Late Judges Ruling Means OSHA’s New Injury Reporting Rules Kick-In December 1st!

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OSHA published the new regulations earlier this year, but delayed implementation because of confusion over the rules and a pending legal challenge. The deadline for the rule to take effect was December 1st. That was in doubt because a number of business groups sued and filed for a preliminary injunction that would have prevented OSHA from implementing the rule.

However, late Monday evening, November 28th, the judge in the case denied the injunction. The case will continue, but the judge determined that OSHA can put the rule into place while the case is litigated. Based on everything we know now, that means the reporting requirements go into place tomorrow, December 1st.

What Does This Mean To Your Company?

The Rule impacts four areas:

  • It changes the way injuries and illness will be reported to OSHA.
OSHA’s goal is to make company injury and illness data available to the public over the Internet (without violating privacy laws). To do this, larger and many medium-sized companies will be required to report their information electronically.
  • It requires companies encourage employees to report any injuries.
OSHA will have the ability to penalize companies that are found to discourage reporting or, potentially, did not clearly communicate to employees the process to report.
  • It changes post-incident substance abuse testing.
While testing with cause will still be allowed, the rule prohibits blanket post-injury testing if there is not a reasonable expectation that the injury was caused by drug or alcohol use.
  • It changes the way companies use rewards to encourage safe behavior.
OSHA believes that safety awards and other incentives may discourage injury reporting. Companies will need to look closely at their programs to make sure they pass the test.
There Is No Reason To Panic Over These Changes, But You Need To Review Your Programs Now!
The actual electronic reports are not due until mid-2017 and the electronic reporting system is not up and running yet. However, the rules against discouraging reporting and the drug test provisions do come into place tomorrow. OSHA may not enforce them immediately, but that does not mean that they won’t be part of civil litigation or whistleblower claims.

Do you want to learn more or talk about strategies for meeting the requirements and reducing recordables overall? Let’s talk!  Contact us at info@lifelinestrategies.com  or by calling 985-789-0577

Big Changes Coming For OSHA, But What Kind of Changes?

lifeline-osha-2Let’s get this over with quickly.   What will OSHA be like under a Trump Administration?  The answer is I don’t know.  No one knows.  Probably Donald Trump doesn’t know.

A new administration has about 4,000 jobs to fill and neither the campaign or the transition has involved much of a focus on OSHA or workplace safety.   We do know that, as a fundamental principle, the new administration wants to scale back rules that may stifle business. However, Trump’s immigration comments seem to indicate that his focus in the labor department will be on visa issues, not workplace safety.

A former OSHA administrator Ed Foulke has offered up a list of OSHA issues he thinks the administration may look at in an article in EHS magazine:

  1. Walking-Working Surfaces Standard

  2. Respirable Silica Standard

  3. Recording and Reporting Occupational Injuries and Illnesses

  4. Whistleblower Statutes

  5. Increased OSHA Penalties

  6. OSHA Enforcement

  7. Non-Company Personnel Participation in OSHA Inspections

  8. Restroom Access for Transgender Workers

  9. Increasing Compliance Assistance

  10. Filling Empty Seats on The Occupational Safety and Health Review Commission

That is a full and ambitious list.  Personally, I don’t see the changes being that earth-shattering and I don’t think is Mr. Foulke is suggesting that.  Big agencies move like ocean liners.  They don’t get moving quickly, but, once started, they are hard to turn around.  Rules that have already been issued probably don’t change.

Silica and Injury Reporting: However, it is very possible that the administration could change the course of the silica standard and the injury and illness reporting rule.  Both are unpopular, confusing and are under litigation. If the administration weighs in against them in court, it would carry a lot of weight.

Whistleblower Protection: While the new rules on whistleblower protection for workers may be unpopular with this administration, but it is the kind of hot-button issue that Congress generally tries to avoid.

