Letters to the Editor

Should workers be fined for safety violations? Readers respond

Below are comments regarding “Each employee shall comply…,” which was published in the November 2013 issue of Safety+Health.

The idea of fining employees is an interesting concept, perhaps largely borne out of frustration in getting employees to comply. However, as noted in the article, there are more problems ultimately with this approach and it will not significantly increase compliance. With 30 years’ experience in safety, I believe management’s genuine commitment to safety through effective training and auditing functions has much more impact in developing compliance than any punitive measures we may bring to bear.

However, there always comes a time when you have that employee who just won’t buy in to the program, and this is where discipline must be incorporated into the overall safety process. It is the employer’s responsibility to ensure compliance, partly through discipline when needed, and this responsibility should not be abdicated to the “nanny state.” As a former OSHA inspector I saw several occasions where we did not fine an employer when we found a safety infraction and the employer could show a well-documented discipline program that demonstrated the employer’s ongoing commitment to safety and developing compliance.

That being said, I suggest that an employer truly dedicated to developing a superior safety process must strongly consider terminating employees who refuse to get with the program. Everyone has the occasional lapse we can talk and retrain through, but those who consistently thumb their nose at the employer’s efforts need to go before they hurt themselves or someone else. It’s that simple. All performance issues need to be addressed by the employer, and adding fines issued by a government entity is not the answer.

Jeff Vail
Safety Director
Shields Inc.
Winston Salem, NC

Safety is a shared responsibility for both the employer and the employee. While the employee’s obligation may be nebulously stated in various rules and regulations, the emphasis typically is employer-based, thus sometimes giving the employee the impression they have little or no duty with regards to the safety process. Employees need to know that they are an important piece of the safety puzzle and they have to take responsibility for their actions. While I agree fining employees for safety infractions may send the responsibility message, I don’t believe such regulation will ever come to fruition in the United States, and so the working safely responsibility must be addressed in an alternative and maybe creative way.

What, then, can management do to make positive strides in developing a culture in which all employees work safely all the time? Management needs to adopt a safety culture that addresses lifelong attitudes and values toward safety and deal with more than just the required behaviors. Bad or unsafe behaviors tend to lapse back into those same old bad habits after a short period of time, even after a behavioral correction.

It is human nature to take shortcuts to save energy in the form of time and effort. If as safety professionals we can tap a little deeper and promote a change in the employee’s attitudes and values by having them reflect on the impact of safety at a more personal level, we have a better chance of overall success in eliminating unsafe shortcuts. Our goal should be for employees to always work safely because they desire to and not only because it is what management expects of them.

How do we dig a little deeper? We need to get the employee to reflect on things at a more personal level (albeit this line of thinking may be construed as slightly self-serving and self-preserving): What’s my personal cost if I am involved in an incident and suffer an injury? What could my life be like after an incident, and how might it affect my family’s overall future life? Add a co-worker in the questioning and double the effect. Put into this perspective, it may be a little easier for employee acceptance and adherence to the safety rules. It may be the result of a self-preservation mode kicking in, but we have certainly accomplished our goal if the employee works safely all the time. They have come to the realization that the company and employee safety goals really do mesh when the bottom line is that the employee walks out the door at the end of the day in one piece. With this mindset now firmly rooted, the employee may even think out of the box and apply these same safety lessons while working at home!

Michael J. Reuter
Health and Safety Director
Dairy One Cooperative Inc.
Ithaca, NY

I personally would love to have the opportunity to fine workers who are not compliant with safety conditions. I feel that OSHA is setting up a sort of “sting” operation in that regard, however, if said fines came to pass.

Having learned safety in the Navy, where the OPNAV instructions are based on 29 CFR 1910, we learned we had the responsibility to comply with all safety policies and procedures set forth in said instruction. Since becoming a federal civilian, I still refer to part b of the General Duty Clause. Yet recent review of the OSHA website (www.osha.gov/workers.html) lists nothing about workers’ responsibilities; everything has to do with the employer.

I feel this is indicative of the personal lack of responsibility with which society as a whole is plagued. No one has to do anything for him- or herself – it should all be done simply because he or she is a nice person.

Because OSHA’s site itself fails to take advantage of part b of the General Duty Clause on its Workers’ page, they would be unfairly targeting an unsuspecting population – the population that says, “The employer shall provide...” without having any personal responsibility.

In our Department of Defense, my team is working to shift focus on the employer’s responsibility to the employee’s responsibility. The short of it is that if a person gets hurt, he or she is the one who will suffer, no matter how many engineering and administrative controls are put in place and the variety of appropriate PPE available.

Sandy Casey
Joint Base Anacostia-Bolling Safety IPD
JBAB, Washington, D.C.

The debate about whether an employee should be fined by OSHA has been an ongoing argument since the OSH Act was passed in 1970. What has not been adequately addressed is the level of training a worker receives, or the level of enforcement employers use to ensure their employees are using appropriate safety procedures and wearing appropriate PPE.

If an employee has been properly trained in the work methods, safety procedures and the employer’s safety policies (assuming that the employer’s program is at least as stringent as the minimum requirements imposed by OSHA), then yes – the employee should receive the citation(s) and fine(s) for his/her unsafe actions. However, if the employer does not have an effective safety program, does not uniformly enforce safety rules and/or does not provide appropriate training, then the employer should receive the citation(s) and fine(s).

This is the simplest solution. Unfortunately, underlying problems need to be better addressed and better solutions need to be examined.

First: OSHA (both state and federal) needs to provide better training for compliance officers, whose minimum training limits their ability to properly evaluate worksite conditions.

Second: Hold state and federal compliance officers (including consultants) responsible. Currently, there are laws that do not allow an individual or employer to sue compliance officers or OSHA if the compliance officer gives erroneous information or fails to point out an unsafe or unhealthful condition. This allows compliance officers to apply their “interpretation” of the alleged unsafe condition(s). Also, it allows OSHA (state and federal) to enact safety rules that are in direct opposition to manufacturers who design, engineer and test products.

Third: The insurance industry needs to provide better loss control services for its insureds. This requires the insurance industry to provide better training for its employees who work in the safety departments.

In Hilda L. Solis v. Grinnell Reinsurance, a court ruled that federal OSHA could obtain insurance company safety records for individual insureds (employers), enabling OSHA to prove that an employer had prior knowledge of a condition (as documented by the insurance carrier). This may help the insurance industry step up and require its insureds to develop, implement and maintain effective safety programs.

Fourth: Employers need to verify that safety and health trainers are qualified to provide training to employees.

Fifth: Employees need to know that if they do not comply with safety rules, they can be fined and/or their employment terminated. The employee should not be penalized or his/her employment terminated if it can be proven that the employee:

1. Did not create the hazard
2. Did not have the responsibility or the authority to have the hazard corrected
3. Did not have the ability to correct or remove the hazard
4. Can demonstrate that the creating, controlling and/or the correcting employers, as appropriate, were specifically notified or were aware of the hazards to which the employee was exposed
5. Took appropriate feasible steps to protect himself/herself from the hazard

The five items above paraphrase the employer defense provisions. Employees should have the same protection if the law changes and allows OSHA to fine individual workers.

Sixth: Safety consultants, safety trainers and apprenticeship programs (both union and merit shop) need to be accountable for the information and quality of training they provide.

Conclusion: Instead of OSHA, industry and employers worrying about what better, more stringent safety rules will cost, they should consider how much money they will save with fewer accidents, decreased insurance costs, improved production and improved quality.

J. Robert Harrell
President
Safety Management Services
San Diego, CA