Accidents are an unfortunate part of working in construction. There can be a lot of stress and panic surrounding the accident itself—the more severe, the higher the stakes. As an employer, how do you handle an accident that, in your opinion, was the fault of one of your employees, and how do you prove this?
In part one of our article, we gave you an overview of what the employee misconduct defense is and how to access your company’s likelihood of using the defense. In this second part, we will discuss the role of your disciplinary policy and the importance of documentation when attempting to use this defense.
Does a Disciplinary Policy Expose You to Liability?
Disciplining an employee for violating health and safety rules is sometimes required. A disciplinary policy is a critical component of a safety program, and you must be sure your employees understand it. In the policy, you must communicate disciplinary actions for safety rule violations as well as more progressive disciplinary measures for repeat violations. There is one caveat, however, when utilizing a disciplinary policy. While OSHA does encourage employers to enforce legitimate safety and health rules, according to Section 11(c) of the OSH Act, employees have the right to report injuries and illnesses and employers are prohibited from discriminating or retaliating against an employee that exercises those rights. Because of this, employers may find themselves in a difficult situation.
Executing your company’s disciplinary policy correctly is paramount. It is also imperative that employers understand OSHA’s Whistleblower policies. If you require assistance with maintaining and enforcing your workplace safety rules, seek counsel from a Michigan OSHA defense lawyer.
Documentation is Critical
When it comes to claims, you could say that documentation is king. When it comes to fighting an OSHA claim, weak documentation can derail your defense. If there is no documentation, it is as if it never happened. In many cases, employers will often present records of training and procedures but may fail to present a consistent trail of evidence showing ongoing supervision of their employees, including how and when they have carried out discipline (e.g., verbal warnings, suspensions). Additionally, written and readily accessible policies is a part of excellent documentation practices.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.