Effectively Training Employees on OSHA's New Recording-Keeping Requirements to Avoid Liability

As part of its mandate to ensure the "safety" and healthful working conditions for every worker in the nation, the Occupational Safety and Health Administration (OSHA) has recently implemented new reporting requirements. The new requirements are aimed not only at collecting better information about the incidence of occupational injuries and illnesses and simplifying the system for employers, but also at improving employee awareness and involvement in the recording and reporting requirements.

Effective in 2002, OSHA's new requirements mandate that employers establish more precise reporting procedures for employees, as well as provide training on those procedures. Employers must also guarantee that employees and former employees have access to their injury and illness reporting records. In order to comply with the new mandates as well as the old requirements, employers, subject to OSHA's jurisdiction, will need to implement new or improved existing safety and health training programs.

A company that spends time and resources on adequately training its employees can more readily avail itself of the affirmative defense of "unpreventable employee misconduct." This defense allows an employer to escape liability from OSHA citations and litigation when it can demonstrate that: (1) workplace rules have been established to prevent reckless behavior or an unsafe condition from occurring; (2) the rule was adequately communicated to employees; (3) it took steps to discover incidents of noncompliance; and (4) it effectively enforced the rule whenever employees transgressed it.

On September 30, 2002, the First Circuit Court of Appeals, in Modern Continental Construction Co., Inc. v. OSHRC, upheld citations and fines assessed by OSHA against an employer for a workplace accident. The court specifically rejected the employer's otherwise available defense of "unpreventable employee misconduct" based in part on the finding that the employer failed to adequately communicate workplace safety rules to persons with a limited understanding of English, including the employee injured in that case.

Because the new requirements impose a greater mandate that employers establish ongoing communication with their employees, some employers may find themselves facing difficulties as the demographics of the nation's workforce continue to evolve. The U.S. Census Bureau's most recent statistics reflect that more than 10 million Americans speak little or no English. In Colorado, the most common non-English language is Spanish, with approximately 41,000 persons over the age of 14 speaking Spanish only, meaning that they cannot speak, read, write, or understand English. These statistics particularly compel the need for companies with non-English-speaking employees to reassess their safety training programs.

The U.S. Bureau of Labor Statistics' most recent survey of job-related fatalities indicates that fatalities involving Hispanic workers increased by 9% nationally, while fatalities involving all other ethnic groups decreased. Presumably, a number of these fatalities can be traced to linguistic barriers. Responding to concerns that Hispanic workers are more likely than others to be injured on the job, in February 2002, U.S. Department of Labor Secretary Elaine Chao announced that OSHA is prioritizing its outreach to non-English-speaking communities, in particular Spanish-speaking communities. As part of its efforts, OSHA is partnering with community groups to disseminate safety and health information to Latino communities and has launched a new Spanish-language website providing basic information such as worker and employer rights and complaint forms.

Practical Significance

Employers can avoid liability by critically assessing their training programs to ensure compliance with OSHA regulations and adopting innovative ways of communicating with employees, particularly their non-English-speaking workers. OSHA regulations encourage employers to use pictographs or other forms of nonverbal communication. Additionally, employers may wish to hire bilingual staff or implement outreach efforts similar to those adopted by OSHA. Such efforts range from translating materials to utilizing community organizations to train limited-English-speaking workers on the subject of the new OSHA standards as well as high-risk activities and hazards.

In sum, effective communication between employers and workers, especially those who are non-English-speaking, is important for three reasons: it reduces the number of workplace accidents and injuries; it reduces the likelihood that OSHA will issue an employer citation of noncompliance; and it eliminates an employer's exposure to additional liability.