Supervisor Has Duty to Enforce OSHA Compliance

The American workplace is undergoing a seismic demographic change as the “Baby Boomer” generation — born between 1946 and 1960 — retires and is replaced by members of the subsequent generations: Generation X (1961-1982) and Generation Y/Millennial Generation (1983-2001).

This transition is particularly critical in the area of occupational safety and health compliance, specifically, the legal duty of supervisors to enforce OSHA compliance.

In the workplace, the supervisor occupies a critical role. Because the employer is typically a corporation, it must act through its employees. Those employees who are designated as supervisors — usually those who have the authority to hire, fire, enforce discipline or enter into contractual relationships — are considered under the law to be “agents” of the employers with authority to create legal liability against the employer for their actions. This includes a supervisor’s negligent or intentional acts, which may constitute violations of the OSHA Act or regulations.

Unfortunately, many supervisors do not realize they occupy this status or the extent to which their actions, or their failure to take action when necessary, can create legal liability. More importantly, many supervisors are unaware of their own exposure to personal financial or criminal liability.

Just as it is necessary to train supervisors to oversee production at a workplace, employers must also provide training regarding the operation of laws that will be intimately involved with the supervisor’s day-to-day interaction with employees.

Occupational Safety and Health Law

Supervisors must be informed of their roles as the primary enforcers of safety and health policies. It is critical that they know how to identify hazards and violations and impose written or verbal discipline on employees who have violated policies. Supervisors must receive in-depth training to be capable of identifying workplace hazards and the OSHA regulations or employer policies that are applicable, and employers must document this training.

A supervisor’s failure to identify hazards and enforce safety and health policies can lead to the issuance of civil citations by OSHA, with significant monetary penalties against the employer. Training must include the topic of employer and supervisor criminal liability under federal law for fatalities due to the supervisor’s violation of regulation, which is intentional or indifferent in nature. There might be additional state criminal liability laws facing a supervisor, far exceeding that under federal law.

Whistleblower Laws

Many supervisors may not be aware of the whistleblower laws protecting employees against adverse employment action, such as termination and demotion, when they complain to their employer about workplace hazards that would constitute protected activity. The supervisor must be informed that any such complaints must not be used as a basis for negative action against an employee, despite the supervisor’s belief that such complaints may be factually incorrect or are being made to embarrass or cause the supervisor to be subject to negative job action by the employer.

Generational Attitudes and Discipline

Because of widely varying generational attitudes toward discipline, employers face a significant task in assuring that supervisors understand the concept within the workplace and how to effectuate disciplinary action in a professional manner. An employer cannot assume that new supervisors are (1) formally trained and/or culturally attuned to confront employees who violate safety and health procedures; (2) equipped to communicate in a positive, supportive manner to an employee that certain conduct is impermissible; (3) aware of how to document the discipline that has been imposed; and (4) aware of the obligation to follow up to ensure that corrective action has been taken.

To properly train employees, employers should conduct training for supervisors centered on enforcing discipline in a positive, professional manner. Thereafter, supervisors should be observed to evaluate whether they are in fact, implementing the necessary disciplinary procedures, or whether further development is needed. Often, specific disciplinary action is required under a labor agreement or employee handbook.

Conclusion

It is extremely important that supervisors understand their role in enforcement of safety and health procedures, and the liabilities they can create for themselves or their employer if they fail to perform this duty. Paying careful attention to the career development and training of supervisors, including constructive discipline, will allow supervisors to provide appropriate rule enforcement when necessary.

Topics Legislation Workers' Compensation Training Development