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Case Examples

Safety Officer Liability Issues

Example 1.

Safety Officer III consults with a General Worker IV and advises the use of certain procedures and/or personnel protective equipment (PPE) to minimize risk of exposure or injury. Unknown to Safety Officer III who left the area, the advice is rejected and an exposure or injury occurred. If the advice had been followed, the exposure or injury would not have occurred or it would have been less severe.

  1. Does Safety Officer III have any liability under Labor Code 6423 for the injury?
    • No because Safety Officer III acted positively to give the advice.

  2. What liability, if any, does General Worker IV have for his Independent Employee Act?
    • Zero liability – the worker should be disciplined for the conduct.

Example 1A.

Instead of leaving the work area, Safety Officer III observes General Worker IV who obviously rejected the advice, and an exposure or injury occurred as described above. While Safety Officer III does not have supervisory responsibility, assume that Safety Officer III knew their advice was NOT being followed and there was adequate time before the exposure or injury for Safety Office III to refer the disagreement in protocol to a supervisor in the Chain of Command.

  1. Does Safety Officer III have any liability under Labor Code 6423 for the injury?
    • If Safety Officer III knew or should have known that an injury was likely and watched to teach the person a lesson, then liability could be argued but would probably not be successful because Safety Officer III did not conceal the hazard. If Safety Officer III took a further positive step, e.g., walked off to inform the supervisor of the "risky" conduct, then there would not even be an argument for liability. As reporting incidents of sexual harassment to supervision and management by a 3rd party observer, Mr. Kazanjian said that reporting safety misconduct is at least as important.

  2. Does the employer have any liability under LC 6423 as the result of the employers expectation that work will continue even in the physical absence of a supervisor (e.g., lunch, meetings, medical appointments, vacation, etc.)?
    • If there is no person present with the authority of management to direct conduct, one has to ask if there is a safety program in place?

Example 1B.

Using the same example above (1A.) except that a supervisor or manager is not available (and the General Worker IV rejects the advice and the exposure/injury occurs because the advice was not accepted/followed.)

  1. Does Safety Officer III have any liability under Labor Code 6423 for the injury?
    • No. As one student pointed out, Safety Officer III can’t tackle the worker.

  2. Does the employer have any liability under LC 6423 as the result of the employers expectation that work will continue even in the physical absence of a supervisor (e.g., lunch, meetings, medical appointments, vacation, etc.)?
    • If there is no person present with the authority of management to direct conduct, one has to ask if there is a safety program in place?

Example 1C.

Safety Officer III consults with a General Worker IV and advises the use of certain procedures and/or personnel protective equipment (PPE) to minimize risk of exposure or injury. The advice is followed, however, a chemical exposure occurs because of an unanticipated event or the presence of a chemical that that was not anticipated, i.e., "stuff happens."

  1. Does Safety Officer III have any liability under Labor Code 6423?
    • No.

  2. If the employer’s procedures were determined to be lacking/incomplete or improper, does the Safety Officer III have any liability under Labor Code 6423 for the exposure or injury?
    • No, unless the procedures were known to be improper and then the procedures were allowed to continue without being corrected (i.e., there was a known and concealed problem with the procedure likely to cause injury).

  3. If the employer’s procedures were determined to be lacking/incomplete or improper, is the employer liable under Labor Code 6423 for the exposure or injury? If the answer is yes, who would be liable?
    • The manager who approved the procedure would be liable, and the author of the procedure (even if written by a rank-and-file employee) may share liability.

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Example 2.

Safety Officer III has received proper training (by an Industrial Hygienist or the manufacturer), and is assigned to inspect self-contained breathing apparatus (SCBAs) monthly, and to order and replace parts as necessary and within the scope of the training that was provided. A field exposure occurred because visibly worn out parts were not ordered or replaced.

  1. Does Safety Officer III have any liability under Labor Code 6423?
    • No, if the visibly worn out part was missed by accident. Yes, if Safety Officer III knew the part was worn out and then let the equipment be used (i.e., a known concealed flaw in the safety equipment that is likely to cause injury).

