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Supervisor safety liability: Four common exposures

January 2, 2014

riskFrom Vivid Learning Systems:

The responsibilities and expectations placed on supervisors are enormous at times—production, workforce management, quality control, budgets, and of course safety. These “deliverables” communicated to them by management require the supervisor to work within the employers system to effectively perform their duties. Does he/she bend the rules from time to time to get the job done on time and on budget?  If safety takes a back seat for these other priorities what liability does the supervisor create for their employer or themselves?

Federal law requires that the employer indemnify or “hold-harmless” its employees from their actions as long as the employee’s conduct were not grossly negligent and they were acting within the scope of the duties/responsibilities. Given these conditions an employer cannot sue their employees. Likewise if an employee is sued by another party for a work-related activity the employer must defend the sued employee.

Civil citations delivered by OSHA are always issued to the employer not an employee. The employer is therefore on the hook for the collective behaviors of its employees. Unfortunately citations are issued even if an employee has a severe lapse of judgment, admitting that he/she caused their injury because they did something stupid. OSHA commonly views the cause for this type of incident as not enough training by the employer or too lax of an accountability / disciplinary program to discourage such behavior. Only in a situation where a citation is issued that resulted from an employee’s rogue actions can an employer defend themselves and find relief by claiming willful employee misconduct. This condition is very difficult to demonstrate by the employer. This defense must clearly show, among other things, that the employee was properly trained, was not acting according to policy/procedure, and an effective disciplinary program was in place.

Some of the more common liability exposures a supervisor incurs include:

Workers Compensation

Failure to file a timely “first report of injury” could result in a delay in payment of lost wages or coverage for medical expenses due to a lag in claim processing. This can result in monetary penalties against the employer.

OSHA

Failure to take an employee safety complaint, correct a hazardous condition, failure to discipline an employee or interfering with an OSHA inspection. Any of these actions by the supervisor exposes their employer to more severe penalties including those categorized by OSHA as “willful” or “repeat”. Where willful or repeat violations can be demonstrated the employer may be placed into OSHA’s Severe Violator Enforcement Program. While in this program these companies are subject to enhanced enforcement inspections at all of their facilities performing similar operations. Enhanced monetary penalties also apply.

Disability Discrimination

Following a workplace or non-workplace injury the employer (supervisor) fails to make reasonable accommodations (limited duty) for the injured worker. This may place the injured worker at risk of further injury. The employee is within their right to file a complaint with the state worker-compensation program. Fines against the employer would ensure.

Defensible Record-Keeping

The most critical piece of a defense to any civil action is documentation. Detailed notes of conversations, emails, and letters or correspondence create hard proof (evidence) rather than a “he said she said” situation. In every case the obligation is placed on the employer to disprove an alleged violation. Without concise documentation this becomes difficult. For the supervisor the responsibility of documenting performance discussions, disciplinary actions, training, is very important.

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