When a worker doesn’t use PPE and dies on the job as a result, is the employer responsible or is it a case of employee misconduct?
Here’s a recent example and how the case was decided.
Skanska Koch was hired to renovate the Triborough Bridge in New York City. On May 6, 2008, an employee fell through an uncovered hole about 37 feet to the ground and died from his injuries.
The employee wasn’t tied off. OSHA issued a serious violation fine of $3,500 for a failure to provide appropriate fall protection.
Skanska Koch appealed the fine to the Occupational Safety and Health Review Commission, arguing this was a case of unpreventable employee misconduct.
An OSHRC administrative law judge rejected the company’s argument and upheld the fine.
The company said it had a policy that required all employees to be tied off at all times.
However, this is a written summary of rules that employees received: “All employees are required to wear a safety harness/lanyard at all times while on this jobsite. Although some work tasks may not require you to wear a harness/lanyard, you must have it with you at all times so you are always prepared to tie off when the need arises.”
The judge said that suggests there are times when employees are not required to tie off.
But that’s not the only problem the judge found with the company’s safety practices. Supervisors and safety managers testified that they conducted inspections to see if workers were using fall protection by looking up at the employees 37 feet above to see if they were tied off. The judge said that is not a reasonable method of discovering violations.
Evidence also showed that when a violation was found, supervisors didn’t effectively enforce the rule. Even though the company had a progressive enforcement plan, when a supervisor would find an employee working without being tied off, he would merely yell at them rather than report the incident for discipline. The judge said merely using verbal warnings isn’t a sufficient method of enforcing safety rules.
What do you think about this decision? Let us know in the Comments Box below.
Also vote on our poll this week on workers and safety regulations on our home page.
Cite: Secretary of Labor v. Skanska Koch, Inc., OSHRC, No. 08-1623, 10/1/09. PDF of the decision available here.