Increased Fines: Similarly, I don’t see the administration rolling back the increased OSHA penalty schedules.  First, they were passed under a Republican Congress just last year.   Second, violators never make sympathetic victims.  Finally, and most importantly, the first rule of fines is they never go down.

Ken’s Fearless Predictions: If I can pull out my own crystal ball, my prediction is that the major change in OSHA is that it OSHA’s basic philosophy toward industry changes immediately after Inauguration Day.   OSHA has historically had a poor record for finalizing regulations through the maze of industry opposition.  Current Administrator David Michaels has greatly increased OSHA’s use of field directives, letters of interpretation, and aggressive inspection findings to toughen enforcement without passing regulations.   In one bit of bureaucratic slight of hand, OSHA published a database of dozens of chemical permissible exposure limits (PELs) based on industry standards and government recommendations.  It is a valuable tool, but it bypassed the entire regulatory process with its public debate and expert review.   Another big, long-lasting change has been to expand the used of the General Duty Clause to hold employers responsible for a number of hazards not defined by regulation.

No doubt, Dr. Micheals takes pride in his ability to raise the safety bar in spite of a regulatory process that in many ways doesn’t work.   However, the next Administrator is unlikely to be so aggressive and may try to reverse the process.

Bottom Line: So it is very likely that what distinguishes Donald Trump’s OSHA will be its silence. Very few regulations, very few new initiatives and a lot lot less of the Name and Shame approach which found the head of the agency announcing big fines against violators.

Many in industry will love that.  The danger is that a spike in accidents and injuries could be a lasting legacy that will spur a future ramp up of the very programs this administration is trying to back away from.

Horses Pull 18-Wheeler From Snow

Every time we turn around, someone is pitching a new and improved approach to safety.   Sometimes we have to remind ourselves that newest isn’t necessarily best.  An example of that has been making the rounds on the internet lately.  It shows an Amish farmer using his horses to pull a truck out of a snow bank.  Sure there are plenty of shiny new tow trucks, but this appears to work just fine.

 

Are Your Employees Distracted to Death? Strategies For Reducing Vehicle Fatalities

cell-phoneOur Apps may be killing us; at least that is the gist of an article in the New York Times about the relationship between phone Apps and traffic fatalities.   For example, in Tampa last month, a teenage girl was using Snapchat to video the driver of the car she was in as he wound the car up to 115 MPH.  A moment later, he lost control of the car.  The driver, the girl and three people in the minivan they hit all died.

It is part of a larger hazard, distracted driving, and officials say the problem had reversed four decades of improvement in highway fatalities.   According to the National Highway Traffic Safety Administration, in the first six months of 2016, highway deaths jumped to 17,775, an increase of more than 10 percent, as compared to the first six months of 2015.  The culprit – all of the information sources, screens,gadgets,  and gizmos vying for our attention.  The head of the agency calls it a crisis that needs to be addressed.

There is no question that workplace distracted driving needs to be addressed.   First, driving incidents are a major cause of injuries.  For industries like oil and gas, vehicle incidents are the leading cause of fatalities.   Distracted driving prevention needs to be a part of any effective safety program.

Companies also need to recognize that OSHA considers distracted driving to be a compliance issue.   In 2010,  the head of OSHA wrote an open letter to industry, saying “It is your responsibility and legal obligation to have a clear, unequivocal and enforced policy against texting while driving.”

The same can be said for any app or car information system, such as Bluetooth connections, that can take a driver’s attention away from the road.  In OSHA-speak, distracted driving may be ‘general duty’ clause violation (Section 5(a)(1) of the OSHA act).   As safety professionals well understand, the general duty clause is in the eye of the beholder.   If OSHA thinks the company should have recognized and addressed the hazard, it is likely to cite the company under the clause.

Not all the compliance issues involving cell phones are that vague.   The regulations for cranes and derricks (29 CFR § 1926.1417(d)) very explicitly ban cells phones for operators unless they are used for signalling.   Additionally, there are state laws that ban or restrict cell phone use by drivers.   As a part of their hazard analysis under regulations, companies also need to consider the potential for a fire from a cell phone battery in an explosive or flammable environment.

