Resolving to carry out safety improvements in 2020

It happens to the best of us. We make New Year’s resolutions with all the best intentions. But then other things begin to capture our attention and take priority, and the resolutions go by the wayside.

Something similar can occur with your safety program. You may feel you have a great idea and that there is strong momentum for making improvements. Maybe it’s a new procedure or routine to strengthen your safety training. You may put a lot of effort into fleshing out the idea, getting management support, drafting the forms and materials needed, and rolling out your new initiative to the workforce.

But, over time, everyone’s focus lessens and, gradually, the initial diligence in carrying it out falls by the wayside. You end up with inconsistent use or workers not following the new procedure at all.

Intentions & actions

Continuous improvement is an important and necessary part of a solid safety program.

Some of the ideas you develop may take hold and become a key part of what workers do for safety on an ongoing basis. Others you may try out, but later decide to discard as not delivering the desired objectives. Still, other ideas will fall into that category of “has-been resolutions,” which never got a good chance to become integral to the work before they are forgotten or lost in the mix of daily tasks.

From a legal perspective, these good intentions gone amiss can lead to trouble. The best safety idea is only as good as its execution.

In other words, the good intention is not enough – what really matters is how well the workforce can carry out the plan in the long run. Having a procedure in place that is not followed can create the worst kind of evidence in a safety case.

Simplify & solve

We sometimes are asked to advise companies on whether a certain policy or procedure they want to put into place will pass legal muster. Usually, we find that the company’s plans would comply with Mine Safety & Health Administration (MSHA) regulations – they may even go above and beyond what MSHA requires.

In the midst of advising the company, though, we will consider more than just “does this comply with the agency’s regulations?” We also think about whether what they plan to do looks sustainable.

In other words, is what they are planning so elaborate and detailed that, although it looks good on paper, there is a good chance they will have trouble with internal compliance with this new procedure? If the answer is yes, we might suggest they consider simplifying what they are planning to implement or including auditing or regular refresher training to improve the odds of continued compliance.

Internal compliance also can become a problem where the new procedure is vague or the training is unclear. It is important that everyone hear and understand the same thing about what they are expected to do.

MSHA and plaintiff’s attorneys in injury cases are looking for evidence that the company failed to comply with its own requirements. (We would argue that, for MSHA, this is only relevant where it is related to violating one of MSHA’s standards.) The theory is that having identified a risk and created a procedure to address it means the company has set a standard of care for itself. If its employees fail to meet that standard of care by failing to follow the procedure, especially where there was management knowledge or involvement, then the company is at fault.

What we really are after here is to have in place a comprehensive, effective safety program that doesn’t just look good on paper, but that is carried out fully by the workforce. When you are developing new procedures for safety, keep in mind that they have to be designed in a way that will facilitate people’s willingness and ability to follow them. Sometimes, fewer steps in doing a task or filling out a simpler form will still provide the desired safety result.

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Bill Doran and Margo Lopez are with the national labor, employment and safety law firm Ogletree Deakins. They can be reached at william.doran@ogletree.com and margaret.lopez@ogletree.com