I received the following note in response to last week’s article about “recognized hazards” and the OSHA General Duty clause.

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QUESTION

I want to know if the same principal about recognized hazards could be used in the hiring process.

For example, say a job candidate provides questionable answers to the safety part of the interview. The interviewer writes “possible safety problems” on the interview notes but the employer decides to hire him anyway. Later, the worker disobeys a safety rule and causes a serious incident in which a co-worker gets hurt. Could the interview notes "possible safety problems" be used to show the employer committed an OHS violation?

Rafal Tuszynski, Manager
Alberta

ANSWER

100% yes. What you’ve just described is a perfect illustration of the “recognized hazards” principle in action.

Explanation: Remember, that under the General Duty clause, employers must ensure a workplace free of “recognized hazards” even if the hazard isn’t addressed by a specific OSHA standard. One way a hazard can be “recognized” is if the employer actually did foresee it. The interview notation “possible safety problems” is evidence that the employer foresaw that this worker could pose a hazard.

At that point, the inquiry would shift to whether the employer took reasonable measures to deal with the hazard posed by the dangerous worker. If it turns out that the worker was allowed to perform operations that endangered co-workers without precautions, e.g., warning co-workers that the guy was dangerous or assigning a supervisor to keep an eye on him, OSHA could justifiably cite the employer for violating the General Duty clause.

Since you’re from Canada, I’ll translate this to a due diligence context. Due diligence (and Canadian OHS general duty clauses) also require employers to take reasonable measures to prevent foreseeable risks. Because the hazard posed by the worker wasn’t just foreseeable but actually foreseen, the same question would arise: Did the employer do enough to counteract the danger? If the answer is no, the employer won’t be able to prove due diligence.

Glenn Demby

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