Safety and OSHA News

Off-road vehicle injury: Will OSHA fine stick, or was this unpreventable misconduct?

An employee blatantly violates one of your safety rules and causes an injury. Should you have to pay an OSHA fine for that? 

Cal/OSHA fined Par Electrical Contractors Inc. of Escondido in connection with an employee who was injured while riding in a small off-road vehicle (a Polaris Ranger Utility Vehicle). The violation: failure to ensure machinery or equipment is operated under safe speeds.

Par had a rule that the vehicles weren’t to be driven any faster than 15 m.p.h.

Cal/OSHA and Par agree that former employee Elmer Diaz was driving the vehicle at almost twice that speed when it overturned, injuring another employee, Jasen Hendricks, who was a passenger.

But Par argued that it shouldn’t be fined because this was a case of an independent employee act (referred to in federal OSHA cases as unpreventable employee misconduct.)

To show this was a case of an independent employee act, Par had to prove:

  1. The employee was experienced in the job being performed.
  2. The employer has a well-devised safety program which includes training employees in matters of safety respective to their particular job assignments.
  3. The employer effectively enforces the safety program.
  4. The employer has a policy of sanctions against employees who violate the safety program.
  5. The employee caused a safety infraction which he or she knew was contrary to the employer’s safety requirements.

The California Occupational Safety and Health Appeals Board found:

  1. Diaz had been working at the site for four months before the incident occurred and had driven the vehicle, which drives much like a car, enough to be considered experienced.
  2. Par’s safety program included: requiring employees to review and acknowledge a safety code of conduct; successful completion of a written safety exam; instruction on its zero tolerance policy for unsafe acts and horseplay; regular training on safety topics.
  3. Par promptly and thoroughly investigated the incident involving the vehicle. The company also provided evidence of regular safety inspections.
  4. Par promptly dismissed Diaz following the incident.
  5. It was well established Diaz was experienced in driving the vehicle, was repeatedly instructed (along with all workers) not to drive it above 15 m.p.h. and acknowledged the company’s zero tolerance policy.

Cal/OSHA tried to rebut Par’s argument on the fourth point, noting there was no discipline against Hendricks, thereby calling Par’s enforcement of its rules into question.

But the board found disciplining Hendricks wasn’t necessary to show Par had a policy of sanctions for employees who violate safety rules.

The appeals board threw out the fine against Par. It found the company proved this was a case of an independent employee act (aka unpreventable employee misconduct).

What do you think about the appeals board’s decision? Let us know in the comments.

(In the matter of the appeal of Par Electrical Contractors Inc., CA Occupational Safety and Health Appeals Board, Docket 13-R3D3-3174, 10/22/15)

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