OSHA watch

Civil penalties increase to adjust for inflation

OSHA is required to annually adjust civil penalties under a 2015 law that significantly increased the maximum penalties allowed for violations. In January, the maximum penalty for willful and repeat violations increased from $126,749 to $129,336. The maximum fines for other-than-serious, serious, and failure to abate violations rose from $12,615 to $12,934 per violation.

The updated regulatory agenda for fall 2017 contains fewer changes than the previous agenda

The fall agenda shows 16 regulations in three active stages: pre-rule, proposed rule and final rule – up from 14 in the previous agenda. Two rules were moved from “long-term action” status: amendments to the Cranes and Derricks in Construction Standard (now in the proposed rule stage), and Rules of Agency Practice and Procedure Concerning OSHA Access to Employee Medical Records (final rule stage).

The following regulations moved from the proposed rule stage in the previous agenda to the final rule stage in the new agenda:

  • Occupational Exposure to Beryllium
  • Crane Operator Qualification in Construction
  • Quantitative Fit Testing Protocol: Amendment to the Final Rule on Respiratory Protection
  • Technical Corrections to 16 OSHA Standards
  • Improve Tracking of Workplace Injuries and Illnesses

The status of Standards Improvement Project IV, (Lockout/Tagout) the only regulation listed in the final rule stage in July, has not changed.
New fact sheet: Housekeeping, sanitation practices in commercial fishing

The new fact sheet, Commercial Fishing: Safe Housekeeping and Sanitation Practices, states that over half of the recordable injuries in commercial fishing are preventable through good housekeeping and sanitary practices.
New publication warns of fatal confined space hazards on farms

An addition to the Fatal Facts series emphasizes the hazards of working in confined spaces on farms. These spaces include grain and feed silos, sump pits, and manure storage tanks. The fact sheet examines an incident in which a worker asphyxiated inside a whey storage tank.
Safety reminders for snow removal activities

Wintry weather has taken hold across much of the country and employers and workers are reminded to stay mindful of safety during snow removal activities.
Enforcement notes


  • International Polymer Solutions Inc. in Irvine received five citations related to failing to properly control hazardous energy when a moving machine part flew off and struck a worker in the chest, causing serious injury. Proposed penalties are $55,650.
  • Hadley Date Gardens Inc. in Thermal was cited for serious workplace safety and health violations following a bee swarm that stung and killed a tree worker. The company faces $41,310 in proposed penalties for failing to evaluate the worksite for hazardous bee and insect exposure, and failing to establish appropriate safety protocols, which include providing protective equipment and training.


  • Action Concrete Construction Inc. of Panama City Beach faces proposed penalties of $59,864 for exposing its employees to fall hazards and eye injuries.
  • A fatality investigation involving the death of five workers at the Big Bend River Station electrical power plant in Apollo Beach resulted in citations to Tampa Electric Co. and Gaffin Industrial Services Inc., totaling over $160,000. The fines related to energy control procedures and PPE.


  • Koch Foods of Gainesville L.L.C. was cited for multiple safety and health violations at its poultry processing plant, including a repeat violation for exposing employees to amputation hazards by failing to provide machine guarding. Proposed penalties are $208,977.
  • Stalwart Films LLC faces proposed penalties totaling the maximum allowable fine of $12,675, for the company’s failure to provide adequate protection from fall hazards. While filming the television show, “The Walking Dead.,” a stuntman was fatally injured after falling more than 20 feet.
  • Social Circle-based Goodyear Tire & Rubber Co. faces proposed penalties of $69,058 for exposing its employees to burn, hazardous energy, amputation, and caught-in safety hazards.
  • Thomson-based auto parts manufacturer HP Pelzer Systems Automotive Inc. faces penalties for safety violations and proposed penalties totaling $129,336 after an employee suffered a finger amputation.


  • A pallet manufacturer, New Lenox-based Supplyside USA, which operates as Prime Woodcraft Inc., faces $91,862 in penalties after an employee was injured while performing maintenance on equipment.
  • A mechanic, who alleged he was terminated after voicing concerns about unsafe working conditions at a bowling center owned by Lucky Strike Entertainment LLC, in Lombard, will receive a total of $40,000 in back wages as part of a consent judgment.


  • An administrative law judge affirmed citations against Fort Wayne-based commercial construction company, CME Corp, after a temporary employee was injured when he fell through an unguarded hole, but lowered the assessed fine to $6,500 in total penalties because of the company’s strong safety record. The company had contested the fine, arguing the opening was a point of access to the upper level from the pit and did not need to be guarded under the applicable regulations.


  • Schnabel Foundation Company faces $212,396 in proposed penalties for failing to protect employees against crushing hazards while they installed permanent foundation supports beneath the Woburn Public Library. A 2,600-pound rock dislodged from the foundation and fatally struck an employee.

New York

  • Marshall Ingredients LLC faces over $300,000 in proposed penalties after a temporary worker suffered a hand amputation. The company was cited for failing to protect employees against amputations and other hazards at its Wolcott facility. The temporary staffing agency, People Ready, was also cited with two serious violations for lack of hazardous energy control and fire extinguisher training. Proposed penalties totaled $24,020.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA and EEOC regulatory updates and enforcement stats on first year of Trump administration


