Supervisor Has Duty to Enforce OSHA Compliance

The workplace is undergoing a demographic change as “Baby Boomers” – born between 1946 and 1960 – retire and are replaced by Generation X (1961-1982) and Generation Y/Millennial Generation (1983-2001).

This transition is critical in occupational safety and health compliance, specifically, the legal duty of supervisors to enforce OSHA compliance.

Because the employer is typically a corporation, it must act through its employees. Supervisors – who usually have the authority to hire, fire, enforce discipline or enter into contractual relationships – are considered under the law to be “agents” of the employers with authority to create legal liability against the employer for their actions. This includes a supervisor’s negligent or intentional acts, which may constitute violations of the OSHA Act or regulations.

Many supervisors do not realize they occupy this status or the extent to which their actions, or their failure to take action when necessary, can create legal liability. Additionally, many supervisors are unaware of their own exposure to personal financial or criminal liability.

Employers must provide training regarding the operation of laws that will be involved with the supervisor’s day-to-day interaction with employees.

Supervisors must be informed of their roles as the primary enforcers of safety and health policies. It is critical that they know how to identify hazards and violations and impose written or verbal discipline on employees who have violated policies. Supervisors must receive in-depth training to be capable of identifying workplace hazards and the OSHA regulations or employer policies that are applicable, and employers must document this training.

Failure to identify hazards and enforce safety and health policies can lead to the issuance of civil citations by OSHA, with significant monetary penalties against the employer. Training must include the topic of employer and supervisor criminal liability under federal law for fatalities due to the violation of regulation. There might be state criminal liability laws facing a supervisor, far exceeding that under federal law.

Many supervisors may not be aware of whistleblower laws protecting employees against adverse employment action, such as termination and demotion, when they complain to their employer about workplace hazards that would constitute protected activity. Such complaints must not be used as a basis for negative action against an employee, despite the supervisor’s belief that such complaints may be factually incorrect or are made to embarrass or cause the supervisor to be subject to negative job action.

Because of widely varying generational attitudes toward discipline, employers face a significant task in assuring that supervisors understand the concept within the workplace and how to effectuate disciplinary action in a professional manner. An employer cannot assume that new supervisors are (1) formally trained and/or culturally attuned to confront employees who violate safety and health procedures; (2) equipped to communicate in a positive, supportive manner to an employee that certain conduct is impermissible; (3) aware of how to document the discipline that has been imposed; and (4) aware of the obligation to follow up to ensure that corrective action has been taken.