Terminating Unsafe Employees: What Actions Should Employers Take?

Terminating Unsafe Employees: What Actions Should Employers Take?

Employers provide safety training, written policies, protocols – and more training. Yet some employees always seem to be at-risk and leave you waiting for the next incident.

When is it time to consider terminating the employment of “accident prone” and frequently injured employees?

Employers who want a safe workplace for their employees work hard to establish an effective safety program. A cornerstone of such a program includes evaluating an employee’s ability to comply with the safety program.

An effective safety program should focus on actions, conduct, and attitude and NOT on injuries, health conditions, worker’s comp or other legal claims, or worker “complaints”. This is a very important reason why near misses should be investigated–not just actual accidents. It indicates the intent of fostering safe employee behavior, not just avoiding expensive injuries.

Training, Transfer, or Termination?

There are many factors to consider in the process of evaluating an employee’s ability to comply with a safety program. If an employee seems to having a higher incidence of accidents and near misses than his/her co-workers, a root cause analysis should be conducted as to why this is happening.

Some things to consider are:

  1. Has the employee had access to, and completed, all applicable training and refresher training in order to stay safe in his/her particular job?
  2. Would additional training be an effective corrective action?
  3. Does the employee have access to well maintained tools, equipment, PPE and other safeguards?Is management leading by example?

If the employee seems unfit for their current job, would transfering to a lower risk activity be a feasible option?

If the root cause analysis brings you to the final conclusion that having the employee remain on the job would be unsafe to him/herself or others, and a transfer to a safer location or activity is not a viable option, then you must consider terminating their employment.

This is necessary not only to keep them safe, but also those who work with/ around them. Employers may hesitate to terminate employees, even if they consistently break safety rules, because they fear legal pitfalls and suits following such terminations.

Some legal concerns would be if an employee were to claim wrongful termination because of workers’ compensation claims, ADA and FMLA issues, whistleblower complaints, or union grievances. These are not reasons for which an employee can be terminated.

To avoid such pitfalls, employers must provide good safety training and consistent discipline for failure to obey safety rules.  Disciplinary focus should remain on actions, conduct and attitude. You cannot terminate employment simply because an employee has had an accident, or even more than one.  Documentation of training and disciplinary action is also necessary if OSHA inspectors should observe unsafe behavior during an inspection.

Some of the records that employers should maintain include:

  1. Written safety program, including a list of job- specific safety rules and procedures.
  2. Training records, including scope of training, dates, and workers trained.
  3. Documented records of progressive disciplinary action taken for violation of safety rules –verbal warnings don’t count unless there are corresponding records.

In the eyes of a OSHA inspector, it didn’t happen if it wasn’t documented. So make sure that you maintain clear, consistent and accurate documentation.

Before terminating employment, employers should consider:

  • How do we maintain OSHA’s “unpreventable employee misconduct defense”?
  • Do we have a progressive disciplinary process?
  • What are the documentation practices for supervisors?
  • Do our supervisors have guidance on terminating unsafe employees
  • What are the issues to stay focused on when it comes to employee safety?
  • Is our company’s policy working?
  • How does impact relationships with other employees when we terminate an employee for unsafe behavior?

At United Alliance Services, we provide Safety Services to help assemble and write progressive disciplinary plans according to regulatory requirements applicable to your company, facility or project.

We also specialize in a assisting our clients with ongoing compliance and have Training Courses available to your personnel for compliance for General Industry, Construction and Maritime OSHA and EPA regulations.

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