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Understanding the Unpreventable Employee Misconduct Defense in OSHA Inspections

By Chris Whitehorne, MHS, CSP, Director – Health & Safety, U.S. Compliance

As a business owner or employer, prioritizing workplace safety is crucial. However, despite best efforts, accidents or violations can still happen. In such instances, understanding your rights and defenses under the Occupational Safety and Health Administration (OSHA) regulations becomes critical. One such defense is the Unpreventable Employee Misconduct Defense. In this article, we’ll explore what the defense entails, the criteria for application, and how you can use the defense to avoid certain citations issued by OSHA.

Common Elements of an OSHA Inspection

To fully grasp the role of the defense, it is vital to understand the typical components of an OSHA inspection. These inspections can occur randomly or in response to complaints, accidents, or referrals. Inspectors typically examine workplace conditions, review safety records, interview employees, and may issue citations for violations found. An OSHA inspection can include opening conferences, document reviews (often starting with OSHA logs), site inspections, employee interviews, industrial hygiene sampling, closing conferences, and post-inspection proceedings. These inspections can vary in duration depending on the depth of the investigation.

What is the Unpreventable Employee Misconduct Defense?

The Unpreventable Employee Misconduct Defense is a legal argument that employers can use to defend against OSHA citations resulting from employee actions that the employer could not reasonably foresee or prevent. It asserts that despite the employer’s best efforts to implement safety measures and protocols, the violation occurred due to the unforeseeable misconduct of an employee.

Affirmative Defense Stance

Employers seeking to utilize the Unpreventable Employee Misconduct Defense must adopt an affirmative stance. This means they must actively demonstrate that the violation was a result of the employee’s misconduct, and not due to any negligence on behalf of the employer. Successfully asserting this defense requires thorough documentation and adherence to specific criteria.

Criteria for Applying the Defense

To successfully apply the defense, employers must meet specific criteria:

  1. Established Safety Policies: Employers must have well-defined safety policies and procedures in place that are clearly communicated to all employees. These policies should outline expectations regarding safety protocols and consequences for non-compliance.
  2. Employee Training and Awareness: Adequate training programs must be implemented to ensure that employees understand and are proficient in safety protocols. Documenting employee participation and comprehension of safety training is essential.
  3. Enforcement Efforts and Methods to Identify Violations: Employers must demonstrate diligent efforts to enforce safety protocols and identify violations. This may include regular inspections, monitoring systems, and disciplinary measures for non-compliance.
  4. Isolated Misconduct: The violation must be attributable to the isolated misconduct of the employee rather than systemic failures or negligence on the part of the employer.
  5. Absence of Employer Negligence: Employers must show that they took all reasonable steps to prevent the violation and that the misconduct of the employee was unforeseeable and beyond their control.

Documentation Requirements

Documentation is crucial in substantiating the Unpreventable Employee Misconduct Defense. Employers should maintain records such as:

  • Safety Training Records: Documenting employee participation in safety training programs, including the content covered and assessments of comprehension.
  • Safety Policies/Procedures: Clearly written and accessible safety policies and procedures that outline expectations and protocols.
  • Employee Acknowledgment Forms: Signed forms indicating that employees have received, read, and understood safety policies.
  • Incident Reports: Documentation of any safety incidents, including investigations and corrective actions taken.
  • Disciplinary Records: Records of disciplinary actions taken against employees for safety violations.
  • Audits/Inspections: Documentation of regular workplace inspections and audits conducted to identify potential hazards and ensure compliance.
  • Employee Communication: Records of communication regarding safety protocols, updates, and reminders to employees.


Navigating OSHA inspections and citations can be daunting for employers, but understanding defenses like the Unpreventable Employee Misconduct Defense is essential. By establishing robust safety protocols, diligently enforcing them, and maintaining comprehensive documentation, employers can strengthen their defense against citations resulting from employee misconduct. Ultimately, prioritizing workplace safety benefits both employers and employees, fostering a safer and more productive work environment. Should you need further assistance or have questions, reach out to your U.S. Compliance Representative.

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