Finally, host companies need to be aware that they are responsible for the practices of companies and temporary workers they bring onto their sites, including anything that may lead to distracted driving.


Companies should enact a distracted driving program, both as a way to protect employees and as a necessary compliance effort.   Do you need help developing your program?  Would another set of eyes help make sure you are not missing anything?   Contact us at info@lifeline strategies.com. 

Breaking News: New OSHA Rules on Fall Protection and Walking/Working Surfaces

lifeline-osha-2New rules are out on fall protection and slips, trips and falls.  Employers have just two months to come into compliance.   OSHA has been working on an update to the regulations governing walking/working surfaces, fall protection for General Industry and today the agency published a 500+ page final rule that lays out the changes.  It goes into effect on January 17, 2017.   You can access the full rule here. 

There are some things in the rule that industry should like.  For one thing it makes the rules on fall protection and slips and falls for General Industry more consistent with the Construction standard, which should eliminate confusion.  It also reflects improvements that many companies have already put in place and gives more flexibility in the ways that companies protect their workers.   However, as with every regulation, the devil is in the details and companies need to read the new rules carefully.

OSHA highlighted the following changes as areas that underwent significant changes:

  1. Require companies to train personal who use fall protection systems and other equipment designed for falls;
  2. Use rope descent systems up to 300 feet above a lower level; and
  3. Prohibit the use of body belts as part of a personal fall arrest system

OSHA leaders say the changes will prevent 5,842 lost-workday injuries and 29 fatalities a year.   The current leadership at OSHA had promised to release the new rule before the changeover in administrations.

Watch this site for a more detailed analysis of the rule.

 

Can Google Glasses Focus on Safety? What Are Your Thoughts?

Ran across a pretty fascinating video describing a project by Google and Johnson & Johnson to test Google Glass in the workplace.   As you may recall, in 2013 Google started selling a computer optical display that could hook onto glasses, only to stop production at the beginning of 2015.  According to the website Statista.com, a poll of consumers showed that about 90% of them said they would never buy, wear or like the product, possibly some kind of record for low appeal.

But it looks like Google Glass may have found a second life.   Johnson & Johnson is testing them as a safety tool.  According to the video, the glasses let workers access information about tasks in real time and in a way that may be valuable for younger, tech-savvy users:

In safety, we know that emerging technologies can be a double-edged sword, giving us new ways to manage hazards, but also leading to what are called “technology-assisted” accidents.

What do you think of the idea?

Uber & Zika – Two words to watch on employee injuries

Mosquito_Tasmania_cropThe two biggest questions when it comes to occupational medicine and workers comp are:

  1.  Who is covered?
  2. What are they covered for?

Right now those questions can be boiled down to two words, Zika and Uber.

Let’s look at what is covered  first.  There is a lot of concern right now over the mosquito-borne Zika virus.  It not only represents a potential health problem for workers, but may also be a devastating threat to their unborn children.  In Miami Beach, at least two police officers have contracted Zika and they believe it happened while they were on patrol.  Both cops have applied for workers comp and their union is backing them up.  In both cases, the request was denied.  Recently the city weighed in with a letter to the police union saying officers can only get workers comp if they can prove they contracted Zika on the job and identify the actual mosquito that gave it to them: “He/she must show that the exposure/bite took place while on duty and identify the specific infected mosquito.”

Needless to say, the two sides are pretty far apart on this one.  But the implications are huge.  Zika is expected to potentially expand its range throughout the Southern U.S. and the workforce that could be exposed is potentially everyone who works outside.  That’s a lot of people and a lot of exposure.   But why stop with Zika?  We have any number of mosquito, tick and other critter-born viruses.

