Construction firms can fight OSHA violations that stem from employee misconduct.
Although Sarasota, Florida-based Crown Roofing has been subject to multiple OSHA inspections on its project sites during the last four years, company executives say they are not completely at fault.
The firm has contested the more than $500,000 in fines it has received since 2017 for failure to provide adequate fall protection for its employees. In an interview with NBC2 News last month, Crown Roofing Safety Director Aleksey Mendez said the incidents occurred because some employees were not obeying company safety rules.
He told a reporter that the company believes it is being unfairly targeted by OSHA, adding that it spent more than $1 million dollars last year to provide safety training for its employees, particularly those working on roofs.
"We train our workers on the safety program and provide the necessary equipment for them to work safe," Mendez said. "The notion that Crown Roofing does not care about employee safety is not only factually incorrect but intellectually dishonest. To keep fining the employer for actions that are [wittingly] done by the employee is not making them safer."
Lack of compliance
The Crown Roofing case raises interesting questions: What if a contractor has trained its employees on safety rules and a few workers simply refuse to follow procedures? Is the employer still responsible?
As it turns out, this could be considered employee misconduct, which can be used as defense against an OSHA violation. In fact, while the vast majority of OSHA standards deal with employer responsibilities for workplace safety, section 5(b) of the Occupational Safety and Health Act of 1970 requires employees to comply with jobsite safety rules and regulations.
But to mount a successful defense against an OSHA citation using employees’ lack of compliance as the basis, employers need to make sure they’ve incorporated four distinct elements into their safety policies, said Edwin G. Foulke Jr., partner in the Atlanta and Washington, D.C, offices of law firm Fisher Phillips and former assistant secretary of labor for OSHA under President George W. Bush.
- The first part, Foulke said, is to provide employees with a written policy that outlines general safety policies and procedures and those that deal with the alleged violation the employer is contesting.
So, for example, if an employer is fighting an OSHA citation issued after an inspector observed an employee not wearing adequate fall protection equipment, the company must be able to point to one of its written regulations showing that the employee was required to wear it.
- The second part is training. Employers, Foulke said, must educate all employees on its safety policies and procedures and then have them sign a statement affirming that they have received the training.
- The third part is a system of verifying that the rules are being enforced. This is usually accomplished, Foulke said, by documenting the visual observations made by the contractor’s staff.
For example, the foreman might make several passes around the job each day to make sure employees are following the rules, while the superintendent might make two trips and the project manager one. They must put their notes from these inspections in writing and maintain them as part of the job record.
- Last, Foulke said, is written documentation that proves employees are routinely disciplined when they violate the rules. Discipline according to company policy is important, Foulke said, even if the employee is injured as a result of his or her actions.
“There is case law that says if you don't discipline the person who was observed [committing] the violation by the OSHA inspector, then you don't have that [employee misconduct] defense.”
Preventing violations
Most large construction companies have these types of procedures in place. At St. Louis-based McCarthy Building Cos., said corporate vice president of safety Kevin Maitland, the disciplinary process entails three steps.
We expect our workers to follow safe work practices, and those performing work in an unsafe manner will be disciplined or terminated.
After a first offense, the company issues the worker in question a written warning. Before returning to the jobsite, the employee is also required to attend the same mandatory safety orientation session — including the exam — that he or she went through when first starting work at McCarthy.
