Fifth Circuit to Review OSHA’s Unpreventable Employee Misconduct Defense

Unpreventable employee misconduct is an affirmative defense commonly asserted to OSHA citations. To generally prevail on this defense, an employer must show that it 1) established work rules designed to prevent the violative conditions from occurring; 2) adequately communicated those rules to its employees; 3) took steps to discover the violations of those rules and 4) effectively enforced the rules when violations were discovered. As an affirmative defense, the employer has the burden of proof.

In October of 2022, the Occupational Safety and Health Review Commission affirmed two serious violations against a contractor and rejected the unpreventable employee misconduct defense. In the underlying ALJ decision, the court found that the employer had established in its Safety Manual adequate work rules to implement the requirements of the cited standards and that it had effectively communicated its work rules to its employees through meetings, training, and the Safety Manual. The court opined that the communication of work rules can be adequate without being documented.

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Give Your Employees the Gift of Safety This Holiday Season: A Q&A With Safety Expert Curtis Chambers

As we head into the holiday gift giving season, it is a great time for businesses to think about employee safety and health and how they can strengthen their safety culture. Providing adequate supervisory and employee safety training is one of the most effective ways to ensure that employers are fostering a strong safety culture and identifying and minimizing hazards in the workplace. Doing so will not only help ensure employers are complying with their general duty obligations under OSHA and applicable training obligations but also provide employees the tools necessary to take ownership for safety and health. As the types of training required and/or recommended will depend on the specific work environment and thus may change because of factors such as employee retention, new legal obligations or operational changes, employers would be prudent to consider these issues now so they can effectively plan for them in the new year. To help employers consider these important issues, we are delighted to sit down with Curtis Chambers, from OSHA Training Services, Inc. to discuss safety and health training.

