Risk Management Safety Tip: Unsafe Employees Part I

Tips for Protecting your Business from Unsafe Employees: Refusal to use Safety Equipment and Follow Safety Rule

Unsafe employees can cost your business money in increased Workers’ Compensation Premiums, broken equipment, lawsuits from third parties as well as a host of other exposures. This can be even more frustrating when you take precautions by instituting safety rules and providing safety devices and equipment that goes ignored by an unsafe employee.

One area in which you can help limit your costs by reducing the benefits payable to an unsafe worker by 25 percent is to provide that the injury was caused as a result of the employees knowing refusal:

1. To use a safety appliance required by statute or lawfully adopted by the department, and brought prior to the accident to the employee's knowledge, or
2. Observe a safety rule required by statute or lawfully adopted by the department, and brought prior to the accident to the employee's knowledge, or
3. If injury is caused by the knowing refusal of the employee to use a safety appliance provided by the employer.

Some examples of safety appliance include:

1. Hardhat;
2. Fall Protection (harness, lanyard and tie-off);
3. Goggles;
4. Safety switches (disabled or bypassed); and
5. Seat belts are in proper working order.

Equipment must be in good working condition or the individual could be excused from using it as it is rendered “worthless.”Some examples of safety rules required by statute include:

1. The requirement of using a seat belt in the front seat of a motor vehicle;
2. The requirement of observing posted speed limits while operating a motor vehicle.

The refusal must be “willful”:

McKenzie Tank Lines, Inc. v. McCauley - the employee must have had prior notice of the need to observe a safety rule and must have been specifically ordered to use the safety equipment.

Best Practices for Taking Advantage of this Law:

1. Have the employee sign an acknowledgement of having been provided with and read the safety rules at the time of hire and keep a copy in the employee’s personnel file.
2. Constantly remind employees at the start of each work day.
3. Violations of OSHA rules are not automatic rule violations in this context unless the Employer specifically adopted those rules under its own policy.
4. Have safety meetings before the start of the work day and have the employee sign his name that he attended the meeting with a brief description of the subject of each particular meeting.
5. Make sure all written instructions and statements requiring the signature of the employee are written in the language spoken by the employee.
6. After an accident, immediately investigate whether the safety rules were followed and make sure all safety appliances were utilized at the time of the accident.