Proper safety policies and implemented training remain cornerstones to an effective safety program. When deficiencies crop up, OSHA and plaintiff 's lawyers have a pipeline to serious citations or intentional tort civil claims. Witness four recent cases.
1) Contradictory safety policies— An employer violated OSHA's general machine guarding standards when it gave employees the option of wearing gloves while manually feeding wire mesh into a flattening machine, while also prohibiting the use of gloves near moving machinery in a different work rule. The First Circuit U.S. Court of Appeals upheld the violation because this (Hobson's Choice) required the operators to choose which hazard to protect themselves against. The employer claimed a defense of isolated or unprevented employee misconduct. The problem? It was not an isolated situation but a practice because most of the employees kept their hands on the workpiece, near the in-running rollers. (Riverdale Mills Corp. v. OSHRC, 1st Cir: No. 01-1060, unpub. Op. 2/21/02)
2) No procedures in place to check an employee's skill or experience level—A Texas state appeals court declaresthat exposing an employee to the extremedanger of an unsafe hoist lift withoutspecific safety procedures and trainingconstitutes gross negligence. The courtattributed the unsafe lift act of a supervisorto the company because he was asupervisor and "had doubts" about thesafety of the lift before it was carried out.(R&R Contractors, et. al. v. M. Torres, et.al, No. 13-00-342-cv June 27, 02)
3) Employees' beliefs on whether or not they received training is not the legal test for determining adequacy of training—Following a fatality investigation,OSHA relied primarily uponemployee interviews to cite a companyfor inadequate safety training. The companydefended by pointing to testimonyabout general on-the-job trainingand prompt safety meetings. Neither typeof evidence carried the day. The OSHAReview Commission declared that:
• Sufficiency of an employer's training program should not be measured solely by employees' subjective assessments.
• The particular views of workers are not necessarily, and often times are not, the best determination as to what is safe and unsafe. Convenience rather than safety considerations often dictates a worker's perspective; and
• Supplying employees with safety manuals did not address the specific hazard of employees running the auger blocks with the hopper grate raised.
The OSHA court wanted to see documentation of training where the hazard was explained and where the protective guarding or PPE methods to prevent the hazard were discussed. (Secy. of Labor v. O'Brien Concrete Pumping Inc., 18 BMA-OSHC 2059)
4) "Learn as we go" training violates an OSHA standard calling for safe work practice—When a safe-practicesstandard does not specify written rules,then verbal safe-work procedures areacceptable. However, when operatorstestify they often are confused about workprocedures, OSHA judges are upholdingcitation. A citation was affirmed whenthe employer was unable to establishthat an unwritten work rule was actuallyfollowed. Only one operator followedthe procedure, and there was no formaltraining on the procedure. An employeetestified that operators would "learnas we go." (Secy. of Labor v. AlbemarleCorp. 18 BNA-OSHC 1730).