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Unpreventable Misconduct in the Workplace: Are you equipped to defend your organization from OSHA?

Updated: Feb 13, 2022

When enforcement actions are taken by OSHA, employers may defend themselves by claiming unpreventable employee misconduct and unpreventable supervisor misconduct. In order to succeed in an affirmative defense, the defendant must prove that their safety and disciplinary action programs sufficiently prevent the hazard. As simple as this sounds, employers often face a long, arduous road of documentation collection only to be discredited by missing records and management inconsistencies.

Software solutions for health and safety management make it easier than ever to effectively document and carry out the necessary elements that build a strong case for unpreventable employee misconduct and unpreventable supervisor misconduct, including a sticking point for organizations with progressive disciplinary action policies: consistency.

The Three Elements

Any employer seeking to claim unpreventable misconduct must provide three elements of evidence that prove their programs and policies (‘rules’) protect employees from the hazard.

  1. A rule exists that adequately prevents the violation (e.g. Safety procedures, job safety assessments, and policies)

  2. The rule is effectively communicated to employees (e.g. Safety training, safety meetings, policy briefings, and orientations)

  3. There is an established method for discovering violations of the rule (e.g. enforcement of rules demonstrated through a progressive disciplinary action process)

Even when the three elements are present, cases are drastically weakened by poor documentation and variations in management, especially when it comes to progressive disciplinary action programs and the tedious recording of disciplinary escalation. Many progressive programs start with verbal warnings, for example, but without documentation, the verbal warning holds no water in a case against unpreventable misconduct.

Having a software solution like Safework Solutions Disciplinary Action Tracker module can save significant time and money for employers building a case for unpreventable misconduct. This Safework Solution module is a one-stop-shop for managers to record safety violations, store disciplinary action records, and track disciplinary statistics.

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