Observe, Correct and Discipline employees for unsafe workplace behavior.

1. Terminating Unsafe
Employees
Presented by Mary E. Wright
Ogletree, Deakins, Nash, Smoak & Stewart, PC
415.536-3431 mary.wright@odnss.com

2. Employer’s Duty
To maintain & provide:
A safe working environment.
Safe systems of work.
Facilities for the welfare of all
workers.
Any information, instruction,
training or supervision needed to
ensure workers safety.

3. Identify Hazards
A hazard is anything with potential to cause injury, illness
or damage.
Identified by:
Observing Workers Tasks.
Speaking to Workers.
Using Safety Checklist.
Review Manufacturers Info.
View injury Records.

4. Assess the Risk
A risk is the likelihood of a hazard causing
injury, illness or damage to health.
Assessed by:
Potential Impact of hazard.
How likely is the hazard to cause someone
harm.

5. Reduce Risk
Aim to remove a hazard completely. If this is not
possible a ‘hierarchy of control’ exist.
 Eliminate the Hazard
 Substitute the Hazard.
 Isolate the Hazard.
 Use Engineering Controls.
 Use Administrative Controls
(policies/procedures/training).
 Use Personal Protective Equipment.

6. Employee’s Duty
Ensuring own personal
health & safety, and that of
others in the workplace.
Complying with any
reasonable directions given by
management relating to health
& safety.

7. Meet Jack
The Accident Prone Employee
Jack Is Lazy.
Jack Is Oblivious.
_______________
Jack Thinks He Knows Better.
Jack Is Angry.

8. What’s the Price for
Not Knowing Jack?
•U.S. Department of Labor's OSHA proposes $138,500 in penalties against Cullman, Ala., metal fabricator for 31
safety and health violations
•U.S. Department of Labor's OSHA proposes $65,450 in penalties for American Air Specialists of Mississippi for
willful and serious safety violations
•U.S. Department of Labor's OSHA fines Texas Linen Co. more than $149,000 for alleged safety and health
violations
•Broome County, N.Y., manufacturer faces additional fines exceeding $109,000 from U.S. Labor Department's
OSHA for recurring and uncorrected hazards
•Human Toll: The Life, Health andWell-Being of Employees and Community
•Reality Check: Low Morale, Job Loss, Bad Publicity, Consumer Backlash

9. Creating a Defense
“Unpreventable Employee
Misconduct”
A violation of OSHA Regulations occurs.
DOSH audits your company.
No fine against the company if it can prove
that the violation was the result of
unpreventable employee misconduct.

10. DOSH Directive
5.10
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:
(ii)A thorough safety program, including work rules, training and
equipment designed to prevent the violation.
(iii)Adequate communication of these rules to employees;
(iv)Steps to discover and correct violations of its safety rules; and
(v)Effective enforcement of its safety program as written in practice
and not just in theory.
(copy of directive attached to handout)

11. How to Discipline Jack
and Support a Defense
Observe
Report
Investigate
Discipline
Terminate

12. Observe

13. Human Resources is Responsible For:

14. Supervisors* are Responsible For:
(*after consulting HR)

15. Safety Wardens, Supervisors or HR
are Responsible For:

16. REPORT

17. Accident, Incident and Near Miss
 Accident: an undesired event or sequence of events
causing injury, ill health or property damage.
 Near Miss: an incident, where given a slight shift in
time or distance, injury, ill-health or damage easily
could have occurred but did not this time.
 Incident: an unplanned, undesired event that hinders
completion of a task and may cause injury or other
damage.

18. Policy and
Procedure
Any accident, incident or “near miss,” no matter
how slight the injury or damage, must be reported
to the department supervisor, safety warden or
human resources representative for immediate
action.
The supervisor or safety warden is responsible for
taking appropriate follow-up action, including
getting medical attention, completing an
investigation report and recommending or
implementing appropriate corrective action.

19. FIRST REPORT OF
ACCIDENT, INCIDENT OR NEAR MISS
 Department
 Date
 Name of Employee
 Name of Departmental Supervisor
 Nature of Occurrence (A-I-NM)
 Why a Near Miss?
 Did an injury, illness or property damage occur?
 Any emergency action taken?
 Name of reporter.

20. PURPOSE
 To help identify the causes of an incident,
accident or near miss.
 To prevent similar occurrence in the future.
 To initiate documentation of disciplinary action.
 To support required report to governmental
agency.
One person’s actions can
jeopardize the safety of others in the workplace.

