Safety Tidbit #2.4 - Affirmative Defenses – Get out of Jail Free Card

Safety Tidbit #2.4 - Affirmative Defenses – Get out of Jail Free Card

Source: OSHA Field Operations Manual, CPL 02-00-160, Chapter 5, Section VI.

When an employer is cited by OSHA they most often will claim the instance was a one-off occurrence. Or, they will claim the employee or supervisor acted contrary to established protocols and training.  This is called the “Affirmative Defense.”

An affirmative defense is a claim which, if established by the employer and found to exist by the OSHA Compliance Safety and Health Officer (CSHO), will excuse the employer from a citation that has otherwise been documented.

Although employers have the burden of proving any affirmative defenses at the time of a hearing, CSHOs must anticipate when an employer is likely to raise an argument supporting such a defense and attempt to gather evidence to refute the affirmative defense. The following are explanations of common affirmative defenses.

1. Unpreventable Employee or Supervisory Misconduct or “Isolated Event.” 

·      To establish this defense in most jurisdictions, employers must show all the following elements:

o   A work rule adequate to prevent the violation;

o   Effective communication of the rule to employees;

o   Methods for discovering violations of work rules; and Effective enforcement of rules when violations are discovered.

Below are some questions to ask that will help you understand Employee or Supervisory Misconduct. The issue (which I have routinely and just this last week) is a removed machine guard that is put back during the inspection/visit.

·      Who removed the guard and why?

·      Did the employer know that the guard had been removed?

·      How long or how often had the saw been used without the guard?

·      Were there any supervisors in the area while the saw was operated

·      without a guard?

·      Did the employer have a work rule that the saw only be operated with the guard on?

·      How was the work rule communicated to employees?

·      Did the employer monitor compliance with the rule?

·      How was the work rule enforced by the employer when it found noncompliance?

2. Impossibility/Infeasibility of Compliance. Compliance with the requirements of a standard is impossible or would prevent performance of required work and the employer took reasonable alternative steps to protect employees or there are no alternative means of employee protection available.  Example: An unguarded table saw is observed.  The employer states that a guard would interfere with the nature of the work.  Now how many times have you heard?

·      Would a guard make performance of the work impossible or merely more difficult?

·      Could a guard be used some of the time or for some of the operations?

·      Has the employer attempted to use a guard?

·      Has the employer considered any alternative means of avoiding or reducing

·      the hazard?

3.Greater Hazard. Compliance with a standard would result in a greater hazard(s) to employees than would noncompliance and the employer took reasonable alternative protective measures, or there are no alternative means of employee protection.  Additionally, an application for a variance would be inappropriate. Example: The employer indicates that a saw guard had been removed because it caused the operator to be struck in the face by particles thrown from the saw.  Facts to be documented include:

·      Was the guard initially properly installed and used?

·      Would a different type of guard eliminate the problem?

·      How often was the operator struck by particles and what kind of injuries resulted?

·      Would personal protective equipment such as safety glasses or a face shield worn by the employee solve the problem?

·      Was the operator’s work practice causing the problem and did the employer attempt to correct the problem?

·      Was a variance requested?

·      I’ll add one more, could local exhaust ventilation be added to remove the flying particles at their source?

Remember, for each one of the rationales we worked through, a hazardous condition exists and workers may be hurt or killed.  As consultants, we need to make the employers aware of what they can do to reduce the hazard not, how they can use their “Get out of jail free card.”

Hope this was helpful and thanks for reading my Safety Tidbits ~ Bryan

http://safety-tidbits.blogspot.com/