By: Thomas H. Welby Published: March 2010

Safety Policy: Under OSHA, an Employee's Failure to Comply with a Safety Rule Does Not Equal a "Failure to Train"

Several recent installments have discussed OSHA’s increasing emphasis on “failure to train” as the basis for citations, and as a means to circumvent some of the requirements of OSHA’s “General Duty Clause.”

I have also highlighted practical difficulties employers face in not just going through the motions of training, in order to satisfy OSHA requirements, but in training effectively, so as to accomplish the primary goal of getting employees to “work safe” and thereby reduce the number and severity of job-related illnesses and injuries.

While I am a strong proponent of safety training, and would encourage you to all you can reasonably afford to do in this area, in light of the limited “absorption rate” of even the best training amongst the construction rank-and-file, I have suggested that special emphasis be placed on your supervisory personnel.  They, especially, should receive both comprehensive training in all of the OSHA standards affecting your trades.  No less importantly, supervisors should have ownership’s clear mandate to be alert to safety transgressions, and to correct and discipline workers who break safety rules. 1

A recent Administrative Law Judge decision signals some recognition at least that, while employers are responsible to lead the proverbial horse to water, it’s not a per se violation of the obligation to train, whenever an employee commits a safety infraction.

The facts in Secretary v. Republic Services of Florida were as follows.  The employer was engaged in garbage collection in South Florida.  Its employee was operating a truck-mounted crane, to unload a container at an apartment complex.  The crane’s boom came within two feet of an overhead power line energized to 230,000 volts, and not guarded or insulated.  Electricity from the line shot to the ground, damaged the crane, thrust Girtman, the operator, back in the cab of the vehicle (causing him to lose consciousness) and opened a hole in the ground.  Girtman, luckily, survived, but was off work for a month, and resigned not long after returning to work on light duty.

A general-industry OSHA standard prescribes that employees be “trained in” and “familiar with” the safety-related work practices required by 29 C.F.R. §§ 1910.332 through 1910.35 that pertain to their job assignments.

The specific standard in which the employer was alleged to have failed to train Mr. Girtman was § 1910.333(c)(iii)(A), which provides as follows:

Any vehicle or mechanical equipment capable of having parts of its structure elevated near energized overhead lines shall be operated so that a clearance of 10 ft. (305 cm) is maintained.  If the voltage is higher than 50kV, the clearance shall be increased 4 in. (10 cm) for every 10kV over that voltage. . . . 2 

The citation issued to the employer consisted of two items.  One was that Girtman had not been trained in the clearance distances in the standard just quoted.  The second was that Girtman had been exposed to the unsafe condition of the crane being operated only 2 feet distant from an energized, 230kV power line.

The employer was shown to have a safety program including a safety manual, monthly safety meetings, and weekly tool box talks.  Girtman’s testimony that, in his 14 years of employment, he had never been trained in the specific distance to maintain from an energized overhead line was contradicted both by the company’s safety manual (which stated the distances per the OSHA standard) and testimony by his supervisor.  The latter testified that the distances were mentioned form time to time in monthly safety meetings, and had been referenced specifically in at least two such meetings in the 16 months prior to the occurrence, at least one of which had been attended by Girtman.3 

Clearly, the ALJ found based on the evidence presented, in spite of such training received Girtman “obviously did not understand the need to maintain a safe distance or what the safe distance was.”  Touching on a difficult and sensitive point, the ALJ held in effect that a defense to the first citation item was established by proof of the provision of the training.  And, while the Secretary had urged that the standard’s requirement that employees be “familiar with” the distance requirements implied a requirement that the employer not onlyinstruct employees in the standard, but also conduct testing to ascertain that the instructions have been absorbed, the ALJ rejected that view:

The dictionary defines “familiar” as “frequently seen or experienced.” . . . The occurrence of an accident does not establish than an employee did not receive the training. . . . Also, an employee’s failure to comply with a safety rule does not establish a failure to train.

 Based on the foregoing, the ALJ vacated the failure-to-train citation item, holding that the Secretary had failed to prove, first that the employer had not provided training regarding the safe distance to maintain from overhead power lines and, second, that the standard requires employers to test employees, to ensure that they understand the requirements.

As for the second citation item (that Girtman had been exposed to the hazard of the crane boom being only 2’ from the energized power line) that ALJ vacated that violation as well.  It is an essential element of an OSHA violation that the employer have knowledge of the condition, whether actual knowledge orconstructive knowledge.  The latter, of course, is shown by circumstances in which the employer should have known of the condition with the exercise of reasonable diligence.

Actual knowledge was not alleged in the Republic Services case.  As the ALJ noted, the factors relevant to a “reasonable diligence” inquiry include the duty to inspect the work area and anticipate hazards, the adequate supervision of employees, the formulation and implementation of training programs, and work rules designed to ensure that employees work safely.

By those criteria, the ALJ found, it had not been shown that the employer should have known of Girtman’s failure to comply with the safe distance requirements for overhead power lines.  That citation item was vacated accordingly.

While this case did not arise out of a construction scenario, if you operate, e.g., cranes, scarifying machines, or dump trucks, you will need to be in compliance with the construction-industry counterpart to the standard involved in Republic Services.  Operating equipment too close to energized power lines is, in fact, one of the most frequently-cited violations of the OSHA construction standards.

Going back to the issue of testing, in a recent OSHA case defended by my office, although the single citation item was not based on a failure to train (and the Secretary did not squarely allege that the violation consisted in, or included, the employer not testing its employees’ understanding of OSHA standards) it was pointedly raised by the Secretary at trial, and again in her post-hearing brief, that my client did not conduct such testing.

Although, perhaps, I am being overly suspicious, it occurs to me that it may be that OSHA is hoping that, if it persists in raising the issue in ALJ proceedings, it may get a ruling that effectively engrafts onto the training requirements an additional requirement of testing.  If, however, employers are going to be put to the trouble and expense of administering exams to employees, based upon their safety training, such a requirement ought to be enacted through the normal administrative rule-making process, not by judicial pronouncement.

1 I have recommended, also, that you be relentless in stressing the necessity of compliance in the “big four” areas that together account for such a large portion of construction-related injuries.  They are:  fall protection; the shoring of excavations; the avoidance of “struck-by” injuries; and staying clear of energized power lines.

2 The standard states exceptional circumstances, not relevant to the Republic Services case, in which the clearance may safely be reduced.  How, as a practical matter, an equipment operator is to ascertain the precise voltage of an overhead power line, or operate  his equipment to tolerances as fine as four inches, is not readily apparent.

3 This underscores the importance of not only conducting training, but in making and keeping  —where they may be retrieved for at least three years — written records of training conducted and the dates, subjects covered, and the names of employees in attendance.

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