The OSHA’s Field Operations Manual, says to prevail on the affirmative defense of “Unpreventable Employee Misconduct –the employer must show that it…

1. UN PREVENTABLE EMPLOYEE MIS-CONDUCT INFORMATION
The OSHA’s Field Operations Manual, says to prevail on the affirmative defense of “Unpreventable Employee
Misconduct –the employer must show that it…
1. Established a work rule adequate to prevent the violation
a. (Safety Policy)
2. Effectively communicated the rule to employees
a. (Training, safety committees, signed agendas or quizzes)
3. Established methods for discovering violations of work rules, and yet did not know about an isolated
violation of the work rules; and
a. (Audits dates and findings)
4. Established effective enforcement of the rule when violations are discovered
a. (discipline policy in handbook and document discipline even verbal)
QUESTION: OSHA cited my company because an employee was found not wearing safety glasses. There is
no dispute the employee was not wearing the glasses, or that it was required (it is), but the employee was
violating our strict safety glass policy. Do we have any defenses?
To have evidence to prove the Un Preventable Employee Misconduct defense you need to demonstrate that:
1. Employer has an established PPE policy that addresses the type of PPE for which the employer
was cited;
2. All employees (including the employee who was found not wearing the PPE) have been trained
on the PPE policy;
3. Employer conducts regular audits of the workplace to ensure employees are following the PPE
policy
4. Employees are disciplined when they are found to be in violation of the PPE policy (or other
safety rules).
STRONG CASE AT CONESTING THE CITATION IF YOU CAN DEMONSTRATE ALL 4 CRITERIA
If you are not sure or not confident if you have proper MIOSHA Compliance procedures, please call or email. I would
love to give you the information needed to prevent any MIOSHA fines and help you create a safer, healthier and more
profitable organization.
Jim Rhoad mailto:jrhoad@ottawakent.com