Q. Hi Curtis. Thanks for making some time to speak with us today. Can you tell us a little about yourself and your Company?
A. Thank you for this opportunity to chat, John. As our company name implies, OSHA Training Services focuses primarily on delivering training to employers and workers on topics required by the Occupational Safety and Health Administration, or OSHA. So, our services and products are skewed to that aspect of safety training, and not so much on non-mandatory topics. The company was established in 2011, and we have provided on-site OSHA training for employers located in all 50 states and several U.S. territories. We also provide numerous online OSHA training courses and other safety training resources, many of them free, via our website.
As for myself, I am a board-certified safety professional (CSP) with a master’s degree in occupational safety and health. I have been heavily involved in delivering occupational safety and health-related services for about 35 years, including providing training for clients in private industry and the public sector, conducting site inspections and evaluations, and acting as an expert witness in matters related to OSHA citations, work-related injuries and illnesses, and worker fatalities.
Q. Thank you. Could you share with us any ideas on how a business should go about determining what type of safety and health training it needs and how often it needs to provide such training?
A. Wouldn’t it be nice if the OSHA standards provided a list of all the training required for affected workers in all occupations? Unfortunately, such a thing does not exist in the OSHA regulations. So, employers typically have to resort to sifting through the thousands of pages of OSHA standards to identify specific training requirements that apply to their operations.
To simplify the process for employers to identify applicable training requirements, we sorted through all federal OSHA regulations for general industry, construction, and administrative standards, and plucked out what we believe to be the individual OSHA standards that make reference to “training” which must be provided to affected workers and/or supervisors, either on a one-time or recurring basis. Then we sorted them by section and listed them on our website (see them at We also incorporated the many OSHA standards that include key words and phrases that refer to individuals who are “certified,” “qualified”, or “a competent person”, all which imply the subject has received some level of special training.
Q. That’s a terrific resource. Thanks for sharing that. Is there a difference between supervisor and non-supervisor training?
A. It depends. That is because most OSHA standards are performance based, meaning they list the requirements for training that you (the employer) must provide to all affected employees, regardless of their position in the company. For example, the OSHA hazard communication standard specifies the training and information that must be provided to any and all workers exposed to hazardous chemicals. That training and information is the same for any worker or supervisor exposed to those chemicals. And if someone operates a forklift (referred to in OSHA standards as a powered industrial truck), the training an operator must be provided is the same for everyone, regardless of whether or not they are a supervisor.
But there do exist a few OSHA standards where the content of training required could depend on the affected person’s position. For example, OSHA’s confined space entry standards lists the duties for workers who enter into permit-required confined spaces, as well as the duties for entry attendants. They also list additional duties for entry supervisors. OSHA requires that all of these employees be provided with training necessary to “establish proficiency in their duties”, which for entry supervisors would include training on topics (such as how to fill out an entry permit) beyond what an entrant or attendant would normally need.
Q. That’s very helpful although you are starting to sound like a lawyer with the “it depends” answer. Obviously, businesses have different resource levels – for a smaller business, is there way to watch the budget while at the same time still making sure necessary and appropriate training is done. For example, can safety training be done on-line?
A. Some employers may not be aware that many workers’ comp insurance providers provide free or low-cost safety training for their policy holders, or have funds they can allot for that purpose. Also many industry groups and associations also offer free or low-cost training services or resources to their members.
As for online OSHA training, it can be a very cost-effective option for employers and individuals, especially when training is needed for just one, or a few, employees. However, many online training courses that claim to “meet OSHA regulations” are actually too general in nature to meet OSHA training requirements; in actuality many are nothing more than awareness level training courses. For example, our online confined space entry training courses range between six and a half to eight hours in length, depending on the level of training needed, but there is a plethora of online courses for confined space entry advertised on the internet as “OSHA compliant” that are only one or two hours long.
Q. Excellent information. What types of common mistakes do you see made during safety training?
A. About 50 things immediately pop up in my mind when I hear that question. In fact, I could probably write a book on the subject. But to answer your question, one of the most common mistakes I see is where someone provides their employees with generic training on some topic, be it through a trainer in a live class, by showing a safety training video, or by having them take an online class. In some cases, that training alone may be all that’s needed to comply with a certain part of the OSHA training standards; for example, having everyone watch a generic video explaining the hazards associated with excessive noise in the workplace.
But in many cases, generic training needs to be supplemented by the employer with additional training for workers on the organization’s site-specific policies and procedures. For example, a generic video or online course about emergency action plans may alert the student about the need to evacuate to their company’s designated assembly area when they hear an evacuation alarm. But someone at the site still needs to follow up with the trainee afterwards to tell them where the assembly area is located, and what the alarm sounds like. Also, there may need to be some additional hands-on training provided to the worker on topics such as how to don and adjust certain types of personal protective equipment, or how to operate the actual controls a particular brand or model of forklift.
