Need to Avoid A Second Accident

Last November, one of our employees fell on the stairs while leaving the property at the end of her shift. We are in an historic building with elevator access to the third floor. This employee is required to take stairs from the third to the fourth floor. At any rate, the employee was loaded down with two shoulder bags, a small hard side cooler and shopping bag. Compounding the issue, she was wearing a long skirt that dragged the floor and pooled on the steps in front of her. No one witnessed the accident, but we have to believe that her long skirt, her loaded down condition (not work related items), and her inability to hold onto the safety handrail were contributing factors in the accident. The employee had pins installed in her ankle and was out on WC for three months. Upon her return, we accommodated here with a first floor workspace and onsite parking until her doctor released her to climb stairs. While she still has an occasional follow up doctors visit, the injury has healed and she is able to move around easily.

The employees manager has spoken to her on numerous occasions regarding taking the stairs while loaded down with all these bags and coolers.
We have informed her that we will provide her with any items she needs for work (she only needs to ask) and that she can take the elevator to the third floor and leave her food & beverages in the break room refrigerator. She still persists in bringing all these personal items with her to work each day. In fact, at one point, she was bringing a small suitcase on wheels with all this stuff. Our bag and parcel policy does not limit the number and size of items a person can bring but does allow us to search bags if we feel it necessary to do so.

Because this is a safety issue, can we restrict this one employee? I would like to advise her that she must restrict her personal items to one bag or purse and that she must keep one hand free for the safety handrail and one to hold up her long skirt when negotiating the stairs. My boss wants us to have her sign a "hold harmless" statement that if she falls again as a result of being loaded down with bags and parcels that we would assume no liability and that she would not be eligible for WC. Even if she signed that, I don't believe it would hold up....so I want to take an agressive stance with her regarding observing "safety" rules....keeping hands free to hold onto the handrails and to hold up her long skirts (if she must wear them so long).

Can anyone give me any ideas here. I'm treading on unknown territory. I don't want to punish all other employees because this employee is eccentric and thinks she has to bring all her worldly possessions to work....BUT I certainly don't want another major WC claim.

Thanks for any suggestioms you can give me.


Comments

  • 30 Comments sorted by Votes Date Added
  • Since she drives, can you strongly suggest to her that she leave her personal "stuff" in the trunk of her car?
  • Do a search on the Forum. This is eerily almost identical to a similar situation that was posted some months ago.

    I agree with you that your boss's notion of signing a hold harmless agreement will not protect you.

    I would compare this situation to one in which an employee engages in an unsafe work practice and is injured. After recovery, the employee persists in engaging in that same unsafe practice, risking additional injury. At this point, the employer should step up to the plate and take measures to ensure the employee stops doing it!

    Explain in no uncertain terms to the employee why you are concerned about what she is doing and point out to her that she is doing the same thing that got her injured in the first place. Then, impose your restrictions.
  • Does your state have an anti-retaliation law for emplyoees under WC? If so, I would be cautious in carving out a separate policy for this one individual. I'm assuming, of course, that you guys don't routinely take an "aggressive stance" with other EE's who neglect to hold the handrail while walking down the stairs. You say you "have to believe" that the accident happened the way you have stated in your post. What did the EE tell you? Is her version different than your assumption? By the way, your bosses idea would be laughed right out of a WC claims hearing.
  • To clarify, the employee states she doesn't know what happens - her ankle "just gave out" and she went down.

    Our position is that had she been holding the handrail, not overburdened with two huge totebags and cooler, and further hindered by a long skirt pooling on the step in front of her that she may have had a much milder injury - a mild sprain or the like - rather than the serious injury that she had.

    We don't want to retaliate - just make sure that we do everything in our power not to have a repeat of the first injury.
  • I know you don't want to retaliate, but I think you are if she is the only one restricted to one bag. If it is unsafe for her to carry more than one item, it's unsafe for everyone. Call me crazy, but one might argue that you are regarding her as disabled if you impose the restriction on her.
  • This might seem simplistic, but can you transfer her to the first or 2nd floor?
  • I think you must put her on a disciplinary plan related to unsafe working practice. You have described a situation that is clearly unsafe even if it is not the reason her "ankle just gave out."

