FVF Law is a values driven law firm.
Workplace safety is a matter of leadership. If industry leaders do not prioritize the health and safety of workers by implementing and monitoring safety programs, contractors, supervisors, and workers at all lower levels will assume that cutting corners to save time and money is permissible. Many if not most accidents and workplace injuries are preventable, and could have been avoided with the right standards and practices. Important to note is that workers are not themselves responsible for creating or maintaining safety policies; rather, their responsibility is to follow clear instructions designed to ensure safety in all aspects of the job.
“Standard of care” is a concept that industry- and government safety authorities rely on to assess whether employees are adequately protected from injuries and illnesses while on the job. The central idea is that employers are entrusted by society with the health and safety of those who work for them. As noted by legal scholar Jonas Lemos, liability must be broadly conceived as part of a standard of care, since “the running of modern companies makes participants’ errors inevitable.” 1 Accidents happen, but employers are charged with an important duty to minimize and control them.
Standard of care consists specifically of compliance with the requirements set forth by the Occupational Safety and Health Administration (OSHA). Employers who adhere to a standard of care take reasonable steps to ensure employees’ safety and health, including:
Employers who do not comply with the standard of care through these protocols and programs may be liable for injuries sustained by their employees on the job.
For several decades, a troubling trend in the investigation of workplace accidents has been to focus predominantly on isolated actions and human error. It is a “blame culture” where the tragic injuries of unfortunate individuals are pinned on scapegoats rather than thoroughly investigated. 3 For a large organization that depends on a high pace of productivity, it is most cost efficient to blame an individual person and remove them from the organization. For example, a company may opt to terminate a supervisor’s employment rather than to accept responsibility for an overall culture in which workers are put at risk. The focus on human error and a single person’s actions sometimes means that as soon as an incident investigation discovers a reasonable human error, there is little or no further investigation of the complicated contextual factors and circumstances that lead to severe injuries. There is little or no “system safety analysis,” sometimes referred to as “root cause analysis.” 4 There is limited consideration of the workplace as a “sociotechnical system” involving multiple organizations and teams. 5 The worker or the supervisor may be held accountable, and perhaps rightly so. But the culture of safety and its failures are rarely considered in a larger perspective. This means that limited attention is paid to trends and systemic weaknesses, particularly to how accidents may be prevented in the future and worker safety ensured.
Since the establishment of OSHA in 1970, the rate of personal injury in workplace settings has decreased. OSHA issues specific guidelines for worker safety measures, including training programs, scaffold safety assessment, safety inspections, etc. Although OSHA is one of the most important organized efforts to ensure worker safety, potential hazards exist for which there are no adequate OSHA standards. For this reason, if an accident investigation concludes that no OSHA standard was violated, this does not necessarily mean that the workplace itself was reasonably safe. These instances require assessment by a qualified legal professional and a workplace safety expert.
The Associated General Contractors of America has since 1927 published the Manual of Accident Prevention in Construction, which is “intended to aid general contractor, specialty contractors, and subcontractors in the development of a safety and health program.” 6 The National Safety Council, the nation’s leading advocate for worker safety and health, was chartered by Congress in 1953. It has nearly forty-thousand member organizations and corporations from multiple industries. The National Safety Council publishes the Accident Prevention Manual for Industrial Operations with guidelines for maintaining safety in the construction industry. One of the central principles of the National Safety Council is that “all accidents are foreseeable, predictable, avoidable and preventable.” 7 Given this, accidents for which no one assumes responsibility are instances when adequate prevention was neglected. In these instances, legal expertise and competent representation by a personal injury attorney are critical.
1 Jonas Lemos, “Liability for Work Accidents,” Curentul Juridic 17 (2014): 126.
2 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 43.
3 R. B. Whittingham, The Blame Machine: Why Human Error Causes Accidents (Burlington, MA: Elsevier Butterworth-Heinemann, 2004).
4 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 23.
5 Dong Zhao, et al., “Sociotechnical Systems of Fatal Electrical Injuries in the Construction Industry,” Journal of Construction and Engineering Management 142 (2016): 04015056.
6 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 47.
7 Vincent A. Gallagher, Worker Injury Third Party Cases: Recognizing and Proving Liability (Lanham, MD: Bernan Press, 2017), 55.
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