Rule and policy status

  • Maximum penalties for violations increased to adjust for inflation as of Jan. 2, 2018.OSHA is required to annually adjust civil penalties under a 2015 law that significantly increased the maximum penalties allowed for violations. In January, the maximum penalty for willful and repeat violations increased from $126,749 to $129,336. The maximum fines for other-than-serious, serious, and failure to abate violations rose from $12,615 to $12,934 per violation.
  • General industry compliance date for Beryllium Standard – March 12, 2018
  • General industry compliance date for Silica rule – June 23, 2018
  • Certification of crane operators – Nov. 10, 2018
  • Elements of Walking-Working Surfaces & Fall Protection – Nov. 19, 2018
  • Rewrite of Lockout/Tagout (LOTO) remains active in the final rule stage under the Standards Improvement Project to make non-controversial changes to confusing or outdated standards. The proposal is to remove “unexpected energization” language from the standard.
  • Injury Data Electronic Submission. OSHA is working on a draft of a Notice of Proposed Rule Making (NPRM) to “reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule. While July 1, 2018 remains the deadline for the next data submission, OSHA recently changed its website to read: “Covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time.” Pundits are speculating that changes will include increasing the thresholds for high hazard industries and small employers, limiting submission to Form 300A, and eliminating the Anti-Retaliation provisions.
  • There has been no pullback in the criminal prosecution of employers for willful violations that result in a fatality. A.G. Sessions has not archived the Yates memo, which was issued under the Obama administration and expanded individual accountability for corporate wrongdoing and encouraged use of the tougher environmental statutes. Many expect continued criminal prosecutions.
  • There has been a shift away from the enforcement-heavy philosophy of the Obama administration and an increase in compliance assistance programs and alliances. NBC News recently reported that the number of OSHA inspectors fell 4 percent over the first nine months of 2017; 40 inspectors had left the agency and not been replaced. Impact varied by region, with the Southeast region losing 10 inspectors and experiencing a 26% decline in inspections in the first eight months of the Trump administration. However, inspections in 2017 did increase overall.
  • To date, there has been no change to the expanded scope of the Obama administration’s repeat violation policies. However, this should be watched as many expect a return to the treatment of individual, independent workplaces rather than an umbrella corporate approach and a lookback period of three, rather than five years.
  • There is an effort underway to revitalize the Voluntary Protection Programs (VPP).
  • There was a significant shift away from public shaming. Only 45 press releases related to fines were published in 2017, compared to an average of 463/year for the previous five years. (Conn Maciel Carey L.L.P.)
  • Even though Fed OSHA is reducing the emphasis on enforcement, some state OSH programs, such as California, are increasing enforcement.

Enforcement stats

A recent webinar by the law firm, Washington-based Conn Maciel Carey L.L.P. took a look at OSHA enforcement action in 2017 and the results may surprise you:

  • While the number of OSHA inspections declined each year from 2012 to 2016, they increased 1.4% from 31,948 in 2016 to 32,396 in 2017
  • The number of violations issued has declined since 2010. Between 2016 and 2017, the number of violations declined from 59,856 to 52,519 or 12.2%
  • The percentage of inspections that resulted in no citations issued has remained relatively stable – between 23% and 27%
  • The average penalty per serious violation was $3,645 in 2017, up from $3,415 in 2016
  • The cases with proposed penalties of $100,000 of more jumped dramatically from 154 in 2016 to 218 in 2017, but million-dollar cases fell from an average of 8.4 per year to 6 in 2017
  • The number of repeat violations dropped from 3,146 in 2016 to 2,771 in 2017


Equal Employment Opportunity Commission

Rule and policy status

  • The U.S. District Court for the District of Columbia has vacated the EEOC’s wellness rule effective Jan. 1, 2019, instructing the agency that its goal of revising the rule by 2021 is too slow
  • The Obama rule for large companies to report wages by race and gender on the EEO-1 form was stayed by the Office of Management and Budget in August 2017, except for the new March 31 filing deadline. Covered employers must file their 2017 Form EEO-1 no later than March 31, 2018 and the snapshot period used to compile data should be one pay period during the period from October 1, 2017 to December 31, 2017
  • A pullback on efforts to expand Title VII to cover sexual orientation and gender identity discrimination is expected

Enforcement stats

  • Retaliation charges accounted for the largest number of charges (41,097) filed in fiscal year 2017 for the seventh consecutive year and represented 48.8% of all charges
  • While the overall number of charges filed declined by 7.9%, there was only a slight decline in retaliation charges
  • Following retaliation, race was the second most frequent charge filed with the agency in fiscal year 2017 (28,528) – 33.9% of the total. This was followed by disability, 26,838, or 31.9% of the total; sex, 25,605, or 30.4% and age, 18,376, or 21.8%.
  • The agency also received 6,696 sexual harassment charges and obtained $46.3 million in monetary benefits for victims of sexual harassment

According to the 14th annual Workplace Class Action Litigation Report issued by Chicago-based law firm Seyfarth Shaw L.L.P, key 2017 trends were:

  • The monetary value of top workplace class action settlements rose dramatically, with the top 10 settlements in various employment-related class action categories totaling $2.27 billion, an increase of more than $970 million from 2016’s $1.75 billion
  • Evolving case law precedents and new defense approaches resulted in better outcomes for employers in opposing class certification requests
  • There was no “head-snapping pivot” in filings and settlement of government enforcement litigation despite the change in administration. In fact, government enforcement litigation increased in 2017
  • Several key U.S. Supreme Court rulings over the past year were arguably more pro-business than past year’s decisions

Despite the change in the administration and the Trump deregulatory agenda, the enforcement stats suggest workplace issues are still a high priority for OSHA and the EEOC. Some speculate this will change when new leadership is fully in place. Others suggest that significant enforcement will continue since the language and requirements of the Occupational Safety and Health Act make deregulation difficult without legal challenges and even if the risk of being subjected to systemic EEOC litigation lessens, employers who do not have robust and effective anti-discrimination and anti-harassment policies and practices will remain at significant risk of litigation from private attorneys.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

Fatal work injuries reach highest level since 2008

Workplace fatalities increased for the third year in a row in 2016, according to the U.S. Bureau of Labor Statistics, rising to 5,190, a 7% increase from the 4,836 fatal injuries reported in 2015. Double-digit increases were reported in workplace violence and overdose fatalities.

Work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 2,083 fatalities, or 40% of the overall total. But violence and other injuries by persons or animals increased 23% to 866 cases, becoming the second-most common fatal event in 2016. Fatal work injuries from slips, trips and falls were the third-most common fatal event last year.

Texas was the state with the highest number of worker deaths (545), followed by California (376), Florida (309) and New York (272). In all, 36 states experienced increases in deaths due to workplace injuries in 2016.

Operation Airbrake puts 2,700 CMVs out of service for brake-related violations

An unannounced inspection blitz of commercial motor vehicles resulted in 14 percent being placed out of service for brake-related violations, according to the Commercial Vehicle Safety Alliance. On Brake Safety Day, which took place Sept. 7, CVSA inspectors checked 7,698 trucks and buses in the United States and Canada. The inspections resulted in 1,064 vehicles being taken out of service for brake violations and 1,680 (22 percent) for other infractions.

New video for tower workers: Safe use of snow-tracked vehicles

A new video highlights the proper operation of snow-tracked vehicles when accessing remote tower locations.

NIOSH withdraws proposed rule on respirator leakage standards

NIOSH has withdrawn a notice of proposed rulemaking that would have established standards for total inward leakage of half-mask air-purifying particulate respirators. According to NIOSH, the public comment period produced enough evidence to convince the agency to rescind the notice.



