“Numerous procedural and substantive legal defenses exist to limit liability in the unfortunate circumstance that an employer receives an OSHA citation,” writes Stefan A. Borovina, an attorney in Goldberg Segalla’s OSHA and Worksite Safety and General Liability Practice Groups. “Of the substantive defenses, one of the most effective is known as the ‘unpreventable employee misconduct’ defense. If successful, it can lead to the outright dismissal of the OSHA citation.
“In this sense, the unpreventable employee misconduct defense also acts as a template for preemptively establishing a safer workplace. By taking action before a citation is ever issued to satisfy all elements of the unpreventable employee misconduct defense … an employer can significantly minimize the risk of ever receiving a citation in the first place.”
In this article for IndustryWeek, Stefan posits that the sports truism, “the best defense is a good offense,” applies to avoiding OSHA citations as well. He explains how the elements of the unpreventable employee misconduct defense act as a convenient roadmap that employers can use when designing a comprehensive workplace safety program.