You Can't Prevent Them All: How To Protect Your Company From Unpreventable Employee Misconduct

• Published date: 12 September 2023
• Subject Matter: Employment and HR, Health & Safety, Employee Rights/ Labour Relations
• Law Firm: Dickinson Wright PLLC
• Author: Mr Andrew J. Alvarado

Unfortunately, workplace injuries can occur anytime, even when employers take every possible precaution to prevent them. As most employers have experienced, implementing and enforcing safety rules and policies avoids workplace injuries. But what happens when an employee ignores or intentionally breaks a safety rule and they, or someone else, is injured?

Fortunately, the Occupational Safety and Health Administration ("OSHA") recognizes the reality that most employers face and allows employers to avoid liability for workplace injuries by proving that "Unpreventable Employee Misconduct" caused the injury.

To successfully assert the Unpreventable Employee Misconduct defense, an employer must prove that it:

1. Established rules designed to prevent the injury;
2. Adequately communicated the rules to its employees;
3. Takes steps to discover violations; and
4. Effectively enforces its rules when violations are discovered.

TNT Crane & Rigging, Inc. v. Occupational Safety & Health Rev. Comm'n, 74 F.4th 347, 359 (5th Cir. 2023) (citing Angel Bros. Enterprises, Ltd. v. Walsh, 18 F.4th 827, 832 (5th Cir. 2021)).

In essence, OSHA will consider whether the employer had a rule in place that would have prevented the injury and whether the employer effectively educated its employees and enforced the rule. If the employee at issue was unaware of the rule or did not believe somebody would discipline them for violating it, then the rule offers little protection for the employee or the employer. Accordingly, employers should remember the three E's: Establish effective rules, Educate their employees, and Enforce their rules.

1. Establish Safety Rules to Prevent Foreseeable Injuries

To take advantage of the Unpreventable Employee Misconduct defense, employers must show that they designed and established a rule to prevent the injury that occurred. In other words, employers must show that they had rules in place that "specifically match the violation at issue." Southern Hens, Inc. v. OSHRC, 930 F.3d 667, 678 (5th Cir. 2019).

For example, if an employee operates a forklift in an unsafe manner and causes an injury, their employer may be able to avoid liability by showing that if the employee had followed the specific rules governing forklifts, the injury would not have occurred. Accordingly, while general rules such as "stay alert" and "do not operate this machinery while tired" are practical, they may not be specific enough to support the Unpreventable Employee Misconduct defense.

Whether...