State News


  • A new law lowering the corporate officers’ ownership threshold for opting out of work comp coverage to 10%, from a current 15%, will be effective July 1.
  • The closed drug formulary for workers’ compensation will be updated quarterly by a committee of three doctors and three pharmacists who will meet several times a year, according to the Division of Workers Compensation.
  • The Department of Industrial Relations announced 376 workers died on the job in 2016, down slightly from 388 deaths in 2015 but still higher than the most recent low of 344 in 2014.


  • The Office of Judges of Compensation Claims reported that claimants’ attorney fees increased 36% in the latest fiscal year, following the state Supreme Court’s April 2016 decision in Castellanos v. Next Door Co., which reinstated hourly fees for claimants’ attorneys.


  • Medical payments per workers compensation claim were 24% higher than the median for other states examined in a new study by the Workers Compensation Research Institute (WCRI).


  • In 2016, there were 74 fatal work-related injuries according to the Census of Fatal Occupational Injuries (CFOI), 50% of which were transportation incidents.


  • Workers’ compensation medical payments are among the lowest in the country, according to a WCRI study medical payments per claim, limited to 2.2% per year, due in part to lower prices paid for professional services as well as lower payments per service for hospital outpatient services.


  • The Department of Insurance is recommending a 3% decrease in workers’ compensation insurance loss costs for 2018, on top of a 4% decrease that took effect on Aug. 1.


  • Minnesota experienced 92 workplace fatalities in 2016, a 24.3% increase over the prior year and 48.3% above the 2015 rate. Agriculture, forestry, fishing and hunting accounted for the most deaths, followed by construction.
  • The Workers’ Compensation Assigned Risk Plan has issued a notice regarding rates for new and renewal policies, effective Jan. 1 through March 31. Because certain classification codes have been eliminated and two new classification codes created, MWCARP is publishing new rate pages, effective Jan. 1. The eliminated classification codes are 1655, 1853, 3175, 3223, 4053, 4061, 4101, 6017, 7228, 7229 and 9149.The new classification codes are 7219 and 7225.


  • Workers die on the job at a rate double that of the national average, according to the National Employment Law Project. The national average is 3.4 deaths per 100,000 workers, while Mississippi’s rate is 6.8, the fourth highest number in the country for 2015, behind North Dakota’s more than 12, Wyoming’s 10 and Montana’s 7.5. The leading fatal work injuries by occupation were 35% for transportation/material moving and 17% for construction/extraction.

New York

  • Gov. Andrew Cuomo has signed legislation that will require workers’ compensation insurers to notify policyholders 30 days before hiking their renewal premiums by more than 10%.
  • The medical share of total workers’ compensation benefit costs dropped to 37% in 2015 and 2016 from a high of 42% in 2007, while the national average is 51.4%, according to a report by the New York Compensation Insurance Rating Board.

North Carolina

  • Medical payments per workers compensation claim decreased 6% per year from 2013 through 2015, according to the WCRI, likely due to fee schedule rules.
  • The Industrial Commission reminds stakeholders of a new employee misclassification statute that went into effect Dec. 31.


  • Acting Insurance Commissioner Jessica Altman has approved an emergency loss cost increase of 6.06%, effective Feb. 1, in response to the state Supreme Court’s Protz decision.


For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Legal Corner

Employee can be terminated for unexcused absences while entitled to FMLA absences

In Bertig v. Julia Ribaudo Healthcare Group, a nurse was certified for FMLA leave for cancer and asthma. Her employer, a local hospital, had a policy that employees are subject to termination when they accrue seven absences in a rolling 12-month period. She incurred a total of 13 intermittent absences in a 12-month period, only three of which were related to her cancer or asthma.

The hospital had thoroughly documented the reasons for each absence, made its expectations clear, and the nurse acknowledged most of her absences were not related to her cancer or asthma. The court found that she was properly terminated.

Workers’ Compensation
Exclusive remedy does not bar suit against employer under Insurance Fraud Prevention Act (IFPA) – California

In The People ex rel. Mahmoud Alzayat v. Gerald Hebb et al., the 4th District Court of Appeals’ Second Division allowed a workers’ IFPA claim to proceed, noting the act contains qui tam provisions, which allow private citizens to file civil suits on behalf of the state. In this case, an employee argued he suffered a legitimate workplace injury, but his supervisor lied on the reports causing the claim denial. While the company argued that the suit was barred based on the litigation privilege of a workers’ compensation proceeding, the Court of Appeal reversed and found in favor of the worker, holding that the IFPA is an exception to the litigation privilege.

Exclusive remedy doesn’t protect supervisor from assault claim – California

In Lee v. Lang, three employees of the Christian Herald filed suit against the director of the publication for multiple wage-and-hour violations and one asserted claims for assault, battery and the intentional infliction of emotional distress. The Court of Appeals reversed in part the judgement in favor of the director, noting “the Labor Code provides an employee may sue his or her employer, notwithstanding the exclusive remedy provision of workers’ compensation, ‘[w]here the employee’s injury – is proximately caused by a willful physical assault by the employer.”

Injuries in vanpool accident limited to workers’ comp – Illinois

In Peng v. Nardi, a buffet restaurant provided a 15-passenger van for workers, which an employee drove and was paid for his driving duties. He wasn’t allowed to use the vehicle for personal errands and he was not allowed to let anyone else drive. A passenger suffered a pelvic fracture in an accident and filed a negligence suit against her co-worker and the other two drivers involved in the accident.

While the court noted accidents when an employee is traveling to or from work generally are not treated as occurring within the course of employment, there is an exception when the employer provides a means of transportation or controls the method of the worker’s travel. Although the injured worker was not required to use the van, she relinquished control over the conditions of transportation and, thus, the exclusive remedy of workers’ comp applies.

No loss of wage earning capacity means no benefits – Mississippi

In Pruitt v. Howard Industries, a worker suffered a back injury, received conservative treatment, and returned to work without restrictions in the same plant, with the same job title, and a higher wage. He filed for PPD benefits, but was denied. The Court of Appeals explained that except for scheduled-member cases, indemnity benefits are made for diminished wage-earning capacity and not medical impairment.

Heart attack not accident and not compensable – Missouri

In White v. ConAgra Packaged Foods, a long-term machinery worker collapsed and died on a particularly hot day in the machine shop, which was not air-conditioned. His widow filed a claim for benefits, asserting that his death was the result of heat stroke and/or his physical exertions in the machine shop. While it was acknowledged that the worker had high cholesterol, hypertension, and other risk factors for a heart attack, the question was whether work activities were the prevailing factor that caused the fatal heart attack.