    I would jump right to a written warning limiting the number of items she can carry on any one trip and make sure she follows this practice. If she continues, you may end up with a termination, but at least you will have protected the company.

    If it takes her three or four trips from her car to her desk, she may begin to see the light. Oh, and make sure she gets arrives early enough to accomplish all of this before she "clocks in." I would not pay her for all the extra trips at the start and end of each work day. Of course, if she is exempt, that part does not matter as much.
  • And what marc suggests is fine, so long as other employees are treated the same, but I'm guessing that's not the case. You say it's not retaliation, but dang, it sure looks, feels, and smells that way. You want to hold this person accountable for work rules and practices that probably don't apply to anyone else (again, an assumption, please correct me if I'm wrong) and what makes her so different? She filed a WC claim. You can't even prove that her accident was due to an unsafe practice. You can call it a safety violation if you want, but the fly in that ointment is that you are establishing the rules AFTER the event.
  • I agree with Crout. It looks and smells like retaliation, especially since you can't show you conducted a thorough, fair, impartial investigation as to the cause of the injury. In fact, she claims it was her ankle giving out, which could be true! If you are going to put her under restrictions (length of dress, number of coolers in one hand, using hand rail with the other), then others should be under the same restrictions. And most importantly, who in the world is going to monitor this day in and day out?
  • What marc suggests is great but I would put it to all ees. Maybe in ee handbook/policies or safety manual stating proper procedures for ascending and descending the stairs. Make sure all ees sign an acknowledgement of this procedure.

    Then you can state that one hand must be on handrail at all times. If this one ee continues her practice then discipline based on your policy as you would any other ee.


    JMO,
    Lisa
  • I agree with the others re policies that must be followed by ALL. I would be more concerned as to what she is actually concealing/carring in these cases if is not job related where is the need to cart these in everyday and what is in them.
  • I agree with Beag. This is an unsafe work practice. Stupidity is coverable under worker's comp unless you can show willful negligence or willful unsafe work practice. Start the disciplinary action now so that you are docementing unsafe or willful safety violations. Stay focused on the safety practices (like keeping a hand at all times on the hand rail while using the stairs) not what she is wearing or how much stuff she is carrying.
  • Work comp = no fault = aggravation for us! x:D

    As for retaliation........my question would be, have others been injured? Have you written them up when appropriate? Have there been injuries that were not the injured employees fault? Certainly, were they written up? (The answer better be no.)
    Now, have you targeted those previously hurt, for discipline up to the point of discharge, or did you write them up, and those that did not break rules again continued on with happy employment? Did you ever promote people who were injured, after they were injured? I bet you have. Unless you know that your company truely does retaliate against employees who are injured, get your ducks in a row and proceed.
    If so and the individual claims they are being retaliated against you can tell them that is crap! You are addressing specific behavior by them that is unsafe, and as they have been made aware unacceptable. Their choice is to continue this behavior, and suffer the consequences, or abide with the company's wishes that they work in a safe manner.
    Finally address specific behaviors that are unacceptable with those individuals. DO NOT make rules that apply to everyone just to deal with one or two problem employees. Manage your people, manage the problems.
    My $0.02 worth.
    DJ The Balloonman

  • I totally disagree. If you require ONLY her to follow specific rules on the safe way to walk up stairs after she has an expensive accident, it could easily be construed as retaliation. What you've done in the past could be used as a defense, but you can start retaliating at any time. And it just started.

    If it's unsafe for her it's unsafe for everyone.

    "DO NOT make rules that apply to everyone just to deal with one or two problem employees"

    What!!?!!?!? You just published the recipe on how to retaliate.
  • Some people cannot walk down the hall without tripping, but we don't have a policy that tells everyone to be careful while walking. If we have an employee who trips over their own two feet and has done that on more than one occasion, is it inappropriate to discuss personal habits/practices that generate unsafe conditions?
  • I'm not sure if you are asking me, but if you are there is a huge difference in discussing personal habits/practices and making rules.

    For example, try this statement, "Joe, you need to be more careful walking up the stairs. Why don't you try grabbing the handrail." Now look at this one, "Joe, you are now required to grab the handrail and if you are seen not following this requirement you will be disciplined. BTW, noone else has to follow this rule."

    I think there is a huge difference.




