As mentioned in that blog, OSHA does not have a specific standard governing workplace violence but incidents may potentially be cited as a violation of the general duty clause. Typical examples of employment situations that may pose a higher risk of workplace violence incidents include but are not limited to:
Some jurisdictions such as New York have enacted legislation requiring public sector employers to develop and implement programs to prevent and minimize workplace violence. Although the New York law is limited to public sector employers, it can provide all private sector employers a good roadmap on what an effective workplace violence prevention program should include. Generally speaking, employers should consider:
In addition to OSHA issues, workplace violence could also expose businesses to liability in other areas such as vicarious liability for worker conduct based on a respondent superior theory, negligent hiring and negligent retention and also have potential workers’ compensation implications. Of course, the most important issue is simply the health and wellbeing of the employees.
]]>Because there was no damage, these near miss incidents are often ignored or not investigated as thoroughly as a recordable workplace injury or illness on the premise of “no harm, no foul.” However, by doing so, businesses fail to take advantage of a zero cost learning tool that might prevent a serious injury or illness from occurring in the not-so distant future. Indeed, experience has shown there is little question that most loss producing events were preceded by warnings or near miss incidents.
Take the real life example of a business that many years ago installed a number of small venting systems at its operations. A piece of one of the venting systems fell and almost hit an employee which almost certainly would have caused a serious injury and possibly death. The business determined that (essentially) a screw came loose causing the part to fall. It then checked the remaining venting systems and learned that other screws had starting becoming loose as well and was able to resolve the issue before anyone got hurt.
It is with little creativity that one can imagine countless scenarios whereby performing a root cause analysis on a near miss incident would result in similar finding that could be used to prevent a future accident(s) from occurring. More often than not, these investigations may be smaller in scale, easier to conduct, and may not have the immediate deadlines associated with investigations conducted when OSHA is involved.
Even if the investigation results in a finding that human error caused the near miss, and they often do, this provides the employer an opportunity to revisit training. In fact, documentation of these proactive efforts could be used to reduce OSHA penalties and/or would be powerful evidence establishing an employee misconduct defense to OSHA citations or in defense of negligence and wrong death litigation.
Accordingly, businesses should ensure that their reporting policies include near miss incidents and should cultivate an environment of encouraging and supporting employees who report such incidents even if anonymously. As with any effective policy, this means a demonstrated commitment that begins with management and is communicated to all employees and includes their active involvement.
]]>The problem was that there were no witnesses to the accident and the employee did not report it. Instead, he went home and told his wife that he had fallen off a ladder and into the “pit” at work. The decedent went to the hospital and was diagnosed with fractured ribs, was given painkillers and sent home. Three days later he went back to the hospital and was diagnosed with a ruptured spleen and a punctured lung and was admitted but died the next day following complications from “blunt impact injuries.”
The court found that testimony of a supervisor that he had witnessed the decedent holding his stomach and indicating that he was not feeling well the day after the accident combined with the declarations of the deceased employee to his wife concerning the accident presented sufficient evidence that the accident occurred in the course of employment.
Clearly the cost, time, and pain of this litigation would have been avoided if the deceased had reported the injury. So why didn’t he report it? Was he afraid he would be disciplined for getting hurt? In addition, although no witnesses came forward to testify they witnessed the accident, the court noted that the widow testified at the decedent’s funeral that she was told by individuals that a coworker had picked the decedent up out of the pit but did not want to come forward with information for fear of losing his job. As we discussed in a previous blog, OSHA’s new recordkeeping rule also requires employers to inform employees of their right to report work-related injuries and illness free from retaliation. This can be done by posting the already-required OSHA workplace poster. The new rule also clarifies the implicit requirement that an employer’s procedure for reporting work-related injuries and illness must be reasonable and not deter or discourage employees from reporting. The decision is devoid of any information about whether anti-retaliation information for reporting workplace accidents was communicated to employees or the terms of the Transit Authority’s reporting procedure, if any, but such evidence may have been useful in this litigation.
This case serves as a good reminder that employers should ensure they are complying with the anti-retaliation requirements and that anytime an employer learns about a workplace accident that part of its root-cause analysis should also incorporate reviewing whether its reporting procedure is effective.
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