Michael Rubin, chair of Goldberg Segalla’s OSHA and Worksite Safety group, was quoted in Business Insurance while co-presenting the firm’s recent webinar “Defending Against an OSHA Citation: The Unpreventable Employee Misconduct Defense.”
Mike delved into the pitfalls and necessary protocols when an employer uses an “unpreventable employee misconduct” defense in challenging citations.
“With this defense, you can actually go deeper and effectively say, despite doing everything correctly as management, your employee did not follow the directives and therefore … you should prevail,” Mike explained. “It’s basically a winning meritorious defense.”
Mike emphasized the importance of an employer proving the sufficiency of their workplace-safety plan and having ample documentation of it. Rules must be set by the employer, shared with employees, employers must have a plan to discover violations of their rules and show that they enforce them.
“This is the backbone of a health and safety program,” Mike said. “You have to have a disciplinary program. You need to have a record that this is a real thing and you enforce it.
“Even if you think you are doing all this stuff, think about how you can enhance what you are doing,” he added. “Are there any gaps? Time passes, your operation might change, or you have new people coming in.”
“Employers Have Little Flexibility in Challenging Osha Citations: Attorney,” Business Insurance, August 17, 2022
Goldberg Segalla’s OSHA and Worksite Safety Practice Group delivers critical representation and preventive counsel to employers in multiple industries across the country—including construction, manufacturing, energy, retail, hospitality, and health care. Led by an OSHA defense attorney and trusted legal counselor who holds the rare distinction of also being a Certified Safety Professional (CSP), this national practice group strictly focuses on occupational safety and health law issues.