After two denials, the Court of Appeals awarded benefits to the widow, but the Supreme Court reversed. It noted that the worker’s death must have been caused by an “accident.” An accident is defined as an unexpected traumatic event or an unusual strain that is identifiable by time and place of occurrence and that produces objective symptoms of an injury. Further, the law provides that a cardiovascular event is an injury only “if the accident is the prevailing factor in causing the resulting medical condition.”

Long-term exposure to dust leads to PTD benefits – Nebraska

In Moyers v. International Paper Co., a worker suffered respiratory problems over his 42- year employment at a paper company. When a pulmonologist suggested he stop working, he filed for comp. The court found he had a compensable occupational disease and referred him to a vocational counselor who opined that his breathing problems would prohibit working. He was found to be permanently and totally disabled by his occupational disease and this finding was upheld by the Court of Appeals.

Fall while in line for security log in and pass compensable – New York

In Hoyos v. NY-1095 Avenue of the Americas, a worker for a subcontractor slipped and fell off an elevated loading dock while standing in line with other workers at a security check point to obtain a pass to enter the building and get to his job site. Four feet off the ground, the loading dock had no guardrails, chain, rope or other indication where its platform ended and the ledge began.

The court found that even though the worker was not working at the time, he was following the rules of the contractor and had no alternate place to check in. Refusal to treat that spot as a “construction site” under the circumstance of the case would place an “unintended limitation” on the scope of Section 240(1).

Comp claim for PTSD upheld for claims adjuster – New York

In Matter of Kraus v. Wegmans Food Markets, the company had an internal policy that was unpopular with union drivers regarding no-fault benefits. Claims that arose out of a motor vehicle accident were automatically assigned to a workers’ compensation claims service provider that administered the employer’s no-fault claims, but claims that involved the use or operation of a motor vehicle, however, were not.

The in-house adjuster received threats from unionized drivers and was known to be inconsistent in applying the policy, which contributed to his termination. He filed a workers’ comp claim, asserting he had suffered a psychiatric injury from the stress caused by the drivers’ threats and accusations of dishonesty. The case went through several appeals and the Appellate Division’s 3rd Department found he was entitled to benefits for PTSD, noting he was in “an extremely stressful and untenable situation” because of his employer’s “questionable” no-fault policy.

Civil case settlement does not bar workers’ comp claim – North Carolina

In Easter-Rozzelle v. City of Charlotte, the Supreme Court overturned a state appeals decision that questioned whether a worker who sues a third party gives up the right to comp. The case involved a city employee who suffered a work-related injury and was in a serious car accident on his way to a doctor’s appointment to obtain an “out of work” note. He settled his civil suit and the case to continue to collect comp worked its way through a series of appeals.

Ultimately, the Supreme Court ruled that pursuing a third-party action does not affect a worker’s ability to bring a comp claim. The law does not require that an employer consent to the worker’s settlement of a third-party action, and the city is entitled to reimbursement of its lien from benefits due to the worker per state law.

Two-year jurisdiction rule includes out-of-state medical care – North Carolina

In Hall v. United States Xpress, Inc., payments to out-of-state medical care providers meet the criteria that a claim must be filed within two years after the last payment of medical compensation when no other compensation has been paid and when the employer’s liability has not otherwise been established. The injured worker met the “no other compensation has been paid” criteria since the benefits he had received, which exceeded $8 million in medical care, were provided under Tennessee’s-not North Carolina’s-Workers’ Compensation Act.

Massage service covered by comp – Pennsylvania

In Schriver v. WCAB (Commonwealth of Pennsylvania Department of Transportation), an injured worker received benefits for treatment of a back injury, including chiropractic services. The chiropractor referred him to a licensed massage therapist within the office, and the worker paid $60 for each massage session, but requested reimbursement. The case made its way to the Commonwealth Court, which reversed lower decisions denying payment for the massage services. It noted workers’ comp obligates an employer to provide payment for all reasonable services that an injured employee receives from “physicians or other health care workers,” including chiropractors and their employees or agents.

Earning power, not employment, determines reduction in benefits – Pennsylvania

In Valenta v. WCAB, a worker was collecting total disability benefits for a back and shoulder injury. The former employer’s comp carrier ordered a labor market survey (LMS) and earning power assessment (EPA) performed and six available jobs were identified. The employer then filed for, and was awarded, a modification of payments.

The Commonwealth Court explained the law does not require a worker be offered a job in order to have “earning power,” but meaningful employment opportunities must be available. The court said failure to be hired did not mean that the positions were not open and available, although the evidence of lack of success was relevant to the issue of earning capacity.

Pressured to quit, employee’s disability claim is upheld – Tennessee

In Alicia Hunt v. Dillard’s Inc., a manager of a makeup counter was denied surgery when her work-related ankle and knee injury did not heal. While working with restrictions, she said her supervisor pressured her to take a lower paying job. She resigned, had surgery, and sought to get her job back, but the company indicated she had voluntarily quit.

A trial court judge’s decision that the worker was pressured to resign and had not had a meaningful return to work at a wage equal to or above her pre-injury wage, was upheld by the Supreme Court. Therefore, she was entitled to permanent partial disability benefits up to six times the medical impairment rating, not, as argued by Dillard’s, the cap of 1.5 times the impairment rating when there is a meaningful return to work.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Industry challenge to silica rule rejected by court

The U.S. Court of Appeals for the District of Columbia Circuit has rejected all industry challenges to the silica rule and ordered the agency to explain why it omitted medical removal provisions. Industry groups had challenged the rule on several points, including whether there was evidence it would reduce a significant risk of material health impairment, whether it was technically and economically feasible, and if it violated the Administrative Procedure Act. It also challenged whether substantial evidence supports two ancillary provisions of the rule: allowing workers who undergo medical examinations to keep the results confidential from their employers; and prohibiting employers from using dry cleaning methods unless doing so is infeasible.

Labor unions challenged two parts of the silica rule: the requirement that medical surveillance for construction workers be provided only if the employee must wear a respirator for 30 days for one employer in a one-year period; and the absence of medical removal protections. The court rejected the first, but asked for an explanation of the second.

New and revised fact sheets on silica now available

More than a dozen fact sheets that provide guidance on the respirable crystalline silica standard for construction have been released.

Redesigned webpages make it easier to find training resources

Employers and employees can get information on job safety classes, trainers, tools, and 10-hour and 30-hour cards on the redesigned training webpage.

