Can you get fined for employee misconduct?

by on March 6, 2012 · 0 Comment POSTED IN: Workplace Safety Network

“Fall protection might have stopped your worker from falling down that elevator shaft,” said OSHA Inspector Jen Smith. “He was exposed to falls of 40 feet and didn’t have PPE.”

“You want someone to use lanyards while painting the top of an elevator?” asked Supervisor Gary Simmons. “That’s not feasible. He’d risk the lanyard getting tangled in moving parts.”

Second guessing the supervisor
“Not if you lock out the elevator,” said Jen.

“What about the other elevator’s moving parts?” asked Gary. “We can’t lock out both at the same time.”

“Use a retractable lanyard,” said Jen, writing up a fall-protection citation.

“PPE wouldn’t have prevented the accident,” said Gary. “This was employee misconduct. The worker crossed from the top of one elevator to start working on another. While crossing, he lost his balance and fell. That’s the issue here, not whether or not he was wearing PPE …”

Did OSHA’s citation stick?

Yes, the company was unable to get the citation dismissed and had to pay a fine. The OSHA Review Commission gave two reasons for its decision:

  1. OSHA doesn’t have to show that a safety violation caused an accident – only that the company broke an OSHA regulation. Even though fall protection may not have protected this worker from his fatal plunge, the company still failed to provide its worker with fall protection when workers were exposed to falls of 40 feet. The worker’s misconduct was a separate issue.
  2. The company failed to show that providing fall protection was not feasible. Yes, there were moving parts on an elevator. But the elevator itself could have been locked out to prevent lanyards from getting entangled. As far as the adjacent, active elevator, the OSHRC noted that retractable lanyards were a feasible solution.

Suggestions for difficult fall-protection scenarios:

  • Always provide fall protection for workers exposed to falls of greater than six feet unless fall protection is not feasible.
  • Don’t be too quick to say something’s not feasible – OSHA will spend a lot of time second-guessing you, and you’ll only win if they can’t figure out a way to make it work.
  • If PPE is either not feasible or too difficult to make work, install guardrails.

Cite: Secretary of Labor v. Kone, Inc., No. 07-1664, OSHRC.

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