  • Labor Relations 101 says that policies and procedures need to be effectively communicated to all the relevant employees, who are then held accountable in equal fashion. It hardly gets more basic than that. So it is not sound practice to label an accident as an "unsafe work practice" after the fact.... particularly since you cannot prove there was any unsafe behavior...simply to meet an agenda of retaliation. If it was a union shop you'd be eaten alive at the grievance.
  • I am not in a union environment, so I will defer on that issue to those that are, but I still maintain that this ER is trying to do things. First protect the employer and second, protect the EE. I agree that the existence of the WC claim is a mitigating factor, but it is also a red flag about possible risks. In addition, a reasonable person has observed a daily practice that may have significantly contributed to the accident to start with.

    And just as a question or two, I believe that the OSHA regulations are so huge that nobody completely knows what's in them, but I would bet there are some rules about how loaded down an EE can be for certain work functions. And I would further guess that stair-climbing might be covered somewhere.

    It seems counter-intuitive to me to be able to observe an unsafe work practice and not be able to be more pro-active about it.
  • SMace I must disagree. I had a former employer that had over 10 pages of safety rules when I arrived. They even had a rules committee. Yes they were union. The reason for 10 pages of rules were the failure of supervison to manage people and problems, instead they made rules to they could then go to the individual or individuals and hold them to the rule. It was ludicris.
    So if you had one person who was doing something unsafe, or unacceptable you would automatically make a new rule. Sorry Johnny, no sleeping allowed on the job. Should no sleeping be spelled out? Or is unsatisfactory job performance and or conduct that adversely affects the company not enough of a catch all to address unacceptable behavior with someone?
    This person happens to have had a WC claim. If someone else had the same issue, but had not been injured, you would address it the same way.
    My $0.02 worth.
    DJ The Balloonman
  • The discusion I was involved in was about retaliation. This is all a bunch of hot air because we are not even sure if their is a retaliation law in her state (I don't even remember what state it was). Anyway, what I thought I was focused on was, if she has to hold one rail, the same should be required of everyone.

    "So if you had one person who was doing something unsafe...you would automatically make a new rule."

    Yes. When we have accidents or near misses from either unsafe acts or unsafe conditions, the situation is communicated to everyone and safety requirements are communicated to everyone, if necessary. My experience is that if one person is doing it, many are doing it.

    To make rules for only a few people is bad advice. If the rules are necessary for a few they are necessary for all.
  • I completely agree with Ballonman. It's not retaliation if you're addressing an ongoing safety issue/concern. If you fired her for filing, if you demoted her for filing, if you created a hostile work environment for her for filing - then you're looking at retaliation (if your state even addresses this). NOW you're addressing an ongoing safety issue. I guess a common sense addendum to your policies could be added, but honestly, I don't know why you would have to address this issue with everyone, when it only seems as though you have one person without any. I would approach her, tell her to knock it off with all of the bags up and down the stairs or the next time you have to ask, you'll write her up for not following a direct request.
  • > If you fired her for
    >filing, if you demoted her for filing, if you
    >created a hostile work environment for her for
    >filing - then you're looking at retaliation (if
    >your state even addresses this).

    And just how would this company prove that it wasn't retaliation? Let's see....she's singled out for discipline for something as amazingly mundane as holding a handrail (hey, THERE'S something you never see happen)...she's being held to standards that probably do not apply to any other employee, and none of the company's actions occurred until after she filed for WC. This company had better thank its lucky stars that this is not a union environment, or that there is such a law in that state. Of course, it's just this kind of capricious and arbitrary action that spurs Unionization.


