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All information, good or bad, will be published online. This is the same information that employers were already collecting and typically revealed to OSHA only during inspections or surveys.

OSHA’s New Rules Mean No More Secrets

Nov. 4, 2016
Changes in federal workplace-safety reporting requirements seek to “nudge” employers to protect workers against injuries, but there are broader implications. First deadline: Jan. 1, 2017 OSHA Form 301 Drug testing?

On May 12, 2016, OSHA changed the way the workplace injury “game” is played, and there are many who believe the playing field was tipped decidedly in OSHA’s favor. With the stroke of a pen, new regulations were implemented whereby 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 everyone to see. This is the same information that employers were already collecting and typically revealed to OSHA only during inspections or surveys.

OSHA stated its intent behind the new regulations is neither to malign businesses nor to cause harm to their competitive or financial standing. According to Dr. David Michaels, the Assistant Secretary 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 injury 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 to access 1% of all workplace injury reports, mostly through audits and surprise inspections. But what they really wanted and needed was the remaining 99%, so they came up with a plan whereby instead of the agency trying to find the infractions, employers would be required to report all incidents. It’s rather like fishing: if you aren’t catching enough fish, on your next trip have all the fish in the lake actually jump into the boat “voluntarily.”

For those not already up on the revamped regulations, the new rule provisions on reporting, which take effect on January 1, 2017, require various employers (based on establishment size) to submit injury and illness data electronically to OSHA.

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

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

Schedule, Variables, and Alternatives

For those employers who use an alternative to the OSHA Form 301, such as a workers’ compensation first report of injury, as expressly allowed by the existing rules, these changes now may 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:
The rule also invokes penalties for employers that take actions deemed as retaliatory against employees who report accidents. These rules went into effect August 1, but OSHA determined not to enforce 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 that 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 injury 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 injury or illness, before an order is given for drug testing.

That having been said, we recommend employers take the following steps:
1. Update your injury and illness reporting procedures.
2. If you do not have an injury and illness reporting procedure, it is important to create one.
3. Revise your post-injury drug testing policy to eliminate automatic post-injury drug testing and replace it with a policy that requires an individual assessment of each employee and accident.
4. Train supervisors 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 ingraining a safety culture in 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 in the plant. Because it will be extremely important that you comply with the standards and make your injury reports available for public viewing, what your customers, competition, union, contractors and, most importantly, your business prospects will see is that your company puts safety above all other concerns.

Finally, having said all this, we cannot over-stress 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 services of someone primed to handle the task. Any report is one that advocates healthy and safety-conscious employees, because once any misinformation is out there it’s a perception you cannot entirely dispel. An errant report has the potential to cast doubt on your organization, which you will want to avoid at all costs. And, the key to avoiding that is timely and accurate reporting.

Dustin Boss and Randy Boss are certified risk architects with Ottawa Kent Insurance in Jenison, MI. Dustin Boss is the creator of OSHALogs.com, a software program that assists employers and agents dealing with the new OSHA regulations. Contact him at [email protected], or 616-457-1320.As a risk architect, Randy Boss designs, builds, and implements risk-management and insurance plans for middle-market companies involving human resources,
property/casualty and benefits. He is a lead instructor for the Institute of Benefit & Wellness Advisors, and co-founder of OSHAlogs.com, an OSHA compliance and injury management platform. Contact him at [email protected]