Safety professionals know that at its core a good safety program requires the three E’s: establish, educate, and enforce.
Specifically, establish specific safety rules, educate employees about those rules and the hazards they face on the job, and enforce those rules consistently.
The three E’s are the brainchild of Andrew Alvarado, an attorney with the law firm Dickinson Wright. Alvarado wrote a blog post detailing how the three E’s can help employers fight an OSHA citation using the unpreventable employee misconduct defense. However, these same principles are also key components of a good safety program.
Unpreventable employee misconduct defense and general safety
The unpreventable employee misconduct defense is meant to protect employers from OSHA citations when an employee goes out of their way to violate workplace safety rules. That means the employer has done everything in their power to make the workplace safe and the employee’s poor judgment or bad behavior is what led to the citation.
A successful unpreventable employee misconduct defense will see the employer proving that it:
established rules to prevent the specific incident or injury
adequately communicated these rules to its employees
took steps to discover employee violations of the rules, and
effectively enforces the rules when employee violations are discovered.
If you visit the Occupational Safety and Health Review Commission (OSHRC) website and begin perusing the commission and administrative law judge decisions there, you’ll see that each of these components must be in play for this kind of defense to succeed.
Why is that? All of these components, which are summed up by the three E’s, demonstrate that an employer is trying to keep workers safe.
“In essence, OSHA will consider whether the employer had a rule in place that would have prevented the injury and whether the employer effectively educated its employees and enforced the rule,” Alvarado explained. “If the employee at issue was unaware of the rule or did not believe somebody would discipline them for violating it, then the rule offers little protection for the employee or the employer.”
That brings us to the three E’s.
‘E’ No. 1: Establish safety rules
In order to keep workers safe, an employer must establish safety rules to prevent injuries and incidents specific to their workplace.
The “specific” part of the previous sentence is extremely important as “general rules such as ‘stay alert’ and ‘do not operate this machinery while tired’ are practical, (but) they may not be specific enough to support the unpreventable employee misconduct defense.”
If those general rules aren’t adequate enough to support the unpreventable employee misconduct defense, then they also aren’t enough to keep workers safe.
To make rules that are at least adequate for this purpose, employers “should carefully consider the hazards associated with their line of work and what types of injuries may occur” and then develop rules to specifically address and prevent those hazards.
‘E’ No. 2: Educate your employees
Once the safety rules have been established, the next step is effectively communicating those rules to employees.
There are many ways to do this throughout an employee’s time with an employer, from orientation the whole way to retirement, including:
employee handbooks
safety manuals
regular training
refresher training
safety meetings, and
toolbox talks.
Anytime the rules are communicated, make sure employees sign off on it. That documentation is very important. Not only does this help prove in court that you communicated the rules, it also helps you keep track of who needs training and when.
‘E’ No. 3: Enforce the rules
This is a big one. All three E’s are important, but this one is really critical. A work rule that isn’t enforced is not effective. This is the one that often catches employers out when it comes to unpreventable employee misconduct defenses in front of the OSHRC.
What this means is that you “must establish sufficient processes to discover and discipline” employee safety violations.
If you drop the ball on this one, then you did nothing but waste your time with the first two. Why? If employees know they can just break the rules with impunity then they will. It’s that simple.
Sure, some employees may care about safety and will do their best to abide by the rules even when no one is looking. It’s just as likely that there will be others who don’t care and more who care only in certain situations.
Alvarado pointed out that “employers can monitor employee compliance in several ways depending on the type of work involved and the nature of the workplace.” Employers can supervise employees as they perform their work, empower all employees to report rule violations, or engage in regular audits to ensure compliance with the rules, for example.
Another thing to keep in mind with enforcement is consistency. Whatever the disciplinary action is for a given violation, make sure that it’s of the same severity every time, no matter what.
“If an employer has a ‘zero tolerance policy’ for a fundamental rule, they must consistently enforce that policy or risk losing the ability to assert the unpreventable employee misconduct defense,” according to Alvarado.
Again, if the employer loses the ability to assert that defense, it also likely means that the workplace isn’t as safe as it should be.
Remember there isn’t a one-size-fits-all solution
In following the three E’s concept, remember that each element needs to be tailored to your specific workplace.
As Alvarado pointed out, there is no one-size-fits-all solution when it comes to workplace safety “so it’s crucial for employers to carefully evaluate the nature of their employees’ work and consult with an attorney to ensure it has sufficient processes in place to protect their employees and shield themselves from unpreventable employee misconduct.”
Source: https://rb.gy/ald51
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