Discipline for Unsafe

Practices

Betsy Reeve

Reeve Shima PC, ereeve@reeveshima.com

(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

ereeve@reeveshima.com

(206) 624-4004