The second most common mistake I see is a pet peeve of mine. It is when the company will hold a safety meeting on a topic that affects everyone, but only the line workers will attend, while the supervisors and managers go sit in their offices to catch up on their emails or paperwork. Not only does that send a bad message about the importance of safety training to the workers, it’s also kind of hard for someone to supervise or manage workers to make sure they comply with the training provided when the supervisors and managers themselves have not had that training.
And briefly, a third mistake I commonly see is when a company hires a new employee, gives him/her a quick orientation so they can get them started to work, with a plan to provide them with more in-depth, formal training at a later time. If an employee in the workplace has exposure to hazards that require safety training, all of that training applicable to their job, and not just a part of it, must be provided to them before they are turned loose in the workplace.
Q. I think I see a future webinar in the making. Is there such a thing as OSHA certified training and if so, what does that mean?
A. “OSHA certification” is one of the greatest myths out there. You will hear many people state, incorrectly, that “I am an OSHA certified forklift driver,” or “Our employees all have their OSHA confined space certifications.” In fact, OSHA does not “certify” forklift operators or confined space entrants, nor do they “certify” anyone else for anything else. The misuse of this term, which is ingrained in the vernacular of the safety training industry, stems from the requirement in some OSHA standards that employers “certify” that an employee has been provided with training on a specific topic by having the trainer prepare a “training certification” that lists the name of the student, the name of the trainer, the date the training was provided, and the topic covered in the training. In other words, just a formal way to document training was provided to a worker.
Q. Definitely a buyer beware situation. Should employers always retrain after an accident or maybe even a near miss?
A. It is certainly a good idea to provide retraining to affected workers any time they are involved in an accident or near miss. But refresher training is actually not mandated in most OSHA standards. However, there are a handful of OSHA standards that actually require such follow-up training in certain instances. For example, in the federal OSHA standards for powered industrial truck operator training, OSHA states that refresher training in relevant topics be provided to an operator any time they have been involved in an accident or near-miss incident, observed to operate the vehicle in an unsafe manner, assigned to drive a different type of forklift, or there is a change in workplace that could affect safe operation of the forklift; for example, a new type of forklift is introduced into the workplace, or, a ramp for forklifts to use is constructed at the site when none had been present before. Additional training in relevant topics is also necessary should the forklift operator is found not to be operating the forklift safely during their performance evaluation, which must be performed every three years.
Q. Helpful. Sounds like in most instances, it’s more of a best practice than absolute legal requirement. Should employers be documenting all training?
A. That’s a great question, especially coming from an attorney. I say that because I’ve been in depositions and trials where the opposing attorney says that lack of documentation means you did not train your workers (even though I know for a fact that they were trained), and I’ve had also opposing attorneys say that just because someone’s name is on a sign-in sheet, that does not prove they were actually in the class!
As for what OSHA says about this subject, there are a few federal OSHA regulations, usually the relatively newer ones, that do specifically require employers to document employee training, typically through the “training certification” requirements discussed earlier. However, the vast majority of OSHA standards that require employee training do not mandate that the training be documented.
Now, to your question of “should” an employer document all employee training? Generally, I say yes. That is because without documentation, it might be difficult for the employer to identify workers who did not attend the safety meeting they provided because the worker was on sick leave or vacation (or hiding in the restroom).
But let me finish up on this topic with a warning for employers who do choose to document all training, even when it is not required. I have seen employers who use training sign-in sheets to demonstrate to OSHA inspectors that a particular worker was trained. But the absence of a name for a particular employee on a sign-in sheet could also be used against you as evidence that employee was not provided with the training, even if you know they were there. And that can be a big problem, especially if the missing name just so happens to be for an employee who was involved in an accident or got injured.
So, if you decide to document all safety training, even if documentation is not required by OSHA, be religious about making certain that all attendees sign in at safety meetings every time. And then, be just as diligent about making certain to identify any no-shows at the training session so you can get them trained in a follow up session as soon as possible.
Q. Absolutely. I definitely have some of my own war stories on this issue. You have shared some terrific thoughts and we appreciate your time. If someone wants to reach out to you to discuss safety and health training, how can you be reached?
A. I can be reached via the toll-free number at our corporate office (877-771-6742), or through the contact form on our website (
Q. Do you have any final thoughts to share on safety and health training for our readers?
A. Preventing someone from suffering an injury or illness should be motivation enough for employers to provide their employees with good safety training. But there are monetary reasons as well that affect the bottom line so to speak. Some of the largest monetary penalties issued by OSHA are related to lack of required training for employees. And some of the largest monetary damages awarded to plaintiffs in work-related accidents and injuries are directly related to the lack of training for the worker or workers involved. So, do not wait until after you are inspected by OSHA, or have someone seriously injured or killed, to begin focusing on safety and health training for your workers. Treat safety training with the same sense of importance that you place on controlling costs, quality, production, and all other important aspects of your business.