Example 2A.

Safety Officer III was not given proper training, and is assigned to inspect and maintain SCBAs as described in example 2 above. A field exposure subsequently occurred because the SCBA failed because the equipment was not properly maintained.

  1. Does Safety Officer III Have any liability under Labor Code 6423?
    • No.

  2. Does the supervisor/manager have liability for not providing the training?
    • Yes if they knew that training was required and did not act to provide the training.

  3. What can the Safety Officer III do to protect themselves from liability (e.g., write a memo to the supervisor stating that proper training is needed to do the assigned work)?
    • In general, where an injury is likely or has occurred (such as a carpal tunnel case and you recommend purchase of equipment) document your advice / recommendations, and always document (personal notes) situations where your advice is not taken.

Example 2B.

Safety Officer III ordered replacement parts for worn SCBA parts that were still functional but the supervisor/manager did not approve of the expenditure, and a field exposure occurred when the old parts broke during field investigation.

  1. Does Safety Officer III have any liability under Labor Code 6423?
    • No.

  2. Does the supervisor/manager have any liability under Labor Code 6423?
    • Yes if Safety Officer III informed the supervisor/manger that the parts ordered were likely to or could fail in the near future.

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Example 3.

General Worker IV goes to a crime scene at a private residence and uses a chemical to detect hidden blood (luminol), and chemically fume personal property for fingerprints (super glue – cyanoacrylate). Luminol is a hazardous chemical and may be carcinogenic but there is insufficient scientific data to conclude luminol is carcinogenic. Some employers prohibit the use of luminol. The super-glue treatment leaves a permanent film on the property, and the luminol treatment will leave some residual chemical behind. Some staff are concerned about luminol and will not use it. Because of these personal concerns and known hazards, these chemical treatments are not performed randomly and are only attempted when and where there is reason to believe that evidence may be developed.

  1. What personal liability would General Worker IV have for chemical contamination to private property in the performance of their duties?
    • None if the work performed is within the scope of employment.

  2. What responsibility does the employer have if chemical contamination is left behind that may contaminate subsequent inhabitants (e.g., public’s right to know laws)?
    • Mr. Kazanjian felt a response here related more to environmental law than safety.

      The class commented as follows:

      Any required cleanup is the responsibility of the employer.

      Some chemical applications are not visible and could be considered concealed. When there is a potential for a chemical exposure to a member of the public, and there is any substantial voice in the scientific community that luminol (or any other chemical) is a serious potential hazard, then the "service" laboratory should provide the investigating authority with the following information:

      1. Name of person authorizing use of the chemical(s),
      2. Name(s) of chemicals used,
      3. Concentrations and amounts of chemicals used,
      4. A description of the location(s) of chemical application(s), and
      5. The statement – "It is recommended that the property owner of record be informed of the names, concentrations and amounts of chemicals and location(s) of chemical application."

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Example 4.

General Worker IV (a Latent Print Analyst) is told that the presence of a "clandestine laboratory experienced criminalist" as required (by Clandestine Laboratory Manual of Instruction and Procedure) is not available. The LPAs supervisor then asks the LPA if "you would not mind going?" The LPA decides to go, and during the fieldwork a chemical exposure occurs.

  1. Does General Worker IV have any liability for the chemical exposure incurred?
    • No.

  2. Does the supervisor of the LPA have any liability for the chemical exposure?
    • Yes. The phrase "you would not mind going" is considered an order.

  3. Does the On-Site Supervisor who’s responsibility includes ensuring "that the provisions of this [CLMIP] manual are adhered to by all personnel" have any liability for the chemical exposure?
    • Yes.

Example 4A.

Example 3 involved the intentional use/application of a chemical at or on private property. If an accidental (non-intentional and non-negligent) chemical spill occurs by law enforcement or scientific personnel, on private property, during the course of their duties, i.e., "stuff happens".

  1. Does any member of the investigation team have any personal liability for the spill?
    • No.

  2. Does the employer have liability for the spill and clean up?
    • Yes.

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