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Frank Marino, CSP •

Time to Pay Up - Should OSHA Fine Workers for Safety Violations?

“You know, if OSHA started fining employees we would never have any violations on our jobsites. ” This is a statement I’ve heard many times over my 15 years as a safety professional. Granted, I generally only hear this after a company gets in trouble with OSHA, but none the less the concept continues to be brought up. To this point I’ve dismissed the idea as wishful thinking of a frustrated business owner, but could those days be coming to an end?

A recent article published in Safety & Health magazine highlighted the approach taken in Nova Scotia, Canada. Nova Scotia established an administrative penalty system in 2010 under which employers, supervisors, and employee’s can be cited for safety violations. Under their program, fines can range anywhere from $100 to $500 per violation (Morrison, 2013). Alberta, Canada recently instituted an employer and employee penalty system issuing on-the-spot ticketing of up to $500 and administrative penalties up to $10,000. The administrative penalties in Alberta went into effect in October of this year, with ticketing set to begin in 2014 (Morrison, 2013).

Nova Scotia’s results since implementing this plan have shown a 5% decrease in injury rates per year. Many attribute these results specifically to the employee penalty program, while others credit education and partnership activities as making the most impact. It should also be noted that the province’s Department of Labour and Advanced Education stated that employees were cited in only 3% of the cases that resulted in administrative penalties. Supervisors made up 2% of the penalty cases, while the remaining 95 %of the penalties were issued to employers (Morrison, 2013).

So if the results in Canada look promising, why don’t we get on board? Many believe that OSHA had considered this concept back at its inception in 1970. The Occupational Safety and Health Act of 1970 section 5(b) clearly states: “Each employee shall comply with occupational safety and health standards and all its rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct ”.

However, it should be noted that later on in the Act only enforcement procedures as it relates to employers is addressed, not employees. Sen. Mike Enzi (R-WY) attempted to address the issue in 2005, when he proposed the occupational Safety Fairness Act (S. 2066). The legislation would have, among other things, authorized OSHA to issue citations and fines as high as $50 to employees found violating rules concerning company supplied personal protective equipment (PPE). The legislation never gained momentum and went nowhere (Morrison, 2013).

So where does the CRCA Roofing Contractor come out on this issue. Although on the surface the concept of fining employees makes perfect sense, it is my professional opinion that it would be a poor decision to embrace this idea and would set the progress made by roofing contractors with exceptional safety & health programs back several decades. I take issue with this “fining employees ” idea in the same way I take issue with incentive programs – both automatically assume that the violation is exclusively the fault of the employee. Exceptional programs always work to identify the root cause of every violation. For example: if an employee is observed working near an exposed skylight without the use of his or her personal fall arrest harness. An exceptional program will ask questions like:

  • Has the employee been properly trained on fall protection requirements while working around exposed skylights?
  • Does the employee have the proper safety equipment to perform the task within the requirements of OSHA?
  • Did company management pre-plan to ensure adequate anchors are available and can be used in coordination with work scope expectations of that employee?
  • Does utilizing the personal fall arrest system create additional hazards for that employees or employee working in that area?

These questions are asked because employers know they will be held accountable for violations on the roof, and it’s in everyone’s best interest to eliminate these violations from occurring. If employees can be fined for that violation, employers may no longer be asking themselves the questions listed above, potentially missing the root cause of the violation and ultimately leading to negative safety culture within the company. Incentive programs can have the same negative effect. Companies “incentivizing ” an employee to work safely will cause their focus to be on the employee’s activities, while at the same time ignoring internal and external forces that may be the real cause of the violation.

This should not be misconstrued to say that I don’t think that employees are ever at fault…because they are. Exceptional programs have fair and consistent enforcement programs that can effectively hold employees accountable when warranted. And as far as OSHA goes, exceptional safety programs always provide employers an Employee Misconduct defense when dealing with citations. In cases where the violation in question is a result of an employee’s behavior and the employer’s safety & health program meets the criteria for the affirmative defense…the citation can be vacated in its entirety.

The idea of fining employees is a debate that will continue well into the future. The CRCA 2014 Safety Seminar will feature a panel of experts in the field of safety & health. Maybe we can continue the debate there. For the time being, we are left to rely on the fundamental programs and policies that are the foundation of any exceptional safety & health programs……programs that I think are working just fine.

References
  • Safety & Health, Each employee shall comply…November, 2013, Kyle W. Morrison
  • OSHAct, www.osha.gov. 2014

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