By Rod Smith, Pat Miller and Matt Morrison, Sherman & Howard, LLC

The Occupational Safety and Health Administration (OSHA) has directed its inspectors to begin verifying that workers have received safety training in a format that they can understand. This new enforcement initiative, which went into effect on April 28, raises several concerns for employers.

Many OSHA standards require that employees receive some form of safety training. Some of these standards simply state that an employer must provide employees with safety training or instruction, while others require the training or instruction to be “adequate” or “effective.”

Neither the Occupational Safety and Health Act nor OSHA’s standards specifically require safety training to be translated into a language or format that all employees will understand. However, OSHA interprets its training standards as requiring employers to present safety training “with comprehensibility in mind.”

For example, if an employee does not speak or comprehend English, OSHA takes the position that safety training must be presented to the employee in a language that he or she can understand.

Likewise, if an employee understands some English but has a limited vocabulary, employers must tailor their safety training to the employee’s language limitations.

In addition, if an employee understands English but is illiterate, an employer cannot satisfy its training obligations by telling the employee to read the training materials.

Under this new enforcement initiative, OSHA has instructed its inspectors to issue “serious” citations under applicable training standards if a “reasonable person” would conclude that the employer has not provided safety training to its employees in a format that they are “capable of understanding.”

OSHA has directed inspectors to look beyond an employer’s written documentation of safety training and investigate whether employees actually understood the elements included in the training.

This could raise several troubling issues for employers. Allowing inspectors to issue a citation based on the views of a hypothetical “reasonable person” is an extremely ambiguous standard — and an invitation for arbitrary enforcement.

Although many safety professionals understand the need to translate training materials into appropriate foreign languages, OSHA does not provide any guidance on how employers can present training in a manner that all their employees are “capable of understanding” so they can avoid a citation.

Learning styles vary widely among individuals, and some employees may be reluctant to admit to their employers that they do not understand the training material. Moreover, out of sheer nervousness, some employees may fail the “pop-quiz” that compliance officers often administer during an OSHA inspection to test the effectiveness of an employer’s safety training.

In short, this new enforcement initiative has the potential to saddle employers with unjustified citations.

So, what should employers do to avoid a citation and ensure that their employees understand the safety training that they receive?

Providing complex, written materials to employees with a sign-off sheet indicating that the employee “has read and understood” the training material is not enough, especially if the employee cannot read or comprehend the rules.

A better approach, as recommended by OSHA, is for employers to realize “that if they customarily need to communicate work instructions or other workplace information to employees at a certain vocabulary level or in language other than English, they will also need to provide safety and health training to employees in the same manner.”

Employers may find it worthwhile to:

• Adopt simplified safety rules and “plain English” restatements of OSHA requirements.
• Utilize written tests, translated where necessary, to confirm employee knowledge.
• Where reading comprehension presents an issue, draft policies and training materials with diagrams or pictures showing the “right way” and the “wrong way” to perform the job.
• Verbally quiz employees with language or reading comprehension barriers, making certain to document the determination that the employee adequately understands the materials.
• Use a documented task evaluation that requires employees to actually demonstrate how to safely perform a job, such as putting on a safety harness or locking out a piece of equipment.

These efforts may go a long way toward ensuring that employees understand the safety training they receive as well as convincing OSHA that training was presented in a manner that employees were capable of understanding.

To assist employers in meeting their training obligations, OSHA has created a Web-based assistance tool intended to help employers communicate with a Spanish-speaking workforce. To access the tool, click here.  

To view OSHA’s new enforcement policy, click here.

Rod Smith, Pat Miller and Matt Morrison, with Sherman & Howard L.L.C., are attorneys practicing in the areas of occupational safety and health law. They routinely appear before the U.S. Occupational Safety and Health Review Commission, the U.S. Mine Safety and Health Review Commission and state occupational safety and health boards. For more information, e-mail the firm at its OSHA Practice Group.

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