  • [font size="1" color="#FF0000"]LAST EDITED ON 09-03-04 AT 11:08AM (CST)[/font][br][br]How would the company prove that it wasn't retaliation - um, because it's not? How can a request or even a future write-up be retaliation? The company is asking this person to not carry a bunch of bags up and down stairs - as a safety concern - not as a means of trying to get back or retaliate against the person for filing a claim. She's not getting a demotion, she's not getting fired, she's not in a hostile work environment when the company is actually looking out for her best interest - no future injuries. Would you let someone who hurt their back when they attempted to lift a 75 pound parcel, go out on a worker comp. claim, be out for a couple of months recovering, come back to work with no restrictions and then NOT say something to them when you see them attempting to do the same thing YET again? I don't think so as this stand off approach could (on a more probable than not case as it already happened before) wind up with the ee hurt yet again. I hear what your saying, I just don't agree that this situation, given the information provided by the poster, rates up there with retaliation. But, only the poster knows for sure & they will ultimately have to weigh the input from all of us and then determine their best course of action. x:-)
  • I would submit that their actions speak much louder than your words.
  • [font size="1" color="#FF0000"]LAST EDITED ON 09-03-04 AT 02:06PM (CST)[/font][br][br]Going back to the original post, “Because this is a safety issue, can we restrict this one employee? I would like to advise her that she must restrict her personal items to one bag or purse and that she must keep one hand free for the safety handrail and one to hold up her long skirt when negotiating the stairs.” What’s wrong with that? It may sound slightly offensive to have to have your boss tell you to hold the handrail, but according to this post, the person persists (even after breaking her ankle and being out of work for 3 months) in going up and down the stairs without observing common safety rules for navigating stairs. The post also states that the employee’s manager has talked to her about this on "numerous occasions", the poster doesn’t mention write-ups, just talking to the employee – to me that sounds like concern (laced with some frustration as the ee continues to disregard the caution) and then the employer even goes further and says that, “We have informed her that we will provide her with any items she needs for work (she only needs to ask) and that she can take the elevator to the third floor and leave her food & beverages in the break room refrigerator.” The poster could be retaliating against this person, but it just doesn’t seem like it to me based on the info provided. I think it’s fair to say that only the poster knows if there’s some ulterior motive behind their request to have this person hold the handrail, but to me if I’ve asked the person, who was previously injured doing the same thing that injured them before, to stop and go even further to offer some alternatives – that doesn’t rate up there with retaliation – in my book that’s concern for the individual’s safety with a known safety hazard. x:-) I'm not trying to prove that the poster isn't retaliating - I guess I'm just trying to say that the info provided doesn't lead me to think that retaliation is on their minds...Have a great labor day weekend everyone!
  • How do you prove there was no retaliation/ Kinda like Lance Armstrong proving he is clean....... you are trying to prove a negative.
    Like I said earlier, do you fire everyone who has had a WC claim? Have you ever promoted an employee who was previously injured? Do you typically move on, or do you harass the employees who got hurt? Have you had previous complaints of retaliation?
    No previous complaints, no withc hunt once someone files a claim, and advancement of those who have been previously injured in my opinion show that a company does not retaliate against those who suffer an injury.
    My $0.02 worth,
    DJ The Balloonman
  • We are obviously restating our arguments over and over to no avail. Let's agree to disagree. Have a great Labor Day weekend. I bet you have a race lined up this weekend, huh? I've got an 8k tomorrow. Why do we feel the need to make ourselves suffer on long weekends?
  • Didn't he take like 25 drug tests in the last year and a half with clean results? I'd say he proved his point.
  • You have not mentioned this, but I would make sure you have a "safety sign" on all stairwells which say something about holding the hand rail.
    I don't agree with disciplining this employee (at least not right now.) However, I think you can certainly sit her down and have a conversation with her something to the fact that you glad that she is back at "full duty" and doing so well. However, you still have some concerns for her safety and want to know what you can do to help her. Explain that it has been noticed that she isn't using the hand rail when walking down the stairs and since her ankle may be "weak" from prior injury, you don't want anything to happen. Get her to tell you what you can do to help her prevent any future accidents.
    I don't think you can discipline someone for their own stupidity. Also, agree with possible retaliation.
    Good Luck.
    E Wart
  • [font size="1" color="#FF0000"]LAST EDITED ON 09-03-04 AT 09:11AM (CST)[/font][br][br]On a related, but different thought: This original post and our answers to it are the very reasons the Forum is such a valuable work tool. We have numerous HR Professionals (whose opinions I have come to respect, though not always agree with) stating totally different opinions on several serious HR problems (Safety, Retaliation, OSHA, Responsibilities of both Management & Non-mamagement, etc). I feel sorry for those former Forum participants that decided they or their companies couldn't afford a few dollars for such a valuable source of information that directly affects how we perform our job.

    "Thank you!", once again to James S and all Forum participants for keeping this source of info available. Although I don't post comments that often, I do review the Forum every day. To all, keep up the good work.
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