By Ellen Smith
An operator cannot be held liable for an employee failing to wear fall protection if the employer supplied fall-protection equipment, trained workers in its use, and required fall protection in all hazardous situations, Review Commission ALJ Priscilla Rae has ruled.
Operators must only require miners to wear safety equipment, and if they do not, the operator cannot be held liable for employee disobedience, Rae said in vacating the citation written under 30 CFR 77.1710(g), which has identical language to the metal/nonmetal standard, §56.15005. Both coal and metal/nonmetal standards require the use of safety belts and lines where there is danger of falling.
The facts of the case were not in dispute. Lewis-Goetz, an independent contractor that offers conveyor belt fabrication and repair, had two employees performing belt splicing and vulcanizing services at a coal mine.
The MSHA inspector observed one of the employees on the belt approximately 10 to 12 ft. above the ground not wearing a safety harness or tag line. The belt was wet from falling snow at the time and it was 20 degrees Fahrenheit. The MSHA inspector issued an imminent danger order, and cited the employer for a violation of the standard covering safety belts and lines.
There was also no dispute that the employee stated that he was aware of his employer’s requirement to wear fall protection, he had been retrained on it just 13 days earlier, and he had the equipment in his tool bag located in the maintenance truck. His explanation for his failure to use it was that he was in a hurry to complete his work due to the weather and he decided not to use it.
The company argued that they cannot be found in violation of the safety belt standard as long as they impose the requirement that employees wear the safety equipment, and take reasonable measures to assure the requirements are enforced. They also said they cannot be held responsible for being guarantors against an employee’s disobedience or negligence.
The Secretary argued that the Mine Act imposes strict liability on all operators who violate a mandatory standard notwithstanding employee misconduct. But the ALJ said that the standard was not violated.
“The issue in the case is whether the language of the standard, ‘shall be required to wear,’ means the operator must only require the miners to wear the protective gear or whether it means miners ‘shall wear it’ imposing liability against the operator if they do not regardless of cause or knowledge on the part of the operator. The difference is critical,” Rae said.
Rae pointed to a 1983 decision in which “the Commission stated that the language of this regulation does not state that the operator must guarantee that belts and safety lines are actually worn, but rather says only that each employee shall be required to wear them. The Commission further held that ‘shall be required to wear’ and ‘shall be worn’ have two separate and distinct meanings, and operators do not have the duty to guarantee that employees heed its directives.”
“Operators must have a safety system in place that requires employees to use safety gear, and operators must diligently seek to enforce that requirement through such avenues as training, supervision and disciplinary measures for failure to comply,” Rae said.
In this case, the company did have an adequate policy in place requiring employees to wear fall protection, and they took adequate measures to enforce that policy, including graduated disciplinary measures including termination.
LEWIS GOETZ & CO. INC., 7/22/13, civil penalty proceeding, Docket No. WEVA 2012-1821; 20 MSHN D-2485
Ellen Smith is the owner of Legal Publication Services, publisher of Mine Safety & Health News, www.minesafety.com. She has been covering mining issues since 1987 and has won 31 journalism awards for her reporting, including the 2010 Magnum Opus Award for Outstanding Achievement in Custom Media. Ellen can be reached at 585-721-3211, or at [email protected]