Discipline for Unsafe
Practices
Betsy Reeve
Reeve Shima PC, [email protected]
(206) 624-4004
April 6, 2017
Why, When and How
can a school district
discipline an employee for
unsafe acts?
WHY: The Role of Safety.
To protect the employee
Protect co-workers
Protect students
Protect the public
Protect the school district from liability for workers’
compensation claims, safety citations and third party
lawsuits.
Financial Implications.
Claims costs.
Financial Implications
Workers’ Compensation Claims:
Average cost of a time loss claim in FY 2015:
$74,000 ($70,900 in 2014)
Average cost of a pension claim in FY 2015:
$874,000 ($792,000 in 2014) (173 self-insured
pensions/fatalities in 2015 compared to 1,138 for state
fund)
Self-Insured Claims: 12,423 claims (self-insureds employ
25% of covered workers but have 36% of all claims)
Medical cost growth: 2.3% (3.4% in 2014)
Most commonly reported injury: one in every six
compensable claims is a back strain from overexertion or
repetitive motion.
Financial Implications:
Safety Inspections
In FY 2015, the Dept conducted 4,642 safety inspections.
Most frequently cited hazards: Fall protection, failure of
accident prevention program and chemical hazard
programs, asbestos removal and/or exposure hazards.
Safety Inspections: Penalties
1. DOSH amended penalty structure effective 9/1/15.
2. Base penalty ranges from $100 to $7,000 per violation.
3. Base penalty can be adjusted up or down depending on
inspection history, good faith, abatement quick fix, size of
workforce, repeat violation, willful violation or egregious
violation.
Max - $70,000 per violation + $7,000 per day if not
abated by deadline.
Factors affecting penalty amount which you can control :
evidence of overall safety program including accident prevention program,
efforts to communicate safety policies,
employees are clearly involved in Safety programs,
Manager’s commitment at all levels is apparent &
employer’s injury & illness rate.
These factors establish “good faith” with a 20% reduction in each penalty.
Thus, evidence of discipline for safety violations helps establish good faith.
WAC 296-900-14015
Financial Implications
Safety citations from WISHA.
A valid defense to a safety citation is that the
violation occurred as a result of
unpreventable employee misconduct.
The defense depends upon prior discipline
for safety violations by the employer.
Requirements for the affirmative defense of
unpreventable employee misconduct pursuant to
statute include:
1. A thorough safety program, including work rules, training & equipment;
2. Adequate communication of rules to employees;
3. Steps to discover & correct violations of rules; and
4. Effective enforcement of its safety program as written in practice and not just in theory.
An employer must show that it has disciplined people for violating safety rules in the past.
RCW 49.17.120
Drug testing: discipline for positive drug
test
Unlike other states, Washington has no law that prohibits or limits benefits to
employees whose injuries were caused by drug or alcohol use.
New 2016 OSHA rule: test for drugs is allowed at time of industrial injury only
if drug use could have contributed to injury. Don’t have to suspect drug use
though.
Reason: Post-accident testing may discourage workers from reporting injuries.
Exception: if employer conducts testing to satisfy state or federal law, e.g. DOT.
Per OSHA, Not reasonable for bee sting or repetitive use injuries.
Update on OSHA drug testing rule
Update: Rule challenged in court by employers. Court refused to stay
enforcement of the rule in 11/16. Obama administration delayed
enforcement of the rule until 12/1/16. Technically, rule can be enforced now
but Trump filed a request to stay the litigation so they could review the rule.
Current administration reviewing other OSHA rules. Guess: OSHA will not
enforce the rule for now.
Summary: If your CBA or personnel policy contradicts OSHA rule, safest
approach is to follow rule. Will capture most accidents which may have been
caused by drugs anyway. Then, impose discipline for a positive drug test – but
see slides on timing of discipline.
WHEN: ENFORCING SAFETY
BY MEANS OF
DISCIPLINE
Three types of safety violations
1.Violation of safety regulations;
2.Violation of company rules; and
3.Engaging in an unsafe practice that is not
specifically prohibited by any regulation or
rule.
Violation of company rule
Example: Gardner v. Loomis Armored Inc.
Company safety rule: Do not leave the armored vehicle unattended.
Reason: Safety of driver and attendant. Handbook stated that violation is grounds
for termination.
Violation of Safety
Regulations
General safety standards.
Specific safety standards.
Specific Safety
Regulations.
• Chemicals
• Fall protection
• Lock/Tag out
• Hearing Loss
• Asbestos
• Machine safety & guarding
• Ladders
• Storage areas
• Bloodborne Pathogens
Employers’ general safety
responsibility.
“To provide a safe and healthy workplace free from recognized hazards.” WAC 296-800-110
Employee Responsibilities:
“To play an active role in
creating a safe and healthy
workplace and comply with
all applicable safety and
health rules.” WAC 296-800-120
Employees’ Responsibilities.
Employees must:
• Study and follow all safe practices that apply to their work.
• Coordinate and cooperate with all other employees in the workplace to try to eliminate on-the-job injuries and illnesses.