Tips to protect workers from winter hazards

The Winter Weather webpage provides information on protecting employees from hazards while working outside during severe cold and snow storms, including information on staying safe while clearing heavy snow from walkways and rooftops.

Alliance participants issue alert on use of multi-gas monitors in the oil and gas industry

A new hazard alert explains how multi-gas monitors can protect workers from atmospheric hazards in oil and gas operations.

Enforcement notes


  • Following the collapse of a temporary mold and vertical shoring at an Oakland construction site, which hospitalized 13 workers, Cal/OSHA issued serious and serious accident-related citations to subcontractors Largo Concrete Inc. and N.M.N. Construction Inc. for $73,365 and $70,320, respectively. General citations were issued to general contractor Johnstone Moyer Inc. for $3,630.


  • Inspected under the NEP on Trenching and Excavation, Tallahassee-based, R.A.W. Construction LLC faces proposed penalties of $148,845 for exposing its employees to trench collapse hazards.


  • Inspected under the NEP on Trenching, Dustcom Limited Inc., a Garden City construction company, was cited for failing to protect its employees from trench collapse hazards and faces proposed penalties of $130,552.


  • Three companies working on the renovation of Chicago’s Old Post Office were cited for failing to comply with respiratory protection, provide training, and properly handle PPE. American Demolition was also cited for failing to establish a written lead compliance program. Proposed penalties for American Demolition Corporation, Valor Technologies Inc., and Tecnica Environmental Services Inc. are $105,765, $64,538, and $50,194, respectively.


  • A Jeffersonville home and farm supply center, Rural King Supply, is facing proposed fines of $14,000 after state safety inspectors allegedly found elevated carbon monoxide levels at the facility due to emissions from improperly maintained forklifts.


  • A comprehensive settlement has been reached with Bartlett Grain Company LP requiring the company to implement safeguards, training, and audit procedures at its 20 grain handling facilities in six states.The agreement resolves contested citations issued in April 2012 after six individuals were killed and two injured as a result of an explosion at the Atchison grain elevator. Bartlett Grain has also agreed to pay $182,000 in penalties.


  • MIOSHA issued a second Cease Operations Order, the strongest enforcement action the agency can levy, against Sunset Tree Service & Landscaping, LLC of Bay City for continuing to operate without abating hazards on the jobsite.


  • An administrative law judge of the OSHRC affirmed citations issued against Wentzville-based Auchly Roofing Inc. for failing to use fall protection, but reduced the penalties from $7,482 to $2,494 based on the small size of the employer, good faith safety efforts, and a clean record for 20 years. The company contested the citations, arguing that the violations were de minimis in nature and that compliance with the fall protection standards cited presented a greater hazard to the employees.

New York

  • A jury and judge ordered Albany-based asbestos abatement and demolition company, Champagne Demolition, LLC and its owner, Joseph A. Champagne, to pay $173,793.84 to a former employee who was fired in June 2010 after reporting improper asbestos removal practices at a school worksite in Gloversville.


  • US Environmental Inc. was cited for 12 safety violations, including willfully exposing workers to confined space and fall hazards at its Downingtown location. Proposed penalties are $333,756.
  • The owner of Pittsburgh-based, A Rooter Man, pleaded guilty in federal court to a charge of willfully violating an OSHA regulation, resulting in the death of a worker. Sentencing, which could include prison, is scheduled for February 2018.


For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA alert – Recordkeeping changes

OSHA Form 300A posting deadline February 1, 2018

This month, all employers required to keep Form 300, the Injury and Illness Log, should be reviewing the Log to verify that entries are complete and accurate and correcting any deficiencies. The annual summary of injuries and illnesses recorded on OSHA Form 300A, Summary of Work-Related Injuries and Illnesses, must be posted where notices are customarily located, no later than February 1, 2018 and kept in place until April 30. Even if there were no recordable incidents in 2017, companies required to maintain records still must post the summary with zeros on the total lines. Copies should be made available to any employee who might not see the summary (such as a remote employee who works from home).

When an accident occurs, an employer must document a recordable injury or illness on the OSHA Form 300 log within seven days. Employers should pay careful attention to their logs and the work relatedness of safety incidents, particularly in light of the electronic submission rule. Some employers tend to focus on medical treatment or days away from work, rather than beginning with – was this work related? The OSHA Regulation 29 C.F.R. §1904.7 contains an in-depth overview of recordable injuries and illnesses. Additional information on determining medical treatment and first aid can be located at 29 C.F.R. §1904.7(b)(5).

Standard interpretations on recordkeeping issued in 2017 include:

  • Determining if the employees experienced an injury or illness due to an exposure.[1904; 1904.7(b)(7); 1904.46]
  • Clarification of 1904.31 regarding who is responsible for recording injuries and illnesses when supervision is shared by a prime contractor and subcontractors. [1904.31]

A Form 300 log is required for each physical establishment location that is expected to be in operation for at least one year. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300. A company executive, as defined by OSHA, must certify the summary. Employers must keep the records for five years following the calendar year covered by them, and if the employer sells the business, he or she must transfer the records to the new owner.

While the future of the Improve Tracking of Workplace Injuries and Illnesses is uncertain, the Injury Tracking Application (ITA) stopped accepting 2016 data as of January 1, 2018. Employers with 250 or more employees that are subject to OSHA’s recordkeeping regulation must electronically submit information from the Form 300, Form 300A, and the Form 301 to OSHA by July 1, 2018. Establishments with 20-249 employees in certain high-risk industries such as agriculture, forestry, construction and manufacturing, must submit information electronically from Form 300A by July 1, 2018. OSHA then would make the information public on its website.


List of top ten violations includes Fall Protection – Training Requirements for first time

While the list of the Top 10 violations for FY2017 remains largely unchanged from 2016, there is a newcomer in ninth place – Fall Protection – Training Requirements.

The full list:

  1. Fall Protection – General Requirements (1926.501) – 6,887
  2. Hazard Communication (1910.1200) – 4,652
  3. Scaffolding (1926.451) – 3,697
  4. Respiratory Protection (1910.134) – 3,381
  5. Lockout/Tagout (1910.147) – 3,131
  6. Ladders (1926.1053) – 2,567
  7. Powered Industrial Trucks (1910.178) – 2,349
  8. Machine Guarding (1910.212) – 2,109
  9. Fall Protection – Training Requirements (1926.503) – 1,724
  10. Electrical – Wiring Methods (1910.305) – 1,530

For more information, the National Safety Council (NSC) provides a detailed description of the specific violations and a summary of the largest penalties.

