Employee Misconduct

The Washington state law that established WISHA also outlined conditions under which an inspector may determine that the employer was not at fault for a safety or health violation observed in a workplace.

It's important to note that the "Unpreventable Employee Misconduct" defense is what's termed an "affirmative defense." That is to say, the burden of proof is on the employer. However, you should note that this Guide has been structured to help the employer meet all of the requirements.

The four elements for the employer to show:

1.They had a "thorough safety program, including work rules, training, and equipment, designed to prevent the violation."

  • Subsection 1a helps you get all of the safety and health rules appropriate for your business
  • Subsection 1b helps you discover what conditions in your workplace don't conform to the safety and health rules.
  • Subsections 1c and 1d are designed to give you those "thorough programs."
  • Subsection 3b outlines the types of training -- including safety rules and operation of equipment -- that make your safety program "thorough."

2. " Adequate communication of these rules to employees."

  • The "Employee Safety Orientation" -- with its signature blocks at the end -- help document that the rules were explained right from the beginning.
  • Subsection 2a, on Safety Meetings/Safety Committees helps ensure you communicate the rules (and many other things) to employees on a recurring basis.
  • Section 3b, again, provides places to communicate the rules through training.

3. "Steps to discover and correct the violations of its safety rules."

  • Subsection 2c can help you catch things long before a WISHA inspector would. Or before things hurt your employees.
  • The next section -- "Reporting…" provides a form to involve your employees in discovering hazards and ensuring you know about them.
  • Look into the benefits ( and low cost) of a "How Is My Driving" reporting service on your company vehicles.

4. "Effective enforcement of its safety program as written in practice and not just in theory."

  • The preceding page,an example of a disciplinary policy, provides the basis for effective enforcement.
  • It is vitally important that an employer documents all disciplinary actions -- from simple warnings up through dismissal of employees who have violated safety rules. It proves to everyone -- inspectors as well as your other employees -- that you mean what you say!

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