The Unpreventable Employee Misconduct Defense and “Just Culture” Work Environment

The Occupational Safety and Health Administration (OSHA) is tasked with ensuring employer compliance with safety standards to protect workers from harm. However, there are instances where employers may be cited for violations despite having appropriate safety programs in place. In such cases, employers can invoke the “unpreventable employee misconduct defense.” This article explores the defense’s definition, basic tenets, and application, as well as how a “just culture” work environment plays a role in it.

What is the Unpreventable Employee Misconduct Defense?

The unpreventable employee misconduct defense is a legal doctrine used by employers to rebut OSHA citations. It is based on the claim that an employee’s actions, which led to a violation, were a departure from a company’s established safety standards and protocols. Because of this, the employer could not have anticipated or prevented with reasonable oversight.

Essentially, it asserts that the violation was due to the employee’s misconduct, which was neither endorsed by nor known to the employer before the incident.

Steps to Assert the Unpreventable Employee Misconduct Defense

To successfully assert the unpreventable employee misconduct defense, an employer must demonstrate all of the following elements:

Establishment of a Sound Safety Program

The employer must prove that a well-defined and effective safety program was in place. This includes training, safety rules, and policies designed to prevent the violation.

Adequate Communication and Training

Employers must have effectively communicated safety rules and provided proper training to the employees, ensuring that they understood potential hazards and the necessary precautions.

Steps to monitor and enforce compliance

The employer needs to show diligent efforts in monitoring compliance with safety rules and the enforcement of disciplinary measures against infractions.

Employee Misconduct was Unforeseeable

Finally, the employer must demonstrate that the employee’s deviation from the safety protocols was unforeseeable and that all reasonable steps were taken to prevent such violations.

Applicable Case Studies

Case Study 1: The Manufacturing Plant Incident

In a manufacturing facility, an employee suffered an injury while operating machinery without the required safety guards. Despite OSHA’s citation for a serious violation of machinery safety standards, the company successfully defended itself using the unpreventable employee misconduct defense.

The employer demonstrated that it had comprehensive safety protocols in place, which included regular training sessions and clear instructions on machine operation. It was shown that the injured employee had received multiple warnings for bypassing safety guards in the past. This indicates a clear deviation from established safety procedures.

Case Study 2: The Construction Site Fall

A construction company was cited after an employee fell from scaffolding and sustained injuries. The company contested the citation by proving that it had a strict safety protocol for working at heights, which included harnesses and regular safety drills.

Investigation revealed that the employee had unclipped his harness to move more freely, contrary to explicit training and repeated safety briefings. The employer had also conducted regular safety audits and had a disciplinary system for safety violations, which helped establish the defense of unpreventable employee misconduct.

Case Study 3: Chemical Exposure in a Laboratory

A laboratory was cited by OSHA when an employee was exposed to hazardous chemicals due to not wearing personal protective equipment (PPE). The employer appealed the citation, presenting evidence that all employees had received training on the use of PPE in scenarios involving hazardous materials.

Furthermore, the lab had safety officers who conducted routine checks and there was a disciplinary policy for non-compliance with PPE requirements. The employee’s decision to not wear PPE was a clear case of non-compliance with the employer’s established safety protocols, allowing the employer to successfully utilize the unpreventable employee misconduct defense.

How Does “Just Culture” Work?

It is possible to protect employers’ liability using the unpreventable employee misconduct defense within a “just culture” work environment. A “just culture” focuses on balancing accountability and learning in the workplace, promoting a culture of safety where employees are encouraged to report errors without fear of punitive action.

Here’s how this can work:

Robust Safety Programs and Training

Just Culture

Emphasizes continuous learning and improvement through comprehensive safety programs and regular training sessions.

Defense Application

Employers can demonstrate that they have established sound safety programs that align with just culture principles, providing ongoing education and resources to ensure employee compliance.

Effective Communication and Training

Just Culture

Encourages open communication about safety concerns, ensuring that employees feel safe to report potential hazards without fear of retribution.

Defense Application:

By fostering open communication channels, employers can show that they have effectively communicated safety rules and provided proper training, which is essential for invoking the defense.

Monitoring and Enforcing Compliance

Just Culture

Strives to differentiate between human errors, at-risk behaviors, and reckless actions, addressing each appropriately while promoting a learning environment.

Defense Application:

Employers can use data from regular safety audits and compliance monitoring to show diligent efforts in enforcing safety rules.

In a just culture, non-punitive measures for human errors and at-risk behaviors can coexist with disciplinary actions for reckless violations, reinforcing the robustness of the safety protocols.

Unforeseeable Employee Misconduct

Just Culture

Recognizes that while human errors and at-risk behaviors can be mitigated through systemic improvements, some actions might be reckless and unforeseeable.

Defense Application

Employers can demonstrate that despite having a just culture environment and all reasonable preventative measures in place, the employee’s misconduct was a clear deviation from established protocols and was unforeseeable.

“Just Culture” Case Studies

Case Study 1: The Manufacturing Plant Incident

The manufacturing facility had a just culture that encouraged reporting safety concerns. The injured employee’s repeated bypassing of safety guards was documented, and the employer had provided additional training and counseling aimed at correcting this behavior. Despite these efforts, the employee’s actions remained reckless and unforeseeable, supporting the defense.

Case Study 2: The Construction Site Fall

The construction company promoted a just culture where employees could freely discuss safety concerns about working at heights. The employee’s decision to unclip his harness was a deliberate violation of safety rules, despite the just culture environment fostering compliance and safety awareness, making the incident unforeseeable.

Case Study 3: Chemical Exposure in a Laboratory

The laboratory maintained a just culture, with safety officers regularly checking for compliance and providing constructive feedback. The employee’s failure to wear PPE was a reckless action in contrast to the lab’s strong safety culture and training, validating the defense.

Protect Your Business and Your Workforce

Integrating the unpreventable employee misconduct defense within a just culture environment enhances an employer’s ability to protect against OSHA citations. By establishing a culture of safety, open communication, continuous learning, and appropriate responses to different types of behaviors, employers can demonstrate that they have taken all reasonable steps to prevent violations, making any misconduct genuinely unforeseeable.

This balanced approach not only helps in defending against citations but also contributes to a safer and more compliant workplace.

Contact us today to learn more.

About the Author

James A. Junkin, MS, CSP, MSP, SMS, ASP, CSHO is the chief executive officer of Mariner-Gulf Consulting & Services, LLC and the chair of the Veriforce Strategic Advisory Board and the chair of Professional Safety journal’s editorial review board. He is Columbia Southern University’s 2022 Safety Professional of the Year (Runner Up), a 2023 recipient of the National Association of Environmental Management’s (NAEM) 30 over 30 Award for excellence in the practice of occupational safety and health and sustainability, and the American Society of Safety Professionals (ASSP) 2024 Safety Professional of the Year for Training and Communications, and the recipient of the ASSP 2023-2024 Charles V. Culberson award. He is a much sought after master trainer, keynote speaker, podcaster of The Risk Matrix, and author of numerous articles concerning occupational safety and health.