If you are looking for a way to simply your injury and work comp claims reporting, please feel free to check out our free integrated first report of injury and OSHA recordkeeping software at http://www.stopbeingfrustrated.com/osha-logs.html.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

What to expect in 2018

In today’s fast-moving business environment and volatile political atmosphere, nothing stays the same for very long, including Workers’ Compensation. Here are 18 ongoing trends and emerging issues to watch in 2018.

  1. Comp rates continue downward trend It’s good news for employers that comp rates are decreasing in most states as claims frequency declines and workplace safety continues to improve. This, coupled with relatively modest increases in medical costs and stable indemnity cost, means a reduction in loss costs and rates. Safety programs at the workplace, automation that has made hazardous jobs safer, a shift from more hazardous jobs to service jobs, and access to better medical care have all contributed to this favorable trend.There are a few areas that are more challenging, including the trucking and hospitality industries. Geographically, rates in California remain among the highest in the country and in Florida there still is concern about rising claims and legal costs, but rates are falling in both states in 2018. Rates in Pennsylvania are expected to increase 6-7% this year due to a Pennsylvania’s State Supreme Court 2017 ruling on injured employees on workers’ compensation over 2 years that will have a significant impact on rates in 2018 and moving forward unless legislation is addressed.  Moreover, workplace fatalities rose to the highest level since 2008.

    Takeaway: This is no time to become complacent. Hourly wages have been slowly trending up, along with employment. Claims have become more complex with comorbidities, aging, chronic pain, improved medical processes, and so on. The long tail nature of claims means that premiums collected today must cover losses for years to come. Insurance companies are using big data and more sophisticated predictive pricing models. Employers that collect and analyze data to improve cost controls, embrace innovative and progressive management of their Workers’ Comp program, and highlight them in underwriting submissions will reap the benefits.

  2. OSHA becomes more employer-friendly Under the Trump administration, there is a significant shift from the enforcement philosophy of the Obama administration to one of enforcement and compliance assistance.Combustible dust, vehicle backing hazards, hearing protection in construction, and updates to chemical PELs were removed from the regulatory agenda and workplace violence, process safety management, infectious diseases in healthcare, and emergency response and preparedness were moved to “long-term actions.” Enforcement of the silica standard on general industry and the maritime industry is scheduled to begin on June 23, 2018, but the Trump administration may seek a delay, depending on its experience with enforcement of the standard on the construction industry.

    Expect more emphasis on Voluntary Protection Programs (VPP), possible changes to “repeat” violation policies and National Emphasis Programs, much less public shaming, more limited use of the general duty clause, and changes to the e-recordkeeping and anti-retaliation rule.

    Takeaway: In spite of these shifts, employers should not assume they are guaranteed employer-friendly outcomes when dealing with OSHA, nor plan on specific regulatory changes, which will take time. While there may be closer adherence to the standards, the increased enforcement fines remain in effect, with some significant fines levied in 2017.

  3. New technologies will continue to emerge The ability to strengthen safety, provide health information, improve working conditions, and boost productivity with the adoption of new technologies (drones, wearables, the IoT, laser scanning, apps, emerging robotic technologies, and autonomous safety systems) will continue to grow. A virtual approach to ergonomics is emerging as a more efficient way to prevent or mitigate injuries.With this comes the need to understand regulatory requirements, privacy laws, insurance, and protection from liabilities. While the opportunities are compelling, some industries, such as construction, have been slow to adapt.

    The advances in technology also impact the medical treatment available for injured workers. Some new treatments will restore full functionality, others will significantly increase costs, and some expand the exposures for lifetime indemnity and medical benefits.

    Takeaway: As the benefits of using these technologies are proven and their prices decrease, more employers will adopt to improve safety and increase competitiveness. Evaluating functionality, security, and employee buy-in will be key in making product choices. New technologies mean new risks and promoting best practices for controlling exposures to hazards involving human interaction with technology, as well as training to mitigate the risks of workers becoming distracted or disengaged are crucial to obtain improved efficiency and reduced costs.

    From a medical vantage point, the use of evidence-based medicine and relationships with occupational physicians will continue to grow in importance.

  4. More employers will practice advocacy-based claims management Employers who have an “us vs them” attitude towards workers who have experienced a work-related injury are living in the past. Transparency, collaboration, and communication are the techniques that dominate effective claims management today.By easing the minds of injured workers and helping guide the recovery process, employers can avoid adversarial relationships and obtain better outcomes.

    Takeaway: It’s not a costly practice, but it takes commitment and consistency to work and an understanding of the injured worker. It can’t be a cookie cutter process; it’s a culture.

  5. New training techniques Training that requires focus, reinforces good practices, highly engages workers, is deliverable 24/7, and has no language barriers is not traditional training. Gamification, virtual reality (VR), and simulations have moved training from passive seminars, video watching, and form-filling to interactive culture and behavioral changing programs. Moreover, site specific safety orientation, daily tool talks, and near miss analysis and discussion build trust with workers and focus on the unique challenges of the job.Takeaway: While the top ten OSHA violations are evidence that many employers fail to meet their training obligations, it’s also true that training is often boring and ineffective. New approaches focus on problem solving and collaboration. The importance of training is how well employees remember and use what they know when the time comes to protect themselves, not that the obligation has been fulfilled.
  6. Alternative treatments for chronic pain While opioid prescribing is on the downturn in workers’ compensation and opioid early intervention programs have become an industry mainstay, legacy claims are a serious problem for the industry. Also, chronic pain particularly from musculoskeletal conditions, remains a serious problem among the workforce and must be addressed. Less invasive approaches such as education and self-care options; conservative therapies like exercise, acupuncture, physical therapy, and yoga; cognitive behavioral training to address psychological factors; and comprehensive pain management are leading the way. The debate rages on about the possibilities of medical marijuana.Takeaway: Employers offering access to affordable and evidence-based options that can help employees in pain can reduce their costs by mitigating unnecessary treatments, reducing lost time, and improving productivity. A comprehensive program provides education and is tailored to the individual needs of the employee.

    Medical marijuana continues to challenge employers in their substance abuse programs and drug testing, and state judicial and legislative bodies as they decide whether to permit reimbursement of medical marijuana as a compensable workers’ compensation benefit. Staying abreast of relevant legal decisions and clearly defined policies in employee handbooks is key.

