You Make The Call: Can company be cited if victim was intoxicated?

“You can’t be serious,” said George, the supervisor. “Marco was dead drunk when he fell through that floor opening. Now you’re citing us for failing to properly guard the opening? That doesn’t make sense.”

“It’s unfortunate that your crew member was intoxicated when he tumbled through the opening and landed 31 feet below,” replied Tammy, the compliance officer. “He survived the incident, but he was really banged up.”

“Yeah, it’ll be a while before Marco works again,” said George. “But you’re completely disregarding the fact that he was drunk on the job. We can’t be held responsible for injuries suffered by inebriated workers.”

“I disagree,” said Tammy. “Our rules require that openings be secured with coverings that are capable of supporting at least 400 pounds. Your crew had placed two thin metal sheets over the opening, which wasn’t enough to hold that much weight.”

“Perhaps we could’ve done a better job of securing the hole,” said George, “but you can’t cite us for a violation we didn’t know about.”

“I can penalize you if you should’ve known about the violation,” said Tammy. “In this case, the opening was in plain view and had been inadequately covered for two weeks.”

“That might be true,” said George. “But it’s also true that Marco wouldn’t have fallen through the hole if he hadn’t been drunk. We’ll challenge your fine.”

Did the company win?

No. The company lost. An appeals board upheld the citation. The board ruled that the employer couldn’t dodge the fine by claiming that the injured worker was drunk when he fell through the opening.

Sure, the crew member shouldn’t have been intoxicated while he was working. However, the staffer’s inebriation didn’t change the fact that the cover didn’t meet regulatory requirements. The rules mandated that the cover be secured and capable of supporting at least 400 pounds. Here, the two metal sheets placed on top of the hole weren’t secured and couldn’t support that much weight, so the rule was violated, whether or not the victim was intoxicated.

The board also noted that the opening was inadequately covered for more than two weeks, so the supervisor could’ve and should’ve seen it.

What it means: Look for potential safety problems

Consider regular walk-throughs of your work area during which you look for safety problems. In this case, a safety violation was in plain view for more than two weeks, but the supervisor didn’t see it.

Also keep in mind the importance of ensuring that openings are adequately covered and that covers are properly secured. You don’t want to find out the hard way – after a crew member has gotten hurt – that an opening was unsafe.

Based on CalOSHA v. S.C. Anderson Inc.

(From the February 10, 2025, issue of Safety Alert for Supervisors. To start your no-obligation trial subscription to the publication right now, please click here.)