Safety training is a fundamental requirement of occupational health and safety laws. But providing safety training isn't enough to ensure compliance. You must also be able to document your training efforts. And even that is not enough. Employers must be able to prove not simply that they delivered training to their workers but that they took steps to verify its effectiveness.

What the Law Says

As we noted in Part 1 of this series, there are at least 100 different OSHA standards that require employers to furnish training to their workers. In addition, at least two OSHA standards say employers must verify that workers understand the training:

• The standard for process safety management of highly hazardous chemicals requires employers to make sure each worker "has received and understood" the training they've received. Employers must also keep a record of "the means used to verify that the employee understood the training."
• The personal protective equipment standard requires workers to "demonstrate an understanding" of their training and ability to perform a job function before they can begin working.

An internal OSHA manual that tells officials how to conduct inspections instructs inspectors to check how employers evaluate worker proficiency when it comes to certain training programs, such as the one for permit-required confined spaces. In other words, the inspector is supposed to verify that the employer has a method for ensuring that its workers understood what they were told during training sessions dealing with the topic.

What the Law Means

Some standards don't expressly require verification of the effectiveness of training. But this is clearly the way the OSHA officials who enforce the law and the judges who rule on it interpret it. Thus, when OSHA says you must provide training, it means you must provide effective training.

Just holding tool box talks and passing out safety instructions doesn't get you all the way there. In the words of a Canadian court in a recent case from the province of Alberta, "it is not enough for [an oil company accused of violations] to orally order workers to conform to certain safety procedures and send them pamphlets that reinforce that order. If that were so, the accused could fulfill its [training] obligations under the OHS Act by holding meetings and distributing pamphlets" [R. v. Ledcor, [2005] A.J. No. 766, June 27, 2005]. Although this case was Canadian, the principles expressed apply equally on both sides of the border.

Concrete Company Fined for Not Verifying Training

In light of this interpretation of OSHA training requirements, many companies that think they provide adequate or even world class training and work instructions, have their complacency shattered and get socked with fines for not verifying that their programs are really effective and that workers are absorbing what they were taught.

Example: A crane operator and rigger who was less experienced were moving a stack of concrete pilings, each weighing approximately 6,000 pounds. Because his view was obstructed, the crane operator simply placed the pilings where the inexperienced rigger told him they should go. After he drove away, all of the pilings fell. When he left his crane to investigate, he saw that the rigger had been crushed to death. OSHA fined the company for failing to implement adequate training and work rules to ensure that workers knew how to perform their jobs safely.

The company had given each new worker a safety manual and on-the-job safety training. It also held weekly tool box safety meetings and thought it was doing enough to make sure workers understood how to perform their job safely. But it never tested them on what they knew. During the five months that the inexperienced rigger had been on the job, he received at least one written reprimand for putting too many pilings on a stack and creating the risk that they would fall. The company also wrote him up for safety lapses on at least two other occasions. But it never gave him additional training because nobody knew that he didn't know how to do his job properly -- they just thought he was slacking off. If someone had taken the time to verify whether the rigger understood the correct way to stack concrete pilings, the incident could have been avoided [Secretary of Labor v. Gary Concrete Products, Inc., OSHRC Docket No. 86-1087 (May 16, 1991)].

Signed Acknowledgement Isn't Necessarily Proof

Some companies ask their workers to sign a form after training sessions acknowledging that they understood the lesson and will put it into practice. Don't let these forms lull you into a false sense of security. "Most workers will just sign these things without even reading them, let alone making sure that they understood everything you told them," says a health and safety attorney in New York City. This is especially true if the training and instructions are complicated.

Example: A worker was hit on the head with a falling bucket while installing a storm pipeline in a drainage ditch. OSHA inspected and cited the employer for not having an adequate protective system to guard against cave-ins. The employer contested the citation. Besides, it argued, if any violation occurred it was because the foreman didn't follow safety rules. The court upheld the citation. The employer did in fact put its trenching rules in the safety manual and required foremen to sign a form acknowledging that they read and understood the manual. But the rules were complicated and a signed acknowledgement form wasn't enough to prove they were adequately communicated, said the court [Complete General Const. Co. v. OSHRC, 2005 U.S. App. LEXIS 5197 (6th Cir.), March 29, 2005].

Conclusion

The bottom line: Attendance sheets showing that safety talks were held, signed forms acknowledging that workers "read and understood" written documents and similar materials may demonstrate that training was provided but don't prove that it was effective. How should employers document the effectiveness of their training programs? We'll answer that question when we wrap up the series next week.

THE CANADIAN PERSPECTIVE

By Glenn Demby

The principles described above apply in Canada. But there are some subtle differences between OSHA and Canadian OHS laws. The latter impose two kinds of training requirements:

• A general requirement that says employers must ensure that workers are adequately trained in health and safety; and
• More detailed requirements meant to ensure that workers understand and are prepared to deal with the hazards they can expect to confront on the job. These obligations vary based on the kind of task, machinery, equipment, process or site involved. For example, in Ontario, employers must "ensure that a hazardous material is not used, handled or stored at a workplace" unless workers understand how to identify the material, the hazards associated with the material, and how to protect themselves against those hazards.

I'm not aware of any Canadian OHS laws that specifically require employers to verify that workers understood the training and instructions they receive the way the two OSHA standards cited above do. But this is clearly the way regulators, prosecutors and judges interpret the law. Thus, like their U.S. counterparts, Canadian employers must provide not just training, but effective training. (See the Ledcor case from Alberta cited in the feature article.)

MEMBER QUESTIONS

Documenting Training Provided By Outside Trainers

Question

With respect to your articles on documenting workplace training, I recently put an employee through some intensive mobile crane operator training to prepare him for his NCCCO certification testing and the only thing I got from the training provider was an invoice. Is the training provider in this case required to give me (the employer) at least a copy of my employee's training documentation or is it up to me to ask for/demand it? 

Rob Vetter
Technical Director
IVES Training Group

Answer

Hopefully, outside providers that you hire to train your workers will furnish you documentation without being asked. But if they don't - and there's no guarantee they will - it's up to the employer to ask for it. I would also advise employers to take the extra step of adding language to the contract specifically requiring the trainer to give you appropriate documentation of the training it provides.

*****

Question

Me again with another question about training records. When a given company/entity foots the bill to send an employee/representative through a training program, who exactly owns any documentation/certification/qualification records issued by the training provider?

The reason I ask is, being a training provider it has always been my feeling that whomever paid for the training owns the documentation. If the trained employee leaves the company and asks for his/her training documents, the company has every right to refuse. In which case if the person then came to the training provider for a copy of the documents and records they issued to the company, would the training provider be legally able to issue a copy or would they need the employer's permission?

Rob

Answer

The client company and outside trainer should each keep copies of the training records for the sake of limiting their own liability risks. In that case, the issue of ownership of the records would be moot. I don't see why an employer wouldn't furnish an employee a copy of his own training records. And there might even be a legal requirement that it do so under the terms of a collective bargaining agreement or to the extent that the request is made on the employee's behalf by the company's health and safety committee. If for some reason the employee had to ask the trainer for the records, I don't see any reason why the trainer couldn't honor the request.

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