  7. Medical practices will continue to change Telemedicine is here and expanding. Delivering medical care and information via telecommunication networks is impacting case management, physician’s visits, and rehab. It’s being used effectively for employees working in remote areas, integrated with the nurse triage process, particularly for minor injuries, and follow-up care, including post-op visits, home treatment plans, questions and answers, and consultations with specialists. There’s also been an uptick in telerehab, which supplements in-clinic physical therapy, with virtual access to physical therapy. The possibilities will continue to expand.Takeaway: The benefits of telemedicine can be significant, including cost savings, better access to care, immediate triaging of injuries, and faster claims closings. Issues facing employers include state laws, which vary in the types of services covered, provider requirements, reimbursements, and medical licensure; changing roles of stakeholders who are providing service to injured workers; patient and data privacy; monitoring quality of outcomes; and systems connectivity.
  8. Mental health issues will be talked about more The significant impact of mental health in workers’ comp continues to emerge. Legislative efforts to make it easier for first responders to receive workers’ compensation benefits for mental stress injuries (such as post-traumatic stress disorder) have met with varying degrees of success. The effect of depression, anxiety, and other mental health issues on delayed return to work, increased claims costs, and workplace violence are more fully understood and recognized.Takeaway: Companies are becoming more cognizant of these issues and are more focused on building healthy workplace cultures. The stigma attached to mental health is a societal problem and greater education is needed to identify mental health issues and appropriate treatment.

    Regulatory and external factors can become disruptors including:

  9. Natural disasters have a significant impact on the industry
  10. The national opioid crisis finds its way into the workplace, with double digit increases in overdose fatalities
  11. Globalization means borderless business and new challenges to keep traveling employees safe
  12. Debate over drug formularies will continue to rage in many states
  13. The Gig economy raises questions of adequately protecting workers
  14. The question of independent contractor vs. employee remains one of the hottest, most litigious areas
  15. Rising on-demand services change the risks faced by workers
  16. Changes to immigration laws have significant implications for the hospitality, restaurant, agricultural, construction, and technology industries as well as others
  17. 24/7 connectivity has implications for employee fatigue, driver safety, productivity
  18. The new tax law will mean changes in investment priorities and could lead to accelerated automation

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA watch

Deadline for electronic injury, illness reports was Dec. 31, next date is Jul 1, 2018

OSHA delayed the OSHA 300A upload compliance date until Dec. 31, 2017 for employers to electronically submit injury and illness data for 2016 calendar year. However, OSHA will require 2017 Injury Data to be reported by July 1st, 2018.

If you want to be able to more easily and efficiently manage reporting work related injuries and OSHA recordables, please feel free to look at our Free OSHA Software at http://www.stopbeingfrustrated.com/osha-logs.html

Crane operator certification requirements delayed until 2018

As expected, the crane operator certification requirements were delayed by one year, when a final rule was published in the Nov. 9 Federal Register – just one day before the regulation was set to go into effect. “The agency intends to propose removing the capacity component of certification,” according to the Federal Register notice.

New fact sheets available on protecting workers in the shipyard and maritime industries

Four new fact sheets on protecting workers from common hazards found in the shipyard and maritime industries are available:

Enforcement notes


  • Six employers cited over $240,000 for exposing workers to Valley Fever on a solar project construction site in Monterey County. General contractor and subcontractors McCarthy Building Cos. Inc., Papich Construction Co. Inc., Granite Construction Co. Inc., Sachs Electric Co., Dudek, and Althouse and Meade Inc. were cited.


  • Tampa Electric Co. faces over $28,000 in fines for exposing workers to a hazardous release of a chemical refrigerant. Citations were also issued to Largo-based security services provider Critical Intervention Services, for not developing or implementing a written hazard communication program and failing to provide information and training on hazardous chemicals in the workplace. The company faces $25,350 in proposed penalties.


  • Buford-based auto parts manufacturer, Elringklinger USA Inc., was cited for exposing workers to electrical, fall, and noise hazards and faces fines of $308,906. The investigation followed two incidents, one involving an amputation of an index finger. Citations included failing to install machine guarding, preventing unauthorized employees from performing tasks that require the control of electrical hazards, and protecting workers from excessive noise exposure.


  • A 59-year-old worker was killed at the Amazon warehouse in Plainfield, when his head was crushed by a forklift. In its four-charge complaint, the Indiana DOL cited failure to train employees on lock-out tag-out procedures, as well as failure to follow those procedures and fined Amazon $28,000.


  • Lynnway Auto Auction Inc. faces fines of $267,081 for electrical, struck-by, and other hazards at its auto auction facility in Billerica. Five people were struck by a sport utility vehicle and died as a result of their injuries. Inspectors also conducted a joint employer inspection, and determined that temporary workers from TrueBlue Inc. – doing business as PeopleReady – were also exposed to struck-by hazards. The agency cited the Dover, New Hampshire, staffing firm for one serious violation for a struck-by hazard, and proposed a penalty totaling $12,675.


  • New Albany-based Custom Nonwoven Inc., a subsidiary of Korea Synthetic Fiber, faces penalties of $220,544 for willfully exposing its workers to unguarded machines, electrocution, and burns from exposed electrical wires and control cabinets, and falls from walkways that were not equipped with guardrails.


  • Anderson Foot and Ankle Clinic, a Rolla-based podiatry clinic, was cited for potentially exposing employees to infectious materials, and for violations of the hazard communication standard and faces penalties totaling $93,074.


  • A Dorchester-based Farmers Cooperative faces $373,911 in proposed penalties for failing to protect workers from grain bin entrapment and engulfment hazards. The cooperative was cited for two willful, one repeat, and four serious safety violations of the agency’s grain handling standards.
  • Bimbo Bakeries USA faces $122,625 in proposed penalties for exposing workers to multiple hazards at its Bellevue commercial bakery. Investigators cited the bakery for three repeat and three serious violations including lack of machine guarding, failing to provide fall protection, and using a damaged electrical panel box.

New York

  • Trade Fair Supermarkets faces $505,929 in proposed penalties for exposing employees to safety and health hazards at three of its locations in Queens. Inspectors found blocked exit routes, saw blades without safety guards, and a lack of eyewash stations needed in the event of exposure to corrosive substances. The company also failed to train employees on, and provide safety data sheets for, hazardous chemicals used in the stores.


