With limited exceptions, state and federal workers compensation programs are no-fault systems. Regardless of how reckless or ill-conceived an employee’s actions are, they are generally still going to be entitled to recovery through workers compensation under most circumstances. However, most states provide a defense to employers and insurers if the employee is found to have violated a safety rule or neglected to use a safety device. This makes it crucial for employers to maintain a thorough and comprehensive safety plan. More importantly, employers must show that the program does not simply pay lip service to safety. By having such a plan and taking action to institute and enforce it, employers can not only proactively avoid preventable injuries, but can successfully defend against claims that occur as a direct result of an employee’s failure to follow the safety plan or rules.
For example, the Georgia Supreme Court recently affirmed an employer’s right to defend a claim if an employee is found to willfully violate a safety rule. The case was remanded to the trial level for further findings of fact with regard to the employee’s knowledge of the safety plan. Although the Georgia appellate courts have not provided specific guidance as to what is needed to successfully defend a claim using a defense of willful violation of a safety rule, a general reading of decisions on safety helps serve as a guidepost to create a comprehensive safety plan.
In short, courts are not going to punish an injured worker if an employer has a safety plan in name only. If an employer expects to win a case on a safety defense, it must show that it takes safety seriously and violations of that safety policy even more seriously. Below are three tips to effectively prevent injuries and provide defenses when safety provisions are not followed or used:
1. Create a comprehensive safety program.
The first step should be the most obvious, but surprisingly, many employers do not have any type of formal safety program. The program should clearly explain all of the company’s safety protocols and be provided in writing. Employees should be informed of this program during their orientation and be required to sign a form acknowledging they received it. There is no better defense to the claim of “I didn’t know about the safety plan,” than to present the acknowledgement form signed by the injured worker as “Exhibit A” at trial.
It is not sufficient, however, to simply hand the plan to the employee and expect they read it. It is best to present the program to the employee in person. Employers should also conduct a tour of the jobsite and discuss individual policies and procedures in a hands-on setting. Ideally, an employer would then administer an exam covering the information to employees and maintain a copy in their personnel files. Creating a paper trail showing the employee knew about the plan is strong evidence to combat any attempts to feign ignorance of safety policies.
2. Enforce the program.
It is useless to have a comprehensive safety plan if it is not enforced. Failing to enforce such a plan can not only lead to accidents, but remove any leverage you may have when defending a claim based on the employee’s failure to follow the rules. Imagine this line of questioning at trial:
Plaintiff’s attorney: “In the past year, how many employees would you say have violated your requirement to wear safety glasses while operating the widget maker?”
Safety director: “I don’t know. Every day I walk through the plant, I see at least three or four.”
Plaintiff’s attorney: “And how many of those three or four a day would you say you disciplined in any manner?”
Safety director: “I’m not sure. I imagine that I wrote up a couple of them from time to time.”
Plaintiff’s attorney: “Why is it then that you are punishing my client, who lost vision in both of his eyes, by denying his claim, when you failed to even regularly write up other employees who were not following the requirement that they wear safety goggles?”
Safety director: [Awkward silence]
Plaintiff’s attorney: “I have no further questions, Your Honor.”
Contrast this exchange with a company that applies their safety rules. The safety director or risk manager would be able to testify as to: 1) the content of the safety plan; 2) the reasoning behind the plan; and 3) the disciplinary action taken against violators of the rules.
3. Conduct regular safety meetings and training.
The best practice involves having a safety committee or regular safety meetings during which the company’s safety policies and procedures are discussed. Take attendance with a sign-in sheet, preferably with the topics discussed during the meeting listed at the top. Additional and important topics may include a discussion of potential safety hazards on the jobsite and solutions for fixing them as well as recent accounts of accidents on the job and how they could have been prevented or avoided. It is useful to review instances where employees were written up or disciplined for failing to follow safety rules or procedures. This should not be seen as a public shaming, but rather as reinforcement that the company is dedicated to its safety plan.
Many employers have some sort of pre-shift brief meeting, which can also provide a good opportunity to discuss safety. For example, offer a daily safety tip and encourage employees to come up with tips of their own. This allows them to buy into the program. You should also use this opportunity to reiterate major or significant rules and procedures.