In an effort to break the cycle of bad judgment, here are some ways that safety managers can stay out of legal trouble:
TALK TO AND WITH (NOT AT) YOUR EMPLOYEES– Most employment and safety disputes DO NOT implicate legal issues–they are the product of poor communication. Explain your decisions to your employees with respect. Helping an employee understand the reason for the rule will increase compliance. Don’t let the message get lost because of how it was communicated (Employee: “Why do I have to wear safety glasses?”–Safety Mgr: “Because I said so” or “Because it’s Company policy”).
SET A GOOD EXAMPLE– You are the eyes, ears and soul of the Company. Co-workers will look to you to set the example. Unsafe working practices put employees and the Company at risk. A healthy employee is a happier and more productive employee. The fewer accidents and injuries, the more competitive the Company can be in our global economy. Use good common sense.
MAKE THE BUSINESS CASE TO THE DECISION MAKERS-Safety must come from the TOP. In the same way you need to make sure that employees understand the reason for the safety rule, you must make the business case to the decision makers about why safety counts. Speak their language (dollars and cents and productivity). If all else fails, frighten them with legal liability in real cases (Decision Maker: “Why do we have to provide safety goggles?”–Safety Mgr: “Because it’s the law”).
BE FAIR AND CONSISTENT-Workers’ Compensation Judges and governmental regulators care about fairness and consistency. You and your company are less likely to be punished if you are fair and consistent. For example, OSHA sued my client. They alleged that my client fired two employees for making safety complaints. A disputed issue was whether employees who committed the same “bad acts” as the fired employees (e.g., excessive cell phone use during work hours) were treated similarly. You are less likely to get a case dismissed if there are disputed issues that appear to be important.
TAKE EVERY SAFETY SUGGESTION AND REASONABLE ACCOMMODATION REQUEST SERIOUSLY– Trust the people who do the job every minute of every work day. They probably know more than you do about how to do the job safely. Most people with disabilities in the work place can be accommodated with less difficulty and cost than you think. You can greatly reduce your Company’s potential legal liability by making a good faith effort to consider the requested accommodation. An accommodation need NOT be provided if the employee is a “direct threat to the health and safety of themselves or others.” This exception is VERY LIMITED.
DOCUMENT, DOCUMENT, DOCUMENT PROPERLY– Once a government investigation or litigation begins, the motive of everyone is suspect. Right or wrong, documents prepared at the time of key events are more credible than documents created after litigation begins. Put dates on documents. Write clearly and professionally. Assume that a third party (such as a judge or juror) will read what you have written. Make it good and don’t embarrass yourself.
SHARE THESE DOCUMENTS– Although a memo to your file about an incident is good, a memo to the employee is better. The latter is better because it puts the burden on the employee to respond in writing if he or she intends to dispute your version of the incident. More importantly, it gives the employee the chance to change his future behavior. If you document properly, you should be eager to share these documents with your employees. This documentation can stop litigation/government enforcement actions from getting started.
IF CHALLENGED, BE HONEST AND DO NOT PRACTICE OVERKILL-No one likes to be accused of unlawful discrimination or violating government rules. If you are challenged, respond HONESTLY. Lying to government investigators will hurt your credibility and make them want to come after you. It’s NOT necessary to prove that the “evil” employee was the worst employee assigned a Social Security Number in the United States. Creating reasons for your actions that “sound better” can only hurt.
PARTNER WITH APPROPRIATE PEOPLE– Don’t be out on the limb on your own. Your Workers’ Compensation and General Liability insurance carriers, through their underwriting experiences and safety audits, can help you make the case for safety. The Company’s lawyer is also an appropriate person to help you get the necessary support.
We wish you well and NO lost time due to accidents.