Unpreventable Employee Misconduct and COVID-19

By: Carl Habekost, Esq.

As we gradually return to work during the COVID-19 crisis, employers are reviewing, revising and creating employment policies.  This is a good time, therefore, to review an affirmative defense available to employers that is based partly upon written safety policies.  When presented with an OSHA citation caused by employee misconduct, an employer should assert the affirmative defense known as “unpreventable employee misconduct”.   There are four elements to the unpreventable employee misconduct defense that employers must establish by a preponderance of the evidence. These elements are:


  • There is an established work rule that is adequate to prevent the alleged violation
  • The work rule was effectively communicated to the employees
  • The employer had methods for discovering violations of the work rule
  • The employer had an effective enforcement of the work rule when violations were discovered


The employer bears the “burden of proof” to establish each element.   For illustration purposes, let’s assume OSHA cited an employer because an employee was observed by the OSHA Compliance Officer not wearing required personal protective equipment (PPE).  The employer indicated that the employee violated a strict PPE policy and it should not be liable for a citation.  In this case, the employer may assert the affirmative defense of “unpreventable employee misconduct”.   But the employer to be successful must establish all four (4) elements of the defense.  With sound evidence, the employer must demonstrate that it i) had an established PPE policy addressing the type of PPE for which it was cited; ii) the affected employee who was observed not wearing the PPE had been trained on the PPE policy; iii) the employer conducts regular audits of the workplace to ensure that employees are following the PPE policy; and iv) the employer consistently disciplines employees when they are found to be in violation of the PPE policy (or any other safety rule).  As always, documentation is the key for the employer to prove its defense of unpreventable employee misconduct.  Documentation of communication of the applicable safety rule, documentation of regular audits to ensure compliance with the rule, and documentation of enforcement by the employer (disciplinary action records).   In most cases, employers are able to produce a safety work rule with training records, but struggle to present evidence of safety audits and disciplinary records to ensure compliance.


Employers with an overall effective safety program are generally able to provide evidence to support the defense of Unpreventable Employee Misconduct.  This employer defense is a good example of the importance of maintaining written records of training, including dated sign-in sheets, training agendas, evidence of applicable tests and quizzes, and documented safety audits and audit findings.   Documentation is the key to all of these elements.  Remember, in the mind of an OSHA Compliance Officer, if it is not documented, it didn’t happen.


Please contact a member of our Labor and Employment section with any questions or concerns.


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