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Can an employer prevent a Section 11(c) whistleblower from getting double damages in a settlement agreement and release of a related claim? Maybe.

In a recent decision in the Eastern District of New York, Walsh v. Community Health Center of Richmond, Inc., et al., 21-CV-3094 (ARR)(TAM), the court held that OSHA has the right to pursue individual damages for a Complainant under Section 11(c) even though a prior federal action brought by the Complainant against her employer raising the same whistleblower allegations under New York Labor Law (“NYLL”) § 740, which protects employee-whistleblower, was dismissed with prejudice. The Complainant sued her employer directly in the prior federal lawsuit alleging, among other things, that her termination violated OSHA’s General Duty Clause. During the course of the litigation, the Complainant filed a voluntary stipulation dismissing her NYLL § 740 claims with prejudice. It should be noted that the court there recognized that Section 11(c) of OSHA does not have a private right of action.

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Strategic Considerations When Producing Documents During An OSHA Inspection

During an OSHA inspection, the compliance officer will most likely request certain documents such as the manufacturer’s manual, safety and health policies, internal or external safety and health audits, videotapes, minutes from safety meetings, trade association data, employee complaints, etc. Initially, the employer representative should ensure that all document requests are memorialized in writing so there is no confusion as to what is requested. When responding to these document requests, employers need to be mindful of potential privileges, e.g., attorney-client privilege covering an internal safety audit so that they are not waived unintentionally. Employers also need to be vigilant in protecting any documents containing trade secrets, commercially sensitive or other confidential financial information.

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OSHA Releases Updated Agenda For Rulemaking

On June 21, 2022, the Department of Labor released the Spring 2022 rulemaking agenda. The dates listed on the schedule are non-binding but reflect priority issues for OSHA.

The newly published agenda makes clear that the much-anticipated heat illness rules remain at the “pre-rule” stage, and it is unclear when the agency will publish proposed rules related to the same. Similarly, rules related to the prevention of workplace violence in health care and social assistance remain delayed, with the current schedule showing a Small Business Regulatory Enforcement Fairness Act review in September 2022.

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Is a General Contractor Liable for Safety Violations of its Subcontractors under OSHA?

The short answer is the proverbial attorney response, “it depends.” Under OSHA’s multi-employer citation policy, an employer may be held responsible for the violations of other employers where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite. In Secretary of Labor v. Summit Contracting Group, OSHRC Docket No. 18-1451 (May 10, 2022), the two-member Commission determined that the 11th Circuit has never explicitly adopted or rejected the multi-employer doctrine, and thus applied Commission precedent to the circumstances of the case. After doing so, the Commission ultimately reversed the administrative law judge’s decision and vacated a fall protection citation issued against a general contractor for the failure of its subcontractor’s employees to use fall protection.

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OSHA Withdraws COVID ETS for Healthcare

On December 27, OSHA announced it is allowing its ETS for healthcare facilities to sunset but that it would continue to work expeditiously to promulgate a permanent standard for coronavirus-related hazards.  In its statement, OSHA formally withdrew the non-recordkeeping portions of the ETS, however, stated that the recordkeeping requirements for employers covered under that separate rule which require them to maintain logs of all employee COVID cases regardless of whether they are considered work-related or not would remain in effect.  In addition, healthcare facilities must continue to affirmatively report COVID work-related inpatient hospitalizations within 24 hours and fatalities within 8 hours. 

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Sixth Circuit Lifts OSHA ETS Stay

Last night, the Sixth Circuit lifted the Fifth Circuit’s national stay on OSHA’s general duty COVID ETS. Shortly thereafter, OSHA issued information to employers stating it would exercise enforcement discretion and not issue citations for noncompliance with any ETS requirement before January 10, 2022 and would not issue citations for noncompliance with the testing requirements before February 9, 2022 provided employers are exercising reasonable, good faith efforts to come into compliance.

Not surprisingly, a petition has now also been filed with the U.S. Supreme Court.

The roller coaster ride continues.

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