
DISCLAIMER:The contents of this newsletter are 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 38 years. Sam is a Certified Safety Professional (No. 16515) certified by the 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).
Your comments/questions are always welcome. Please send them to sam@cellyservices.com.
Resources
CSI newsletters may be accessed at www.epaoshablog.com[OSHAB%20Appeal%20Form]OSHAB Appeal Form at https://www.dir.ca.gov/oshab/appealform.pdf[OSHAB] OSHAB at https://www.dir.ca.gov/oshab/oshab.html
IIPP California Code of Regulations at www.dir.ca.gov/title8/3203.html
Cited Mercury Case at https://www.dir.ca.gov/oshab/Decisions/Precedential/77-1133-Mercury-Service-DAR.pdf
Celly Services Inc. 