R.C. 4121.13 sets forth the Administrator’s duty in regard to safety violations. To state it simply, the code requires the Bureau of Workers’ Compensation (BWC), to ascertain and declare safety standards which are “Best adapted to render the employees of every employment and place of employment safe.” R.C. 4121.13. The standards must be “reasonable” and equipped to ensure the “protection of the life, health, safety, and welfare of employees in employments and places of employment or frequenters of places of employment.” R.C. 4121.13(A)-(D).
Anyone who practices workers’ compensation in the state of Ohio knows that the BWC has failed to live up to its obligations under R.C. 4121.13. To the best of my knowledge, the last meaningful review of the safety violation (VSSR) codes happened over 25 years ago. More recent revisions to the codes have been little more than cursory adjustments. Unfortunately, the workplace is very different than it was 25 years ago, the codes have become so outdated such that the existing provisions rarely apply to the equipment found in the modern workplace. The result is that employers can freely apply lax safety policies with little fear of consequences rendered from the extant VSSR codes.
The worst aspect of the current safety violation codes is that the degree of difficulty attached to achieving a meaningful update of VSSR standards is extremely low. The BWC has easy access to the publically available standards established by the Occupational Safety and Health Administration (OSHA). The BWC could solve the issues arising from its outdated safety codes by simply adopting relevant OSHA standards. These are standards that have already been vetted by the federal government and which employers are already required to follow. While employers might argue that adopting OSHA standards might lead to an unjustified rash of safety violation claims, such a proposition simply does not hold. The adoption of OSHA standards would not change the fact that the violation actually has to cause an employee’s injury to constitute a safety violation, nor would it change the fact that VSSR’s are judged in the manner most favorable to the employer. So any concerns that the adoption of VSSR standards would lead to claims regarding things like improper record keeping are simply not justified.
Alternatively, the adoption of OSHA standards would easily solve the major flaw associated with the current codes – that unless an employer is using a machine they purchased 25 years ago and have not updated the machine since, the current codes are basically worthless. This flaw should weigh heavily on the BWC when it addresses safety violations in the upcoming five year rule review. Safety violations exist for a reason. They are meant to protect employees from preventable injuries, and punish employers who ignore safety standards. Moreover, as the Supreme Court has recently emphasized, that safety violation claims are one of the main justifications for the limited scope of intentional tort claims in Ohio, it is important that safety violation claims actually provide the alternative repercussions that the Court assigned to them. Unfortunately, the current codes provide little to no protection for employees in the modern workforce. The BWC needs to recognize this fact, and update the codes accordingly. It is not merely the right thing for the BWC to do, it something the BWC is obligated to do under R.C. 4121.13.