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Lack of Clear Procedures Defeats Use of OSHA Employee Misconduct Defense

    Client Alerts
  • 07/31/2019

When cited for violation of OSHA safety rules, employers can assert an “unpreventable employee misconduct” defense. This defense claims that the employee knew that he or she should safely engage in the work activity, yet ignored these instructions leading to the violation. Earlier this month, the Fifth Circuit Court of Appeals rejected an employer’s use of the unpreventable employee misconduct defense in a situation where the employer lacked clear training and safety procedures.

In Southern Hens, Inc. v. OSHA Review Comm., following a finger amputation during a machine cleaning process, OSHA cited the employer for serious lock-out/tag-out violations. The employer claimed that the employee’s injury resulted from her failure to follow existing lock-out/tag-out procedures. The Fifth Circuit rejected this defense and affirmed the citation, concluding that the employer had constructive knowledge of the employee’s misconduct, because her supervisor regularly passed by, observing her work.

In addition, the employer lacked established work rules regarding cleaning procedures and the need to deenergize the machine before work began. The employee’s violation of her instructions could not be described as misconduct when those instructions were not based on clear training and work procedures. OSHA’s lock-out/tag-out rules require written procedures, but this case demonstrates the value of clear procedures for all work processes. In addition to direct safety benefits, the use of such procedures can help defend OSHA citations if employees do not follow those directions.