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Email: Craig

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Fax: 1.866.202.4843

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Standards and Regulations

RCW 49.17.060 states that each employer has a responsibility to comply with the industrial safety and health standards promulgated under the WISH Act.  WISHA standards and regulations are found in Title 296 of the Washington Administrative Code (WAC).  The standards are subdivided as shown in the following examples.  The most specific portion of the standard is used for citing violations.

 

Section -      296-24-330                        296-24-33002

Subsection   296-24-330(1)                    296-24-33002(2)

Subdivision  296-24-330(1)(a)                296-24-33002(2)(b)

Item            296-24-330(1)(a)(i)             296-24-33002(2)(b)(ii)

Subitem       296-24-330(1)(a)(i)(A)       296-24-33002(2)(b)(ii)(B)

Segment      296-24-330(1)(a)(i)(A)(I)    296-24-330(1)(a)(i)(A)(II)

Unpreventable Employee Misconduct or “Isolated Event.”

An unpreventable employee misconduct defense may exist when a violative condition was unknown to an employer, and was in violation of an adequate work rule which was effectively communicated to employees and uniformly enforced in a manner effective in practice.

Employers are responsible for employee compliance with their workplace safety and health rules, and with WISHA standards. Your safety and health program must be effective in practice, not merely in theory or outlined on paper.

 

If your company is visited by DOSH/OSHA and you are issued a citation for non compliance with the standards you may have an “affirmative defense” with issues of employee misconduct. Should you decide to appeal your citation and use the employee misconduct defense you must meet ALL four elements below to prove exempt from a citation.

 

No citation may be issued under this section if there is unpreventable employee misconduct that led to the violation, but the employer must show the existence of: (RCW 49.17.120(5)

  1. A thorough safety program which includes work rules, training and equipment designed to prevent the violation.
  2. Adequate communication of the work rules to employees.
  3. Steps to discover and correct violations of the employer’s safety rules.
  4. Effective enforcement of its safety program, as written, in practice and not just in theory.

How does this APPLYto you?

 It seems like not more than a few decades ago I was one of the Ironworkers who among other things was very resistant to say the least to the application of safety and health rules that others were imposing on ME! Of course I was not a general contractor dealing with the affects of the March 29, 1990, Washington Supreme Court ruling in Stute v. PBMC1 and held that a general contractor could be held liable for an injury to a subcontractor's employee that occurred as a result of a Washington Industrial Safety and Health Act (WISHA) violation.  What I have discovered the past five years is that there are still plenty of folks out there that think the way I did, and like I was, making it difficult to maintain a company accident prevention program for Ironworkers! Bottom line for the erector out there... after you develop your company accident prevention program that is tailored to your specific industry... You have to ENFORCE it. This is accomplished really pretty easy at least in theory.

For example:

  • You have an Ironworker in a boom supported elevated work platform (JLG type)
  • He is up doing his job with his full body harness.
  • He has forgot/neglected or just chose not to tie off to the manufactured anchorge point on the JLG.
  • Out there in the parking lot with his or her digital camera is a OSHA/DOSH Compliance Safety Officer taking pictures of your employee in the lift NOT tied off.
  • They come onsite and pay a visit to your onsite competent person, (foreman)
  • He informs him that you have an employee in a lift not tied off!
  • This would be considerd a serious violation, (likelyhood to cause serious injury and or death) he would have you abate the infraction imediatly. (have the person tie off)
  • After the dust settled you would, (if you had your ducks in a row),
  • You take the compliance officer to your jobsite office and show him or her that you have met all four requirements of an "affirmative defense
  1. A thorough safety program, including work rules, training, and equipment designed to prevent the violation; I.E. self explanatory ;-)
  2. Adequate communication of the work rules to employees. I.E Training Records!
  3. Steps to discover and correct violations of the employer’s safety rules.I.E. Job Hazard Analysis, documented safety meetings, weekly safety audits.
  4. Effective enforcement of its safety program, as written, in practice and not just in theory. I.E. employee disiplinary policy, like verbal, written, and termination for safety violations. you have to document when employees violate a written company safety rule.

RCW 49.17.120(5)(a)

No citation may be issued if there is unpreventable employee misconduct that led to the violation, and the employer has shown the existence of all four of the above elements.