A worker falls to his death while upgrading a communication tower. An OSHA investigation showed that the worker had, for some reason, detached himself from his fall protection. Is the company at fault?
OSHA thought so. It issued Paramount Advanced Wireless a $7,000 fine in the death of Gerry LeClercq for one serious violation: “Employees were working on a communication tower 60 feet above the ground without any fall protection.”
Paramount appealed the fine to an administrative law judge, arguing that the fatal fall was an unforeseeable incident of employee misconduct.
A company can use unpreventable employee misconduct as a defense if it can show it had a thorough safety program which was adequately communicated and enforced and that the employee conduct was a departure from an enforced safety rule.
The record showed Paramount had:
- a well-communicated, comprehensive and properly enforced safety program that required employees to be tied off at all times on towers
- an extensive written safety policy based on industry experience and standards set by national organizations
- required that each crew member take a written test on proper climbing
- required 100% fall protection for employees
- a progressive disciplinary policy (verbal warning, written warning, suspension, termination), and
- disciplined and terminated employees for safety violations.
The record also showed that, on the day of the fatality, the foreman on duty had filled out all necessary safety paperwork required by the company’s policy and that it was signed by all employees who were on the site.
The employees were also properly supervised on the day of the incident.
For all those reasons, the judge found Paramount showed that the fatality was an unforeseeable event caused by the actions of the employee who unhooked himself from his fall protection. The citation and fine were thrown out.
(Secretary of Labor v. Paramount Advanced Wireless, Occupational Safety and Health Review Commission, No. 09-0178, 6/21/10.) You can read the judge’s decision here.