The question of who is covered involves Uber, the on-demand ride service that turned the taxi industry upside-down by allowing people who need a ride to use a smartphone to contact drivers.  The drivers own their own vehicles and Uber does not consider them to be employees in any traditional sense of the word.   However, labor groups and some employees are challenging that claim. Much of the debate centers on whether drivers should receive workers comp.  One pro-labor organization, the National Employment Law Project, points out in a position paper that most taxi drivers, even the ones who lease their cabs, are considered employees for the purposes of workers comp.   The group argues that these are potentially risky jobs, Uber drivers fall into the same position and therefore, “on-demand companies, especially those operating in highly dangerous sectors, should be required to provide workers’ compensation to those who work for them.”

That is not by any means a legal opinion and Uber is fighting hard to maintain its model.   But it does point out that Uber and competitors like Lyft have become a battleground over the changing relationship between companies and employees.   Uber calls them independent contractors.  The Law Project calls them on-demand workers.  Other terms that crop up are temporary workers and the gig economy.  Whatever it is called, the increase in the number of workers who receive income from companies, but are not employees is raising questions over the 100-year old worker’s compensation system.  Sometimes referred to as the “Grand Bargain,” the trade-off was that workers gave up the right to sue for injuries in civil court in exchange for legal guarantees.  As the Uber model shows, both companies and labor question whether their is a Grand Bargain after all.

Zika and Uber both show that challenges to the fundamentals of workers comp are time-consuming and extremely messy.   Workers comp tends to be a lengthy process and much of it centers on individual cases.  In Miami Beach, the two officers were each handled by different comp requests.  One was rejected and the other was initially approved, then rejected.   With Uber different states have handled them differently and they have even been handled differently within the same states.   Workers comp also is prone to “venue shopping,” picking and choosing states which may be more or less prone to accept a claim.

Answers on the issues raised by Zika and Uber will take a while to resolve, but the stakes are pretty high on both of them.

Workplace Drug Use Is Up -Solutions Are Few

Louisiana Association of Self-Insured Employers Lake Charles, LA
Louisiana Association of Self-Insured Employers
Lake Charles, LA

I’ve been at the Louisiana Association of Self-Insured Employers (LASIE) conference this week and one of the hot topics is drug use.  It is a topic you hear about a lot in workplace health and safety, but opioid use and abuse is especially important in Louisiana, which leads the nation in the number of pills prescribed per patient.

Nationally, more and more workers are testing positive for drugs and alcohol, according to the testing company Quest.  It says about four percent of the U.S. workforce tested positive, the highest level in 10 years.   Given the number of states legalizing pot and the shift in public opinion on its use, it is no surprise that a big part of the increase in positive tests is from marijuana.


Need help turning your drug-testing program into an effective substance abuse program?   Research shows that testing is most effective when used in combination with employee onboarding, fit-for-duty policies, education, supervisor training and post injury case management.   Contact us at info@lifelinestrategies.com for more information.  


But it is the opiate use that is sparking so much interest. the National Safety Council has called overdoses a national epidemic.   In Northern Kentucky, for example, emergency medical personnel run on an average of seven drug-related calls a day.  According to officials, “One person in Northern Kentucky died from a drug overdose every 40 hours last year — nearly five times the number of people killed in car crashes.”

What should employers do?  The answers aren’t clear.  Drug testing is important, but there are limits on what tests alone can accomplish. Don’t forget that we are already testing millions of employees, but drug use appears to be on the rise and drugs like heroin are threatening whole regions of the country.   The other factor is that the motivation for an employee taking recreational drugs and those addicted to opioids because of chronic pain are two very different things.  That impacts the drug testing program.

Beyond the reasons why an employee may use the drug, discovery of its use may also be different.  Heroin often takes no more than 2 days to leave the system.  Oxycodone and hydrocodone don’t show up in commonly used five-panel tests, which the standard DOT-required test (at least for now).   According to a very good article from the Society for Human Resources Management, the bigger problem may be that the the employee is likely to have a valid prescription for painkillers.  That means the employer may never even be informed of the use, unless the Medical Review Officer determines that the use doesn’t match the prescription.

