'Each employee shall comply...'

When a government inspector observes an employee working unsafely – failing to wear a hard hat, for example, or not using machine guards – should that worker receive a citation or fine instead of the employer?

Although this type of policy is unheard of in the United States, some Canadian provinces have instituted the practice.

“All Nova Scotians have a role to play in keeping our workplaces safe. That includes employers, employees, government and safety partners. Employees have an important role to play in workplace safety, as their actions can impact the safety of others around them,” Lora MacEachern, associate deputy minister for the Nova Scotia Department of Labour and Advanced Education, said in an email to Safety+Health.

Nova Scotia established an administrative penalty system in 2010 under which employers, supervisors and employees can be cited for occupational safety and health violations, with fines ranging from $100 to $500. Ontario has a similar system. And Alberta recently instituted an employer and employee penalty system issuing on-the-spot tickets of up to $500 and administrative penalties up to $10,000. The administrative penalties went into effect in October; ticketing is set to begin in 2014.

Proponents of the policy consider it another tool to help ensure a safe workplace and spread the responsibility of occupational safety to everyone involved.

However, individuals opposed to the practice claim it could drive injuries underground and place employees in the awkward position of choosing to follow the law or their employers’ demands.

A tool, a message

OSHA does not fine workers for workplace safety violations. The closest the agency comes to approaching the idea is in Section 5 of the Occupational Safety and Health Act, commonly known as the General Duty Clause.

Much of the focus of the clause is spent on Sections 5(a)(1) and (2), which outline an employer’s duty to provide a safe working environment and comply with safety and health regulations. However, Section 5(b) details the employee’s obligation to comply with OSHA regulations:

“Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.”

An OSHA spokesperson did not directly respond to a question implying this section of the OSH Act could be linked to fining workers. Instead, the spokesperson said the OSH Act “places the responsibility to provide a safe and healthful workplace on employers, who are required to comply with occupational safety and health standards promulgated under the act.” The spokesperson added that OSHA had no comment on Canada’s penalty policies.

However, holding employees accountable for their actions through the threat of government fines appeals to Stephen Wilson, corporate director of safety, health and environmental affairs at Dayton, OH-based Flowserve Corp.

Wilson believes it is an employer’s duty to teach workers the safe and correct way to do their job. However, despite the best efforts of well-meaning employers, some people “only understand the stick and not the carrot,” he said.

Fining employees would be “an additional tool that would be useful in that small minority of people who just don’t get it,” Wilson said.

This is the line of thinking of Ontario’s Ministry of Labour, which believes fining workers is another tool to promote safe work practices and offer an incentive for workers, according to ministry spokesperson Matt Blajer.

“We believe tickets are an effective financial deterrent that can promote safe work practices,” Blajer said. “For an individual, a guy working on a construction job, $300 is a lot. It sends a message.”

In contrast, Scott Schneider, director of occupational safety and health for Laborers’ Health and Safety Fund of North America, believes messages about safety should be sent by employers. Upper management and supervisors need to set a tone that safety is the most important thing and never second to getting the job done, Schneider said.

In addition, fining an employee for safety violations could work against the need to identify root causes of an incident, he said. Generally, a deeper reason may exist as to why an employee is not complying with safety rules, and that reason often is related to pressure from supervisors or a foreman to complete a job quickly, Schneider said.

Bob Barnetson agreed. An Edmonton, Alberta-based associate professor of labor relations at Athabasca University, Barnetson said pressure from employers is what leads to workers committing unsafe acts.

“Employees already have an incentive to work safely – so they can go home at the end of the day,” he said.

Potential effects

Officials in both Ontario and Nova Scotia believe administrative penalties may be having a positive effect. In 2010, a report submitted to the Ontario minister of labour by an expert advisory panel on occupational health and safety stated that tickets issued to employees were an “effective immediate deterrent for non-compliance.”

Since implementing the penalty system in 2010, Nova Scotia has seen a 5 percent decrease in injury rates each year, MacEachern said. However, she stressed that education and partnership activities also played a role.

Also worth noting is that the share of citations handed out to employees in Nova Scotia is extremely small. A 2012 discussion paper from the province’s Department of Labour and Advanced Education stated that employees were cited in only 3 percent of all cases that resulted in administrative penalties. Supervisors made up 2 percent of the penalty cases, while the remaining 95 percent of penalties were issued to employers.

Opponents of fining workers warn the practice could bring more problems to the workplace than it may solve. Fear of a fine being issued after a workplace injury could cause an employee to not report the injury, Barnetson said.

Blajer questioned that assertion, especially in the event the employee’s injury was a critical one that an employer would be required to report. Wilson agreed, suggesting an injury in which an employee is bleeding would be difficult to hide.

But many injuries – such as sprains – can be hidden by the employee, according to Barnetson. Employers also might be tempted to use the prospect of an employee receiving a fine to discourage workers from reporting injuries, he said.

In Nova Scotia, stakeholders have complained that the penalty system can be unfair or inconsistent, prompting the province’s labor department to propose revisions in July 2013. Although those revisions would maintain penalties for workers and supervisors found violating standards, the labor department states it would emphasize education over enforcement.

Responsibility and control

A large part of the debate on fining workers for safety infractions focuses on what actually caused a situation that led to a violation.

Wilson suggested that even though it is in employees’ best interest to follow workplace safety procedures, injuries occur when employees make the wrong choice, such as taking a shortcut or failing to wear personal protective equipment.

“We have, in the past, taken some OSHA citations because someone wasn’t using their PPE when an inspector walks by,” Wilson said. “In a case of employee misconduct, I don’t think it’s right that the company should incur a citation when it’s very clear in a case like that that the employee should have had the PPE on.”

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 PPE. (The bill – which was introduced around the time OSHA was completing a rulemaking mandating employer-paid PPE – went nowhere.)

Although workers have an obligation to work safely, Barnetson stressed that they have little control over the work environment and hazards they face on the job. This makes it complicated to determine the true cause of an injury or a workplace hazard – the employee who failed to wear the appropriate PPE or perform a certain task safely, or the employer who failed to provide the appropriate PPE or placed unrealistic production goals?

And what about the supervisor – should he or she be held financially responsible for an employee exposed to a workplace hazard? In both Ontario and Nova Scotia, supervisors observed violating safety and health rules are subject to fines that fall between amounts for employees and employers. Given that they are responsible for both employee safety and meeting the employer’s goals, supervisors could find themselves in a tough spot.

“Supervisors are caught in the middle,” Schneider said. “They want to do the right thing, they’re trying to provide a safe workplace, but how do they get rewarded? How do they get judged? It’s all based on productivity.”

As Barnetson pointed out, an employee may consider the threat of a fine preferable to upsetting his or her employer by stopping the production line to address a hazard.

“A $300 fine is not going to get an employee to stand up to an employer,” Barnetson said. “I just think that’s unrealistic.”