An employer who failed in using the unpreventable employee misconduct defense to prevent an OSHA citation has petitioned the U.S. Fifth Circuit Court of Appeals to review the requirements of that defense.
The employer wants the appeals court to broadly apply that defense because it claims an administrative law judge with the Occupational Safety and Health Review Commission (OSHRC) set an unreasonably high bar for invoking its use.
A decision from the Fifth Circuit “could potentially have significant consequences for employers given the importance of the unpreventable employee misconduct defense,” according to John Ho, an attorney with law firm Cozen O’Connor.
In support of its appeal, the employer – which Ho did not name – is relying on the testimony of the worker who was responsible for the violation. That worker testified that he’d made “a mistake, a big mistake” in an incident involving an unprotected trench.
4 required components of the defense
Unpreventable employee misconduct is an affirmative defense to an OSHA citation. This means the employer admits there was a violation but that the violation was the fault of an employee who was actively disregarding company safety policies.
To win a case with an unpreventable employee misconduct defense, an employer must show that it:
- established work rules designed to prevent the violation from occurring
- adequately communicated the work rules to its employees
- took steps to watch out for employee violations of those work rules, and
- effectively enforced the work rules when employees were found to be in violation of them.
The employer has the burden of proof to provide evidence supporting these four requirements.
Employer failed to prove it disciplined workers, conducted audits
In 2022, the OSHRC affirmed two serious violations against the employer, a construction contractor, and rejected the unpreventable employee misconduct defense.
The OSHRC found that the contractor:
- had adequate work rules in the form of its Safety Manual, and
- effectively communicated its work rules to employees through meetings, training and the Safety Manual.
However, the OSHRC said that the employer failed to prove that it took steps to detect violations of its safety rules at its worksites.
Representatives for the employer provided testimony regarding routine safety audits, but since no documentation of those audits were provided, the OSHRC found there was a lack of evidence to support that requirement of the unpreventable employee misconduct defense. The OSHRC also found that the employer failed to provide sufficient evidence of disciplinary action taken against employees who violated the work rules.
The employer provided two examples of employee discipline but the OSHRC rejected them, finding “that inspection-related discipline alone does not demonstrate the employer effectively enforced its work rules prior to OSHA’s inspection.”