Testing is still a necessary part of an employer’s program, but it needs to be just one part of a multi-pronged approach that both ensures that no one is impaired while working a safety-critical job and removes the stigma that often keeps employees from seeking treatment.

A good starting place for companies is the National Safety Council’s report, The proactive role employers can take: opioids in the workplace.  It lists five steps employers should take:

  1. A clear, written policy
  2. Employee education
  3. Supervisor training
  4. An employee assistance program
  5. Drug testing

One important point that comes from the report is the potential for pain management programs to actually increase chronic pain.  The best time to address the problem appears to be at the point of injury when more options may be available.

OSHA Does Small/Medium Businesses A Favor

cbca05334a8f6737a71dcf227394345bA few years ago I did some work helping a small manufacturing company comply with safety rules. They did not have a full time safety person and they heeded help complying with government and customer requirements.  They had had one serious incident in 10 years, a fire in the shop area, and the owner grabbed a fire extinguisher and put it out himself.  Based on what I saw, I believe they were a safe place to work, but they needed a little help with documentation.

We sometimes forget what an advantage big companies have over smaller companies.  They have resources for full-time safety professionals and to implement compliance programs.  An OSHA reportable injury is statistically factored into thousands or millions of man hours, giving them lower injury rate.

Small businesses may not even have a designated safety person and their safety programs tend to be pretty basic.  Unfortunately, just one lost time injury in a year can raise their rate so high that customers won’t use them.  Worse than that, they are often unprepared if an incident happens.   According to OH&S magazine, “Smaller companies have been found to be at greater risk than bigger companies, as in 2013 alone, small businesses paid nearly four times the amount in fines as large corporations with more than 250 employees.”

Now this next sentence may shock you.  OSHA IS HERE TO HELP!

Don’t stop reading yet.

Last month, the agency released its updated Recommended Practices for Safety and Health Programs.  It modernizes a document that was first published about 30 years go and it is particularly focused on providing tools for small to medium-sized companies.  I’ve reviewed the practices and I think it will be really helpful to companies that have just one safety person or need to reach outside for help.   

The guidelines are a very simple safety management system with 7 elements:

  1. Management Leadership
  2. Worker Participation
  3. Hazard Identification and Assessment
  4. Hazard Prevention and Control
  5. Education and Training
  6. Program Evaluation and Improvement
  7. Communication and Coordination for Host Employers, Contractors, and Staffing Agencies

The last element is a new one with this update.  It reflects OSHA’s increasing concern over the disconnect between a host company’s legal responsibility to provide a safe workplace and the incident statistics showing injuries to contractors and temporary workers.   It is a very clear message to industry that this is something they need to address if they don’t want a visit from OSHA.

The guidelines are written in everyday language and are easy to understand, even by people who are not safety professionals.  The guidance also has links to a lot of resources.   Overall it is a clear, easy to follow roadmap for companies to both comply with OSHA and, more importantly, develop a safe work culture no matter how big their company is.

Does it solve all of the compliance problems a business faces?  No.  It doesn’t solve the biggest problem that businesses face – time.  It takes time to develop and manage a working program. Small businesses usually don’t have enough hours in a day.   However, the information in the OSHA program creates a framework for small companies to hire in outside help for a very specific and understandable scope of work.

Looking back to my client with the machine shop, they had the most important element that a safety culture needs – an owner who knew every one of his employees and wanted to protect all of them from being hurt.  Their issue was that they were lean and needed a little outiside assistance.  OSHA’s new guidelines may not be a one-stop, do-it-yourself guide for every small business, but it is a very good recipe for what they need to do to have a strong safety culture, regardless of their size.


Need help aligning your safety program with OSHA compliance?   Let us review your program and develop the action steps you need to comply with OSHA’s guidelines.   Contact us at Info@lifelinestrategies.com or call 985-789-0577.