New OSHA rules = no more se­crets

The Star Democrat - - BUSINESS & FINANCIAL -

On Thurs­day, May 12, 2016, OSHA changed the way the work­place in­jur y game is played. And there are many who be­lieve the play­ing field was def­i­nitely tipped in OSHA’s di­rec­tion.

With the sweep of a pen, new reg­u­la­tions were im­ple­mented where the U. S. Oc­cu­pa­tional Safety and Health Ad­min­is­tra­tion ( OSHA) will re­quire em­ploy­ers to sub­mit de­tailed an­nual re­ports of work­place in­juries and ill­nesses for pub­li­ca­tion on­line on a pub­lic web­site. Think of this site as a kind of cy­ber- clothes­line, where all your dirty laun­dry will now be hung up for all to see. This is the same in­for­ma­tion that em­ploy­ers were al­ready col­lect­ing and typ­i­cally re­vealed to OSHA only dur­ing in­spec­tions or sur­veys.

OSHA says its in­tent be­hind the new reg­u­la­tions isn’t ma­li­cious or to cause harm to busi­nesses. Ac­cord­ing to Dr. David Michaels, the As­sis­tant Sec­re­tar y of La­bor for OSHA, “Our new rule will ‘ nudge’ em­ploy­ers to pre­vent work in­juries, to show in­vestors, job seek­ers, cus­tomers and the pub­lic they op­er­ate safe and well- man­aged fa­cil­i­ties. Ac­cess to in­jur y data will also help OSHA bet­ter tar­get com­pli­ance as­sis­tance and en­force­ment re­sources, and en­able ‘ big data’ re­searchers to ap­ply their skills to mak­ing work­places safer.”

Up un­til now, OSHA had only been able ac­cess 1 per­cent of all work­place in­jur y re­ports, mostly through au­dits and sur­prise in­spec­tions. But what they re­ally wanted and needed was the re­main­ing 99 per­cent, so they came up with a plan where in­stead of OSHA tr ying to find the in­frac­tions, em­ploy­ers would now be re­quired to re­port all in­ci­dents. It’s a clas­sic ex­am­ple of if you aren’t catch­ing enough fish on your next trip out on the lake, come up with a way to have all the fish in the lake ac­tu­ally jump into the boat “vol­un­tar­ily.”

For those not al­ready up on the new reg­u­la­tions, the new rule pro­vi­sions on re­port­ing, which take ef fect on Jan. 1, 2017, re­quire var­i­ous em­ploy­ers ( based on es­tab­lish­ment size) to sub­mit in­jur y and ill­ness data elec­tron­i­cally to OSHA.

Es­tab­lish­ments with over 20 em­ploy­ees in spec­i­fied “high- risk in­dus­tries,” such as agri­cul­ture, util­i­ties, con­struc­tion, and man­u­fac­tur­ing in­dus­tries, must sub­mit their Form 300A by July 1 in 2017 and 2018, and by Mar. 2 ever y year there­after. You can find a de­tailed list of all in­dus­tries im­pacted at http:// bit. ly/ 2ePzE4y

For those with over 250 em­ploy­ees, OSHA is re­quir­ing th­ese es­tab­lish­ments to sub­mit in­for­ma­tion from their 2016 in­jury and ill­ness record­keep­ing Form 300A by July 1, 2017 as well. How­ever, the fol­low­ing year, th­ese em­ploy­ers are also re­quired to then sub­mit in­for­ma­tion from all 2017 forms ( 300A, 300, and 301) by July 1, 2018. Be­gin­ning in 2019 and for ever y year there­after, the in­for­ma­tion must be sub­mit­ted by March 2.

For those em­ploy­ers who uti­lize an al­ter­na­tive to the OSHA Form 301, such as a work­ers’ com­pen­sa­tion first re­port of in­jur y, as ex­pressly al­lowed by the ex­ist­ing rules, th­ese changes will in essence may now re­quire that the em­ployer also com­plete the OSHA Form 301. It is un­clear how this will work, but it is as­sumed OSHA will pro­vide clar­i­fi­ca­tion on this sub­ject shortly.