• Apply the principals of accident prevention in their daily work and use proper safety devices and protective equipment as required by their employment and employer.
WAC 296-800-12005
Employee Responsibilities.
Employees must:
• Report promptly to their supervisor every industrial injury
or occupational illness.
• Not remove, displace, damage or destroy or carry off any
safeguard, notice or warning provided to make the
workplace safe.
• Not interfere with use of any safeguard by anyone in the
workplace.
WAC 296-800-12005
• Not interfere with the use of any work practice
designed to protect them from injuries.
• Do everything reasonably necessary to protect the life
and safety of employees.
WAC 296-800-12005
Unsafe Practices.
Besides disciplining for violation of a specific safety standard, can an employer discipline an employee for a more general lapse of safety,
e.g. failing to follow instructions for use of chemical or failure to use seat belt?
Examples of Unsafe
Practices.Measure the factual situation against an employee’s responsibility to “follow all safe practices that apply to their work.”
WAC 296-800-12005
Notice that it does not require employees only to follow all safety regulations (specific standards) but requires employees to follow all “safe practices that apply to their work.”
Safe or unsafe practice?
PICTURE
Water on Floor
Safe or unsafe practice?
Puddle located where person is standing
Can an Employee be
Disciplined?
Answer: Yes
Definitely IF employee violates a specific safety regulation
Definitely IF district adopts company rules which employee violates; and
Probably IF the employee engaged in an unsafe act even if it does not violate a specific regulation or rule. Also, the unsafe practice may qualify as violation of a general safety standard.
Gardner v. Loomis Armored Inc.
How Does a School District make it possible
to discipline for unsafe practices?
1. Communicate safety expectations
2. Have an Accident Prevention program that includes discipline
3. Drug Testing Policy
4. Investigate causes of accidents or near misses
5. Have active and effective safety committees & supervisors
6. Utilize progressive discipline provisions in CBA or personnel policies
7. Recognize that a person injured on the job can be disciplined. The filing of a
claim does not insulate an employee from discipline.
Communicate Safety
Expectations.
Discipline rests upon fairness as well
as the law.
Communicate safety standards.
“In order to establish the affirmative defense of unpreventable employee
misconduct, an employer must show that it has established work rules
designed to prevent the violation, has adequately communicated these
rules to its employees, has taken steps to discover violations, and has
effectively enforced the rules when violations have been discovered.”
Expectations
How can an employer set up safety expectations?
1. Safety Rules
2. Personnel policies;
3. Notices on Employee Incident Reports;
4. Posters emphasizing safety;
5. Provision in performance evaluations regarding
compliance with safety practices.
6. Direction by supervisor.
7. Instruction in staff meetings.
8. Department of Labor & Industries website
training
9. Accident Prevention Program
Court: “there is no mention of any disciplinary
process in the accident prevention program.”
10. Safety Data Sheets
11. Safety videos
Example – Lost time Injuries to janitors
40% - Eye irritation or burns
36% - Skin irritation or burns
12% - Breathing chemical fumes
12% - All other
Did supervisor or district require knowledge of instructions and expectation that direction would be followed?
Did custodian follow instructions? Did supervisor check?
Example - Driving
In 2009, there were 1663 worker compensation claims
where workers were injured in highway accidents.
Costs for these claims was $20 million.
In 2015, primary cause of Washington workers’
fatalities was “transportation incidents.” Do you provide any training or reminders regarding seat belts?
Do you have a policy that requires reporting tickets received while working?
Do you discipline an employee who receives a traffic ticket while working?
Role of Safety Committees.
Investigation of accidents.
They can help identify employees who have
engaged in unsafe practices.
Decision-makers should receive copies of Minutes
of every Safety Committee meeting.
Role of Safety Committees.
Safety Committee can help identify trends that may be
peculiar to the District or School.
Once trend is identified, employees can be educated about
what safety practices to follow to prevent injuries. Then, if
an employee fails to follow that safety practice, discipline
can be imposed.
Role of ESD Programs.
Training plans.
Safety investigation.
Accident prevention programs.
Job shadow.
MSDS/SDS Online Management & Training
Training for specific equipment – lifts, fall protection, dumpster
Constraints on Discipline.
1. Union contracts.
A union contract must not be breached.
Most CBA include provisions regarding when discipline
can be imposed.
Constraints on Progressive Discipline.
1. Union Contracts
Many union contracts require “just cause” for
discharge and/or discipline.
Many union contracts include progressive
discipline steps.
Examples of CBA Progressive
Discipline Provisions.
The District has the right to discipline, suspend, or dismiss for
just cause. Prior to instituting progressive discipline steps,
the District will have made a reasonable attempt to counsel
with the employee and to clarify job expectations.
Examples of CBA Progressive
Discipline provisions.
The University shall apply where appropriate the principles of progressive
discipline which include, but are not limited to, the following steps: verbal
warning, written warning, suspension without pay and, finally, discharge. The
University will not be required to apply progressive discipline where the nature of
the offense calls for immediate discharge or imposing discipline without
progression.
Examples of CBA Progressive Discipline
Provisions.
