Does OSHA provide a defense for employee misconduct? It depends.

As the saying goes, you can’t teach stupid. No matter what safety measure you put in place, your employees will do stupid things at work, and sometimes they will get hurt.

Just because an employee is injured at work,however does not mean that you’ve violated OSHA (no matter what your friendly neighborhood OSHA investigator might tell you). Indeed, according to OSHA’s Field Operation’s Manual [pdf], an employer has defense for “employee misconduct”.

To successfully assert the employee misconduct defense, an employer must show:

1. A work rule adequate to prevent the violation;
2. Effective communication of that rule to employees;
3. Methods for discovering violations of work rules; and
4. Effective enforcement of rules when violations are discovered.

While you can’t control you’re employees’ reckless stupidity, you can control your safety rules, employee training, routine investigation, and enforcement. How?

1. Ensure all safety policies and programs are up to date.
2. Train all relevant employees on your safety policies and programs, and keep a record of their attendance at these training sessions.
3. Give your supervisors a vested interest in rooting out safety violations by making safety inspections an essential function of their jobs, and hold them accountable.
4. Discipline employees for safety violations as you would any other work-rule violation. The more serious the offense, the more serious the response, including termination when warranted.

You cannot prevent accidents or injuries, just as you cannot prevent an OSHA investigation or fines. By following these simple guidelines, however, you can put your company in the best position to fight those fines in the event an employee is injured because of a violation of your safety rules.