A Fortune magazine article asks the question, “What happens to your employer if you die at work?” The article details the work-related death of a Walmart employee. The author then makes his point:
The ugly truth is that when it comes to ensuring your safety on the job, your employer has very little to lose.
Since that Fortune article, some Federal worker safety standards have actually decreased. And, in Alabama, we’ve annually seen an effort to reduce already unjustly low workers’ compensation benefits (including basic medical care) needed by injured workers. I’ve written in prior years about this annual effort to lessen basic benefits. I’ll continue to oppose those unjust proposals.
The title of this post asks — where is the employer incentive to keep workers safe. Why did I not mention employees? Well, Alabama workers already face substantial safety incentives under our workers’ compensation laws. Workers forfeit the right to basic benefits in certain cases involving a willful violation of a safety rule, horseplay, a refusal to use provided safety equipment, or intoxication. I agree with safety incentives if applied fairly to all sides. While not debating worker penalties, I will say this — Injured workers often face trumped-up and fake defenses based on these safety issues. It is not unusual for the insurance company’s attorney to plead the existence of some safety rule that never existed or never applied prior to the injury.
My question here is this — Should safety incentives be a two-way street? They should. Where is the real incentive for companies to act safely? Some states award extra benefits if the injury is due to the company’s willful violation of a safety rule. After all, in the more than two decades I’ve handled workplace accident claims, I can honestly say that most safety violations occurred because supervision put a priority on production over safety. Most workers follow the lead or instruction of management.
If we really want to reduce workplace accidents and injuries, “safety” must be a two-way street. Safety must be a real issue for management. Yet, Alabama law places almost all the burdens on front line workers while providing all the excuses to the employers. Here are a few examples:
- Safety Equipment. If a worker refuses to use required and available safety equipment, it can be a defense to his Alabama workers’ compensation claim. Most workers would happily use functioning safety equipment if available. I could write, at length, about my prior cases where safety equipment was not provided or simply did not function. A couple years ago, I represented a worker on a lift. Suddenly, the structure around him caught on fire. His lift had a fire extinguisher. So, he grabbed it. Bad for him — it was depleted and inoperable. In another case, a boilermaker client was gassed by a chemical because the facility did not provide lockout equipment to another worker in the plant. These are just two of hundreds of examples from my prior cases. Why should workers be the only ones penalized for a safety equipment issue? We could use existing rules, like those of OSHA, so all companies are clear as to what equipment must be provided.
- Horseplay. If a worker in Alabama is injured while engaging in horseplay, he can be denied valuable workers’ compensation benefits. What about the employee innocently hurt by the horseplay of others? That does happen (and often). I’ve represented employees in exactly that scenario. Sometimes, supervisors overlook, tolerate or even encourage dangerous horseplay. It’s usually the innocent bystander who gets hurt. Should an employer be penalized for knowingly allowing an employee to engage in horseplay that endangers others?
- Safety Rules. If a worker intentionally ignores a clear safety rule, it is a defense to his workers’ compensation claim. It should be. Should workers be the only ones penalized for violating clear safety rules? Should a company be penalized by paying additional benefits if management disregards clear rules causing a worker injury? This could also be tied to established rules, like OSHA. Some states, like Wisconsin, apply penalties to both sides. Why does Alabama favor only one side?
The men and women who work every day are the greatest resource in Alabama. If we value them, we must make safety a two-way street. During the last two decades, I’ve helped injured workers at trial in counties across Alabama. Their cases should be fully prepared. Our workers’ compensation law treats injured workers unjustly in many ways — medical treatment, disability benefits and safety incentives/penalties. As for safety, justice requires incentives and penalties apply to both employees and their employers.