Court: “… although documents stated that management
would generally follow progressive discipline, they did
not contain any promise that progressive discipline would
be imposed, vested ultimate discretion in employer as to
how investigations would be carried out and as to what
discipline would be imposed, and specifically cautioned
that progressive discipline would not be used when
employee misconduct was sufficiently serious.”
Union Contracts and Just
Cause.
Does violation of a safety regulation or failure to follow
a safety rule constitute “good cause” for purposes of
discipline?
Yes.
Union Contracts and Just Cause
Does an unsafe work practice that does not amount to
violation of a specific regulation or specific company rule
constitute just cause?
Answer: Probably but not certain. It will probably
qualify as violation of the general safety standards that
require employees to “follow all safe practices that
apply to their work” and “do everything reasonably
necessary to protect the life and safety of employees.”
Constraint on Discipline:
Personnel Manual.
If a personnel manual contains a promise of
specific treatment in a specific situation, the
manual creates an implied contract. An
employer can be liable if it breaches that
contract.
Example of Personnel Policy
incorporating Progressive Discipline
The stages of the disciplinary procedure are set out in
four steps: (1) a verbal request for a correction of
unacceptable on-the-job practice,” with a memo
documenting the discussion; (2) a written warning when
the offense is serious or the oral warning has been
ineffective; (3) an investigative suspension; and (4)
dismissal. Step 4 adds, “In the event of [an] extremely
serious offense, i.e., theft, violence, or gross
insubordination, it may not be necessary and appropriate
for the Mayor to use all or part of the initial stages of the
procedure.
Constraints on Discipline:
Worker’s Comp Discrimination.
1. An employer may not discharge or discriminate because an
employee has filed a worker’s compensation claim.
2. “Nothing in this section prevents an employer from taking any
action against a worker for other reasons including, but not
limited to, the worker’s failure to observe health and safety
standards adopted by the employer, or the frequency or
nature of the worker’s job-related accidents.”
RCW 51.48.025
Employee can bring complaint to Department of Labor and Industries
for retaliatory discharge/discipline or can sue in civil court.
1.Employee does not need to show that pursuing workers’
compensation benefits was the employer’s sole motivation for
discharge or discipline; just show that it was A cause.
2. The employer must then show a legitimate, non-discriminatory
reason for the discipline ,e.g. violation of a safety regulation or rule.
3. The employee must then show that the pursuit of workers’
compensation benefits was a substantial factor in the discipline &
the employer’s explanation is just a pretext to retaliate against him
for filing a workers’ compensation claim.
Discipline co-workers for
Worker’s Comp Harassment.
Robel v. Roundup case.
Discipline for Worker’s
Compensation Harassment.
No teasing or taunting.
No reenactment of injury in condescending manner.
The discipline should be sufficient to stop the
unlawful harassment.
HOW TO IMPOSE DISCIPLINE
Prior to Discipline:
Check union contract. Specific constraints may apply,
e.g. first counseling the employee before imposing
discipline.
Check personnel manual.
Check for any prior discipline for any reason.
Decide whether to request accident investigation
internally. Might help establish the existence of an
unsafe practice.
Review any Safety Committee reports.
If the unsafe practice resulted in a worker’s
compensation claim, ascertain whether ESD took a
recorded statement from the injured worker. Review
that statement.
Make sure that discipline is not being imposed because
the worker filed a worker’s compensation claim or
expressed an intent to file a claim.
Prior to Discipline
Be able to identify the unsafe practice, citing either a
safety regulation or district safety rule or description of
how the employee did not follow a safe practice that
applies to his or her work.
If this is the last progressive disciplinary action & it will
result in termination, consider consulting with an
attorney first. Does it constitute sufficient cause?
Determine Timing of Discipline.
Impact of sympathy for a hurt employee who violated safety
standard.
Collective Bargaining Agreements may require immediate
discipline.
Example: “Within ten days of event giving rise to
discipline or within ten days of that District reasonably
should have known of the event.”
Determine Timing of
Discipline.
Consider delaying disciplinary discharge until injured
worker returns-to-work after an injury – Glacier
Northwest case.
Disciplinary Process:
Determine who will be present during the
disciplinary interview.
Have union representative present if employee is a member
of a union.
Consider having another witness for the school district.
Comply with normal disciplinary practices.
Explain that discipline can be imposed for
failing to follow safety rules and practices. The
law requires that employees must “study and
follow all safe practices that apply to their
work.”
Explain clearly what the unsafe practice was. Do
not tie the unsafe practice to any resulting injury.
Discipline is being imposed for the unsafe act, not
for the injury.
If this is not the first time the person has
engaged in unsafe practices but has not been
disciplined before, you can reference past
unsafe practices. Explain though that this
discipline is being imposed for a specific unsafe
act on a specific date.
Explain what level of progressive discipline is
being imposed.
Document the conversation.
Document the discipline. If it is a verbal
warning, just document the verbal warning. If it
is a written warning, provide a copy of the
written warning to the employee to sign.
Include the formal disciplinary notice in the
personnel file.
Any questions?
Elizabeth K. Reeve
Reeve Shima PC
(206) 624-4004