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.

However, the court found that the employer failed to prove that it effectively took steps to detect violations of safety rules at its worksites. In so holding, the court noted that despite testimony of routine safety audits, no documentation of such audits were provided. The court also held that the employer failed to provide sufficient evidence of any discipline or enforcement action that had been implemented as a result of its discovery of violations at the worksite. On this point, the court rejected, as sufficient, two examples of employee discipline offered by the employer finding that inspection-related discipline alone does not demonstrate the employer effectively enforced its work rules prior to OSHA’s inspection.

The employer has now asked the 5th Circuit to broadly apply the OSH Act’s unpreventable employee misconduct defense arguing that the ALJ set an unreasonably high bar for invoking the defense. In support of its appeal, the employer relies on the testimony of the worker responsible for the underlying trench citation when he testified at the trial that he made “a mistake, a big mistake.” The Fifth Circuit’s decision could potentially have significant consequences for employers given the importance of the unpreventable employee misconduct defense and we will continue to monitor it.