To sim­plify it, here is how the new rules fall into place: Sub­mis­sion Year

Em­ploy­ers with 250+ Em­ploy­ees

Em­ploy­ers with 20- 249 Em­ploy­ees

Sub­mis­sion Dead­line 2017

Form 300A Form 300A July 1, 2017 2018

Forms 300A, 300, 301 Form 300A July 1, 2018 2019 and beyond Forms 300A, 300, 301 Form 300A March 2, 2019 The rule also in­vokes penal­ties for em­ploy­ers that take ac­tions deemed as re­tal­i­a­tion against em­ploy­ees who re­port ac­ci­dents. Th­ese rules went into ef fect Au­gust 1, 2017, but OSHA isn’t en­forc­ing them un­til Novem­ber 1, 2017. Th­ese rules will be tough for em­ploy­ers that have safety in­cen­tive pro­grams or that re­quire drug test­ing of each em­ployee af­ter an ac­ci­dent.

Re­quir­ing drug tests for those with job- re­lated in­juries also could be seen as pres­sure not to re­port an ac­ci­dent. Un­der­stand­ably, many em­ploy­ers are con­cerned with the pro­vi­sions of OSHA’s new rule, claim­ing drug test­ing af­ter an ac­ci­dent oc­curs is a crit­i­cal tool to keep their or­ga­ni­za­tion safe. OSHA agrees, but states em­ploy­ers can­not use drug test­ing ( or the threat of drug test­ing) as a form of ad­verse ac­tion against em­ploy­ees who re­port in­juries or ill­nesses.

The new OSHA reg­u­la­tions stress the need for a bal­anced ap­proach, one which re­quires em­ploy­ers to limit post- in­ci­dent test­ing to sit­u­a­tions in which em­ployee drug use is likely to have con­trib­uted to the in­ci­dent, and for which the drug test can ac­cu­rately iden­tify im­pair­ment abuse by us­ing the drugs.

For ex­am­ple, per OSHA, it would not be a rea­son­able re­quest to drug test an em­ployee who re­ports a bee sting, a repet­i­tive strain in­jury, or an in­jur y caused by a lack of ma­chine guard­ing or tool mal­func­tion.

Em­ploy­ers need not specif­i­cally sus­pect drug use caused an ac­ci­dent be­fore im­ple­ment­ing test­ing, but the re­port­ing em­ployee should at least sus­pect a rea­son­able pos­si­bil­ity that drug use was in play and a con­tribut­ing fac­tor in the re­ported in­jur y or ill­ness, be­fore an order is given for drug test­ing.

That be­ing said, we rec­om­mend em­ploy­ers take the fol­low­ing steps:

1. Up­date your in­jur y and ill­ness re­port­ing pro­ce­dures.

2. If you do not have an in­jur y and ill­ness re­port­ing pro­ce­dure, it is im- por­tant to cre­ate one.

3. Re­vise your post- in­jury drug test­ing pol­icy to elim­i­nate au­to­matic postin­jur y drug test­ing and

re­place it with a pol­icy that re­quires an in­di­vid­ual as­sess­ment of each em­ployee and ac­ci­dent.

4. Train su­per vi­sors on how to iden­tify im­paired em­ploy­ees and how to doc­u­ment any in­ci­dents

that may trig­ger OSHA re­port­ing.

In the end, the new rules will ben­e­fit those em­ploy­ers who have al­ready com­mit­ted to en­grain­ing a safety cul­ture for their or­ga­ni­za­tion, and pro­vide a “nudge” ( which may feel like a PUSH to some) to those em­ploy­ers who put safety on the back burner. No longer will a “strong safety cul­ture” be a plus or a bonus for an or­ga­ni­za­tion.

The new rules now re­quire em­ploy­ers to take safety se­ri­ously, by fur­ther re­in­forc­ing the need and im­por­tance of es­tab­lish­ing a strong safety cul­ture, one that trick­les down from the C- suite to the work­ers on the floor. Be­cause it will be ex­tremely im­por­tant that if you are now in com­pli­ance and made your in­jur y re­ports avail­able for pub­lic view­ing, that what your cus­tomers, com­pe­ti­tion, union, con­trac­tors and, most im­por­tantly, your busi­ness prospects see is that your com­pany puts safety above all other con­cerns.

Fi­nally, hav­ing said all that, I can’t stress enough that what you ac­com­plish will surely be mis­con­strued by all par­ties should your re­port­ing be in­ac­cu­rate, and that per­haps the best course of ac­tion is to en­list the ser vices of some­one primed to han­dle the task. Any re­port you gen­er­ate should show your com­pany as one that ad­vo­cates healthy and safety- con­scious em­ploy­ees, be­cause once that mis­in­for­ma­tion is out there, it’s a bell you can’t un­ring. An er­rant re­port has the po­ten­tial to paint your com­pany in shades of doubt, which you will want to avoid at all costs. And the key is timely and ac­cu­rate re­port­ing.

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