Have you done everything you can to be proactive about safety? Have you made the environment as safe as anyone could reasonably expect? Have you put safe work rules in place? Have you trained your workers thoroughly? Have you done all of that, and then had something go wrong? It happens. Sometimes, even the most conscientious workers make mistakes.
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Sometimes, it really is the worker’s fault.
If the U.S. Occupational Safety and Health Administration (OSHA) cites you for a violation in a case that you believe is the result of a worker’s misconduct—and that you made reasonable efforts to prevent such misconduct—you can contest the violation using the affirmative defense of “unpreventable employee misconduct.”
What Is an Affirmative Defense?
An “affirmative defense” essentially “affirms” that the alleged illegal conduct took place—but offers evidence that explains or justifies your actions and reduces your legal liability. For example, a person who shoots and kills another person did commit an illegal act—but “self-defense” is an affirmative defense against a murder charge. If the defendant successfully argues that he or she killed another in self-defense, he or she will not face the usual penalty for murder. Note that, because the affirmative defense begins by admitting the validity of the charge, it transfers the burden of proof to the defendant, who must then prove his or her defense.
If you argue the affirmative defense of “unpreventable employee misconduct” when you contest an OSHA citation, you essentially admit that, yes, the cited OSHA standard was violated as described in the citation—but that you did everything in your power to prevent the violation. The violation resulted from the actions of an employee who knowingly broke established work rules.
Let’s look at a real-world example.
The Case of the Worker Who Walked the Plank
On July 30, 2014, at the Port of Benicia in Benicia, California, workers were unloading 1,600 vehicles from a cargo ship for SSA Pacific. The cargo was being unloaded from the ship’s stern ramp. The ship was equipped with a midships gangway as well, but that morning during a walkthrough of the ship, SSA Pacific’s lead supervisor and the ship’s chief mate had noted that the gangway had a broken winch, which would make it impossible to lower the gangway properly when the tide began to rise. They ordered the gangway secured out of use and told the other supervisors and longshoremen to use the stern ramp to access the ship.
As part of its Local Emphasis Program on longshoring operations, OSHA sent an inspector to the ship. The inspector arrived after the unloading operation had begun, entered the ship from the stern ramp, and spent approximately 4 hours conducting her inspection from the interior of the ship. After a lunch break, the inspector returned to the ship, where she observed that the midships gangway had been lowered—but that the end of the gangway was hanging in the air, 3 to 4 feet above the dock. To make the gangway accessible, a plank had been lashed to the end of the gangway that extended to the edge of the dock. The plank had no handrail. The inspector asked a crew member to raise the gangway so that it could not be accessed. In addition, the supervisor who was escorting the inspector walked to the gangway entrance (from the inside) and checked the door, which was padlocked.
After the supervisor and the inspector exited the ship, the supervisor left the inspector at the dock office. From the office, the inspector saw the supervisor walk up the gangway, using the plank. Asked about the incident, the supervisor acknowledged that he made a mistake by accessing the gangway from the plank—but he stated that he was only attempting to quickly abate the hazard identified by the inspector. The inspector pointed out the violation to the terminal manager, who had the plank removed from the gangway and disciplined the supervisor for using the gangway while it was in an unsafe condition.
The inspector cited SSA Pacific for a violation of 29 CFR 1918.22(b), which requires that gangways be equipped with handrails.
SSA Pacific contested the citation, arguing that the supervisor’s use of the gangway was a case of unpreventable employee misconduct. The supervisor even admitted that the fault was his. But would the Occupational Safety and Health Review Commission agree?
Tune in tomorrow to find out.