In a decision that could have national implications, the Oregon Court of Appeals this month made it more difficult for Oregon OSHA to use misconduct by a supervisor as the basis for issuing a citation.
For more than 10 years, Oregon OSHA has taken the stand that if a supervisor personally committed a safety violation – even if it was the result of misconduct – then the employer could be assumed to have “knowledge” of the hazard. According to a summary of the issue by the Cummins Goodman Denley & Vickers law firm, it did not matter if “an employer had a good safety program that included training, enforcement and monitoring efforts.”
But, the law firm said, in OR-OSHA v. CC&L Roofing the Court of Appeals found that “evidence pertaining to the effectiveness of an employer’s safety program in the context of a violation of the employer’s safety rules by an employee, hourly or supervisory, may be properly considered in evaluating whether OR-OSHA has met its burden of proving that the employer ‘reasonably could have known’ of the violative conduct.”
“What does this case mean? The Court’s ruling in CC&L Roofing should encourage employers to develop and maintain a comprehensive safety program that is effective in practice,” the law firm said. “Not only do such programs work to protect employees – the primary goal – but they also make for the realistic opportunity for employers to defend against liability for acts committed by any employee that are prohibited under the employer’s safety rules.”
In addition, the law firm said, “this case can be used as authority in jurisdictions other than Oregon because much of the authority that the Court relies upon comes out of cases dealing with federal OSHA citations.”
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