Employee Independent Action - What Is It?
Joe Whiteman, director of safety services

A great question was raised during last month’s Safety Roundtable on Root Cause Analysis. “What do you do after you have performed a root cause analysis and identified the cause was an employee knowing better, but simply choosing to cut a corner or do the wrong thing”? The follow up question was “What if an employee suffered an injury from that choice and OSHA had to get involved?" This situation is known as an employee independent action. Not many on the call were familiar with the Employee Independent Action Defense (EIAD).

Employers may only use EIAD if the cause of the injury to the employee was an independent act of that employee, and the employer, in this instance should not be held liable. Employers may utilize this defense only after they have been cited during the appeals process. Before you decide this is your course of action, companies should ask themselves - - was everything the law required implemented and complete, and was it the employee alone who did not follow company policies and procedures? There are five to the EIAD that must be met. If you are missing just one of the five you will not be successful at applying this defense and should not pursue it.

Five elements of the Employer Independent Action Defense:

1. The employee had the experience and was trained on the job.
2. The employer has a well-defined safety program in place.
3. The employer has a policy of sanctions against employees who violate the safety program.
4. The employer must have an effective enforcement program in place.
5. The employee caused the incident or safety violation which he or she knew went against the employer’s safety requirements.

It’s not an easy feat for an employer to meet all five elements. As you can see, documentation is key and having a well written safety, training, and discipline policy, along with meticulous recordkeeping, is crucial. It is good to know that this is a potential defense when a legitimate situation presents itself. Focus, however, should be on the front end; being proactive with employees, ensuring they are fit for the task, present with a safety mindset each day, and have the proper training and tools for the task at hand.