Safety professionals know that simply having safety rules isn’t enough to keep workers safe. Those rules must be clear and properly enforced to make sure workers take them seriously.
A recent decision from an administrative law judge with the Occupational Safety and Health Review Commission (OSHRC) shows that a worker’s electrocution was the result of an ambiguous safety rule and a poorly enforced disciplinary system.
JHA called for use of insulated PPE
Entergy New Orleans LLC is a utility company that produces and distributes electric power to customers in Arkansas, Louisiana, Mississippi and Texas.
On June 23, 2021, an Entergy crew was sent to a New Orleans worksite to remove rotten cross arms from utility poles and replace them with secondary cross arms, along with some other work that would expose them to electrical hazards.
The crew consisted of a supervisor, who was also the designated observer on the ground, and three linemen. One of the linemen was the qualified employee overseeing the work of the other two, who were trainees, while the three of them were working from buckets hoisted by material handler trucks.
Before beginning their work, the crew reviewed the job hazard analysis (JHA) for the assignment. They noted that the JHA called for the use of:
- insulated gloves, harnesses and other PPE
- cover-ups and insulated blankets to use on energized lines, and
- proper insulated equipment and tools for use around electrical hazards.
Electrocuted worker didn’t put insulated sleeves back on
The job itself was complicated, involving nine different main wires and two smaller lateral lines.
The three linemen initially wore rubber gloves and sleeves when they went up in their buckets and covered the live power lines with rubber blankets and cover-ups. Once the live power lines were covered, all of the linemen removed their sleeves.
One of the trainees piloted his bucket to the ground to retrieve some equipment that would be used to secure an insulated blanket to one of the poles. However, the lineman who was the qualified employee and the other trainee didn’t wait for their co-worker to return with the equipment.
Instead, they decided to use tape to secure the blanket around the pole. They removed an insulated blanket from one of the exposed power lines and put it on the pole, but they failed to put their insulated rubber sleeves back on as they continued to work around the exposed line.
As the trainee was taping the insulated blanket to the pole, he contacted the exposed power line and collapsed into his bucket. The line who was the qualified employee attempted to get the trainee’s attention by calling to him and knocking on his bucket, but there was no response.
The qualified employee placed the insulated blanket back onto the exposed power line before calling for help. On the ground, the supervisor was unable to lower the trainee’s bucket, which was between two stacked live wires. At this point, the other trainee arrived with the equipment and saw what happened. He hopped into his bucket and piloted it up to the other trainee’s bucket, climbed in and lowered it to the ground.
The trainee who touched the live power line later died from his injuries.
OSHA issues citation
Both Entergy and OSHA investigated the incident. The qualified employee told investigators that the trainee passed out in his bucket. The company eventually reviewed footage captured by a residential security camera and found out that the qualified employee re-covered the live power line before he called for help. He was fired for violating company safety rules and lying during an investigation.
The company also determined that the supervisor failed to follow numerous safety guidelines which contributed to a workplace fatality. He later testified that he resigned before he could be fired.
OSHA cited Entergy for a serious violation of 1910.269(l)(4)(i)(A) when its employees installed insulation near live high-voltage power lines without the use of rubber insulating sleeves.
Company claims unpreventable employee misconduct
In court, Entergy claimed that the incident occurred due to unpreventable employee misconduct. The unpreventable employee misconduct defense requires a company to show that it has:
- established work rules designed to prevent the violation
- adequately communicated these rules to its employees
- taken steps to discover violations, and
- effectively enforced the rules when violations were discovered.
OSHA argued that Entergy failed to prove that it adequately communicated its safety rules and effectively enforced those rules when it discovered violations.
The OSHRC administrative law judge agreed with OSHA and affirmed the citation and $13,653 fine.
Worker exempted from training due to previous experience
First, the judge addressed the safety rule in question. Entergy’s Safe Work Rules Manual clearly states that “workers are permitted and able to work safely without sleeves if there is only one exposed energized potential in the work area, but they must wear gloves and sleeves if there is more than one exposed potential in the work area.”
However, this rule as stated in the manual wasn’t communicated to the trainee who was electrocuted. He was exempted from this training because he understood the rules surrounding cover-ups based on his evaluation, according to one Entergy official. This was contradicted by the Entergy official who conducted the training who said the trainee had minimal exposure to Entergy’s cover-up practices.
The company also claimed that the trainee’s job in a similar position with a previous employer would have exposed him to a similar rule, but the judge pointed out that employers can’t rely on an employee’s previous experience to “preclude the need for specific instructions.”
Entergy then pointed to its safety action plan and job hazard analysis documents, which also communicate the rule. However, the judge found that these documents didn’t “state the safety rules relevant to this case, cite the relevant safety rules or otherwise point employees in their direction.” The judge said that “the vague language in these plans did not communicate Entergy’s safety rules to employees.”
Further, the judge pointed out that the lineman in charge also violated the rule and “was essentially providing on-the-job training on how to violate the safety rules” which was “strong evidence Entergy did not effectively communicate its work rules through on-the-job training.”
Past disciplinary actions had nothing to do with specific rule
As for disciplinary action, Entergy claimed that it regularly disciplined employees for violations of its cover-up rule prior to the fatal incident. In court, it pointed to 20 prior incidents in which employees were either suspended or terminated due to safety violations. The judge found that none of these past incidents involved the specific rule relevant to this case.
The fact that one lineman was fired for his role in this incident, along with the unrelated documentation of past disciplinary actions, wasn’t enough to prove that the company effectively enforced the safety rule at question.