21. Investigate

22. Goals of A-I-NM
Investigations

23. Purpose of A-I-NM
Investigations

24. The Investigation Procedure

25. Be a Journalist
Not a Columnist
Who Where
What Why
When How

26. Accident Investigation
 Name of Injured Employee  Description of Injury or Illness
 Date of Accident (accident type, injury type and

body part)
Investigator’s name
 Contributing Factors
 Date of Investigation
 Description of Work Area
 Job Title
 Injured Employee’s Account
 Time of Accident
 Witness’ Account (Name, Title,
 Department address, phone number)
 Location of Accident  Basic causes
 Name of Witnesses  Corrective measures immediately
 Description of Accident implemented
 Task Being Performed  Corrective measures to be
 Equipment, Tools, Personal implemented to prevent recurrence
Protective Equipment, Procedures
Being Used

27. Discipline

28. Disciplinary Program
A disciplinary program can be developed with t he assistance of the personnel
department and your company’s counsel. The program can be effective for
addressing “repeat offenders” who often account for a high percentage of accidents,
incidents and near misses.
The nature of the disciplinary action
should be in line with such factors as:

29. Getting Back to Jack
Hypothetical 1: Jack is Lazy
Acme manufactures paper products. Huge paper rolls are
transferred from the manufacturing floor to the storage
room by forklift. There is a lot of noise and significant levels
of activity on the manufacturing floor. Employees who are
not scheduled to work are not supposed to be on the floor.
The manufacturing floor is set between the canteen and the
break room. It is quicker to cut across the floor to get from
the canteen to the break room (as opposed to walking
around the outside of the building). Jack frequently cuts
back and forth across the manufacturing floor on his break.
Forklift drivers complain.
Can the supervisor write Jack up for a safety violation?

30. Hypothetical 2: Jack is Oblivious
Jack attends safety training at Acme. He knows the rules but
believes that they do not apply to him. One day, Jack is working by
himself checking inventory in the loading dock. He figures it is alright
to wear ear buds and listen to music even though he knows such
devices are forbidden in the workplace. Jack does not hear the shift
change buzzer and does not realize that forklift operators are now
removing product from pallets stacked overhead. A pallet falls to the
ground next to Jack.
The supervisor sees this and pulls Jack off the floor. He wants to
write the forklift operator up for the damage to the pallet. Can he
write Jack up, too?

31. Terminate

32. Hypothetical 3:
Jack Thinks He Knows Better.
Jack has accumulated years of seniority and been
through countless safety sessions. Acme operates a
drill press. While helping an associate attach a pipe to
one of the presses, rather than walk around the
machine, Jack stretches across the machine's
conveyor belt, which interrupts an infrared beam and
causes two probes to descend. The probes pin Jack’s
colleague to the conveyor belt, causing non-life
threatening injury.
Management wants to fire Jack. Can they do so?

33. Handbook, Contract and Precedent
 What does Acme’s handbook say?
 What does Jack’s contract say?
 Is Acme a union shop?
 What does Acme usually do?

34. PROGRESSIVE DISCIPLINE
Typical Progression:
First Offense: counseling,
retraining and/or written warning
Second Offense: suspension
Third Offense: Dismissal

35. Hypothetical 4:
Jack Is Angry.
Jack was denied a promotion. He is resentful and angry.
Jack, thinking only to cause a brief work stoppage, removes
a nut here, a belt there from his machine. Finally the
machine overheats and fills the work area with non-toxic
fumes. The building is evacuated and the fire department
determines the cause. A co-worker comes forward to report
having seen Jack remove the hardware from his machine.
Management writes up the witness for not reporting the
conduct in time to prevent the property damage, but they
want to fire Jack. Can they do so?

36. “CONFIDENTIAL: PREPARED AT THE
REQUEST OF COUNSEL,” and give it to
HR for storage in a confidential file.
 When should you hold the termination meeting?
 Where should the meeting take place?
 Who should attend the meeting?
 What to have ready when you go into the meeting.
 What to say in the meeting.
 Returning company property.
 Packing Up the employee’s personal stuff.
 Saying Goodbye to co-workers.
 Computer Access should be terminated.
 Severance by contract or in exchange for a release.
 Documentation of the entire process.