Worker surprised boss – and OSHA

by on June 14, 2012 · 0 Comment POSTED IN: Workplace Safety Network

“That was really dumb of Mark,” Safety Director Clancy Callahan admitted to OSHA CO Peggy Albright. “I told him to get in his truck because he didn’t have a hard hat on. I had no idea he was going to climb back out of the vehicle and come up to you.”

“I was a little surprised myself,” the CO said. “What was he going on about? I couldn’t quite grasp his point.”

“Mark is quite the worry wart, and he was concerned you were going to cite him for not having long pants on,” Clancy said with a sigh. “That’s typical of the guy. He needs constant reassurance.”

Pants and hats
“I probably wouldn’t have issued a citation over his pants,” the CO said drily. “But I am going to have to cite you for failing to ensure people wear hats in a hard-hat zone.”

“Oh, come on,” Clancy shot back.

“For one thing, Mark is a load inspector and does almost all of his work from his truck,” the supervisor went on. “It’s rare for him to have to get out in the hard-hat zone, and he’s supposed to carry a hat with him just in a case.”

Popping out
“Plus,” Clancy added, “the minute I saw him without a hat I ordered him into the vehicle. How was I supposed to know he’d pop right back out again?”

“That’s your problem, not mine,” the CO said.

OSHA cited Clancy’s employer for a hard hat violation, and the company appealed.

Did the citation stick?

No, the citation didn’t stick. On appeal, the Occupational Safety and Health Review Commission threw it out.

The Commission said Mark’s leaving his truck without a hard hat was an “isolated event not foreseeable by the company.”

Because Mark’s work didn’t typically involve his getting out of his vehicle, supervisor Clancy couldn’t know he would suddenly do so – especially since Clancy had clearly told him not to.

Constructive knowledge
For a citation to stick, OSHA needs to show that an employer knew or should have known that a violation was occurring or was likely to occur. That wasn’t the case here, fortunately for Clancy.

Key to this case is the notion of “constructive knowledge” – where a supervisor should have known about a violation. For OSHA, that’s equivalent to “actual knowledge” – awareness that a violation is taking place.

If OSHA decides you had either constructive or actual knowledge, you won’t beat the citation like Clancy did.

‘Should’ve known’
To avoid “should have known” trouble:

  • Make sure employees and supervisors review your safety plan regularly. OSHA will consider that they should have known about any potential violations referenced there.
  • Train workers to do a mental walkthrough before starting new or unfamiliar work, where they try to imagine how they could endanger themselves and/or break safety rules.

Cite: Sec’y of Labor v. SSA Cooper LLC, No. 09-1946, OSHRC. Fictionalized for dramatic effect.

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