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