Keep your workplace injury free to reduce the risk of prosecution

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As an employer, you want to protect your most precious assets. Most of us would agree that our most valuable assets are the folks who clock in and out every day. If you’re in the same boat, you probably work tirelessly with your risk management professional to make sure those employees go home safe each night.

Inevitably, our best laid plans are eventually hampered when an employee gets injured on the job. That’s where workers’ compensation insurance comes in.

The medical provider works with the carrier to rehabilitate the employee, and your risk manager monitors the situation and works to reduce reserves and close the claim as quickly as possible. If all goes according to plan, your employee is back to work soon and the most you have to worry about is a slight increase in your experience modification down the road. But what if the injury is more severe, or results in a fatality?

While not an everyday occurrence, an increasing number of serious workplace injuries are being referred to district attorneys for criminal prosecution. Cal/OSHA has been stepping up efforts to punish individuals and companies in criminal proceedings which can include both fines and jail time depending on the circumstances.

Business owners might be surprised to read the following section of the California Labor Code: “Ch. 4, S6425: Any employer and any employee having direction, management, control, or custody of any employment, place of employment, or of any other employee, who willfully violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, and that violation caused death to any employee, or caused permanent or prolonged impairment of the body of any employee, is guilty of a public offense punishable by imprisonment in a county jail … or by a fine …”
The text goes on to outline the allowable fines and penalties associated with the offense depending on relevant circumstances such as the nature, extent, gravity of the violation and prior history of violations. Let’s take a closer look at some of the cases winding their way through criminal proceedings right now:

Plastering Company: After two employees were electrocuted (one fatally injured), a crew supervisor has pleaded no-contest to two misdemeanor charges, and, in a deal with prosecutors, will serve three years of probation and 240 hours of community service. Two other company officials are scheduled for pre-trial hearings, while Cal/OSHA has also cited the company for six violations and almost $165,000 in penalties.

Civil Construction Company: While hoisting two employees on a platform by crane, rigging failed, causing a double fatality loss. The supervisor responsible for the maneuver was initially charged with involuntary manslaughter but later pleaded to lesser felony and misdemeanor charges for violations of the labor code. That supervisor was ordered to pay restitution to the families of the deceased workers and to perform community service. Charges are still pending against the company, which carry penalties in excess of $100,000.

General Engineering Company: Both the company and a foreman agreed to diversion, rather than jail time and fees, associated with the accidental death of a crewmember in 2015. Charges included six counts of Labor Code violations, including willfully and knowingly violating safety orders within the code. The company was ordered to pay restitution of $85,000 to the family, and has $38,000 of penalties still working through appeals with Cal/OSHA.

While an increased emphasis has been placed on criminal charges in cases of serious and willful violations leading to injury or death of employees, civil penalties from Cal/OSHA have also been dramatically increased in recent years.

In a 2017 Bill (SB96), the Legislature increased the amount of several penalties for violations of health and safety laws. Among those, we find minimum and maximum fines associated with willful or repeat violations increased to roughly $8,900 and $125,000 respectively. This is an increase of 78 percent from prior minimum and maximum penalties.
In light of stricter enforcement, higher penalties and an increase in cases of criminal charges, it is critical now more than ever to take proactive steps to mitigate the negative impact of workplace injuries. A proactive approach to this effort will be aligned with your business goals, designed to be manageable and not overly burdensome on your time and budget, and will normally require the assistance of a professional risk manager such as your commercial insurance agent.

As you develop a plan of action don’t forget to include the three pillars of a well-designed safety program which are training, documentation, and buy-in at all levels.

Training should be regular, pertinent, and dynamic. To be most effective, consider safety meetings non-negotiable and like clockwork. This sets the tone that your company values its employees and therefore demonstrates a commitment to their safety by investing resources to that end.

Effective safety coaching should be delivered on procedures and tools that are common to your enterprise. A quick search of common workplace injuries specific to your industry should yield hours of good topics for discussion. Don’t fall victim to safety training just for the sake of safety training. If you want to reduce workplace injuries, then don’t hand out a pamphlet that will end up in the washing machine by the end of the week. Talk to your employees about the work they are proud to do, physically demonstrate the best way to do that work and stay safe at the same time, and be sure to use real life examples (even from your own company) of what happens when safety isn’t a priority.

Documentation is absolutely critical. In any workplace accident investigation, authorities will first determine what happened, then ask for documentation that training was performed on the proximate cause of the injury.

Proper documentation will include the dates of training, copies of the subject matter and an attendance sheet including each employee’s signature acknowledging receipt of the training. Because there is no statute of limitations on records requested by Cal/OSHA, best practice is to keep training documentation on each employee for as long as that person is employed.

Lastly, getting buy-in at all levels will help ensure a culture of safety and maximize the return on investment in your program.

As an owner, be sure to engage the rank and file, managers, and yourself in the design and implementation of your safety program. If you’re not engaged, the message will be that you lead by power rather than by influence. Since “do as I do” is much more effective than “do as I say,” be sure that your behavior models the training and rules that you and your employees agree to.

– Nelson Aldrich is an insurance broker with WISG Insurance, headquartered in Turlock. He can be reached at [email protected].

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