You Make The Call: Did company adequately enforce its work rule?

“Your worker suffered an electrical burn injury because he was using the wrong tool for the job,” said Tammy, the compliance officer. “I’m writing up a citation.”

“Kyle was using a tool with insulated handles, which should’ve adequately protected him,” said George, the supervisor.

“The tool was obviously insufficient,” said Tammy. “Even though the handles were insulated, there was too much exposed metal on the device.”

“It seems hard to believe that you could penalize us for an error made by one of our staffers,” said George.

“What error?” asked Tammy.

“We require workers to use tools supplied by us,” said George. “In this case, there were other tools available to Kyle that would’ve provided adequate protection to him. However, he chose to use his own personal tool for the job.”

“Do you have any evidence that you enforce the requirement that people use your tools rather than their own personal tools?” asked Tammy.

“We don’t have to enforce a rule if everybody follows it,” said George.

“Your employee was failing to adhere to your work rule,” said Tammy, “and you had a manager working with him. Clearly, your rule wasn’t adequately enforced.”

“You’re nit-picking,” said George. “Kyle wouldn’t have gotten hurt if he’d used one of our tools. We’ll fight your citation.”

Did the company win?

No. The company lost. The OSHA Review Commission refused to overturn the citation.

The commission decided that the employer failed to ensure that the crew member used the right tool for the job. Even though the tool had insulated handles, there was otherwise too much exposed metal on it.

The commission dismissed the employer’s argument that the staffer violated a work rule by using his own personal tool. There was insufficient evidence that the work rule was enforced, especially because a supervisor was working with the victim and the manager failed to discipline the crew member for using his own tool rather than a company tool for the job.

What it means: Enforce all relevant work rules

Keep in mind the importance of insisting that crew members follow all relevant work rules. As this case illustrates, employers can’t defeat OSHA citations by claiming staffers violated work rules unless they can show that the rules are adequately enforced.

If you see someone clearly in violation of a work rule, don’t hesitate to discipline him or her. Not only will you decrease the chances of a costly OSHA penalty, but you’ll also make it less likely that someone will get hurt.

Secretary of Labor v. Infra-Red Building and Power Service, Inc.

(From the March 16, 2020, issue of Safety Alert for Supervisors)