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Safety citations against a company should stand even though an employee disregarded safety rules prior to being exposed to toxic fumes, the Seventh Circuit Court of Appeals in Chicago ruled Wednesday.
The court denied an appeal by Dana Container Inc., a unit of Avenel, New Jersey-based The Dana Cos., of a finding by the Occupational Safety and Health Review Commission upholding citations issued against the cleaning and transportation company by the Occupational Safety and Health Administration for the January 2009 incident.
According to the ruling, the employee disregarded safety rules by entering a cleaning tank without attaching himself to a retrieval device or following the entry permit procedures – in contrast to OSHA rules – and had to be rescued by the local fire department after being found unconscious.
“It is not hard to find people who complain about government regulations, but the regulations often exist because people do not take optimal precautions on a voluntary basis,” the court said in its decision. “This case illustrates that problem.”
The appeals court found that the commission was justified in concluding that there was a failure to enforce Dana’s safety program, citing evidence of permit deficiencies and a lack of disciplinary or follow‐up action. In addition, Dana’s argument that the commission erred by rejecting the “unpreventable employee misconduct” defense also fell short, the ruling stated.
“To use the defense, an employer must show that it took steps to discover violations of its safety rules and that it effectively enforced the rules when violations were discovered,” the court said.