  • Didion Milling Inc., a corn milling facility faces over $1.8 million in penalties following a fatal grain dust explosion that killed five workers and injured 12 others. Inspectors found that the explosion likely resulted from Didion’s failures to correct the leakage and accumulation of highly combustible grain dust throughout the facility and to properly maintain equipment to control ignition sources. Cited for 14 willful violations, the company was placed in the Severe Violator Enforcement Program.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

Things you should know

NCCI published a large set of changes to the Basic Manual

While many of the changes are minor, such as replacing “insured” with “employer,” here are some you should know:

  1. Stores and day care services operated by the employer for employee use are now a general inclusion. Previously, they were a general exclusion. They must be separately rated if they also operate for the general public.
  2. The “automatic” exclusion for expense reimbursements when traveling overnight increased from $30 to $75 per day. Texas has their own exception to this and you can exclude up to the maximum IRS allowable per-diem, which is currently $189.
  3. 7228 and 7229 (Short and Long-Haul Trucking) are being retired in favor of 7219. This change has already happened in many states, with many more following along over the next year. Check with your agent for more information.

EEOC provides timeline for revising wellness regulations

In a court ruling in August, the American Association of Retired Persons, Inc. (AARP) challenged the EEOC regulations on the basis of the “voluntariness” of the 30 percent incentive limitation and the court held that the EEOC did not provide a reasonable explanation as to why the incentive limit of 30 percent of the cost of coverage rendered an employee health program voluntary rather than involuntary.

According to a status report issued in September, the EEOC intends to issue a notice of proposed rulemaking by August 2018 and issue a final rule by October 2019. Notably, the EEOC indicates in a footnote that, in order to give employers time to come into compliance with a new rule, any substantively amended rule on wellness programs would likely not be applicable until the beginning of 2021.

Adult obesity rate climbs to 40 percent

Obesity continues to present a problem to both the adult and younger population of the United States, according to new data from the Centers for Disease Control and Prevention (CDC).About 40 percent of U.S. adults are considered obese, and the rate grew 20 percent for 12 to 19 year olds, the CDC’s National Health and Nutrition Examination Survey (NHANES) indicated.

NIOSH center to focus on ‘safe integration of robots’ in the workplace

Citing a “knowledge gap related to robotics and worker safety and health,” NIOSH has launched the Center for Occupational Robotics Research in an effort to evaluate the possible advantages and hazards of robot workers, as well as foster safe robot-human interactions.
State News


  • The Department of Insurance announced that the pure premium rate will reduce 17.1% to $1.94 per $100 of payroll for workers’ compensation insurance, effective Jan. 1, 2018
  • California Gov. Jerry Brown vetoed a bill that would require employers to provide employees their injury and illness prevention plan upon request
  • Hepatitis A outbreaks have been reported in San Diego, Santa Cruz and Los Angeles counties and Cal/OSHA has issued a reminder to employers about preventive measures


  • Indiana Department of Insurance approved a 12.8% rate decrease
  • A WCRI report notes that medical payments per claim decreased 10% from 2014 to 2015 – the first such decrease in more than a decade


  • The pure premium advisory rate for work comp insurance will decrease by 9.3% for 2018

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com

OSHA news

Deadline for electronic injury, illness reports was Dec. 15 now Dec. 31.

OSHA delayed reporting requirement until Dec. 31 for employers to electronically submit injury and illness data. The agency’s final rule was published in the Nov. 24 Federal Register. According to OSHA, the delay allows “affected employers additional time to become familiar with a new electronic reporting system.”

The Improve Tracking of Workplace Injuries and Illnesses final rule, as it is formally known, mandates that employers with 250 or more workers, as well as those with 20 to 249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing, electronically submit OSHA’s Form 300A. OSHA then would make the information public on its website.

OSHA is currently reviewing the other provisions of its final rule and intends to publish a notice of proposed rule-making to reconsider, revise or remove portions of that rule in 2018.

For the next reporting deadline of July 1, 2018, if you want to be able to more easily and efficiently manage reporting work related injuries and OSHA recordables, please feel free to look at our Free OSHA Software at http://www.stopbeingfrustrated.com/osha-logs.html


Few citations given under the anti-retaliation provisions of the electronic record-keeping rule

The electronic record-keeping rule’s anti-retaliation provisions went into effect Dec. 1, 2016 and required employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, specifically barred employers from retaliating against employees, and mandated that employer procedures to report work-related injuries and illnesses must be reasonable and not discourage reporting. Employers were encouraged to evaluate employee incentive programs related to injuries to be sure they did not violate the rule.

In addition, OSHA’s interpretations of the anti-retaliatory provisions warned that post-incident drug and alcohol testing could deter employees from reporting injuries and illnesses. Therefore, post-injury drug and alcohol testing policies should be limited to situations in which there is a reasonable possibility that an employee’s drug or alcohol use was a contributing factor to a reported incident.

These provisions were controversial and the basis of some litigation against the rule. However, according to a recent article in Business Insurance, OSHA has issued only a handful of citations under anti-retaliation provisions since they went into effect last year, with several open investigations.

The article noted that Ann Rosenthal, associate solicitor for the division of occupational safety and health with the Labor Department’s Office of the Solicitor in Washington, told attendees of the American Bar Association’s annual Labor and Employment Law Conference some citations were issued against unnamed employers related to incentive programs in which employees were penalized for injury and illness reporting. This included one employer whose program gave bonuses to employees who did not report lost-time days while those who reported them did not get bonuses. But several employers quickly settled these complaints by agreeing to change their policies and giving employees the incentives. “The rule can’t really outlaw the incentive programs,” Ms. Rosenthal said. “You can have the policy – you just can’t apply it to penalize the workers who report the injuries.”

She also noted she was not aware of a single drug testing case under the federal OSHA plan since the anti-retaliation provisions went into effect. Even though this information is encouraging for employers, it does not mean the rule can be ignored. Implemented properly and in compliance with the rule, incentive programs and post-accident drug testing are possible.
Fatality and serious injury reporting rule lessons from past three years

OSHA’s Fatality & Significant Injury Reporting Rule, which went into effect January 1, 2015, required employers to report all work-related fatalities within 8 hours and all work-related inpatient hospitalizations, amputations and losses of an eye within 24 hours. A recent webinar by Conn Maciel Carey, a boutique law firm focused on Labor & Employment, Workplace Safety, and Litigation, noted that each year the rule has been in effect, the number of reports has increased. This, in spite of the fact that overall workplace injuries have declined.

Through October 2017, there were 7,248 hospitalizations reported and 2,403 amputations reported. On an annualized current year basis, this is projected to be 11,581 total reports, compared to 10,395 in 2015. Once a report is made, one of three things happen: a mandatory inspection occurs, the Area Director has discretion to decide a course of action, or a rapid response investigation letter is sent. In 2017, there is a 47% inspection rate for reported amputations and a 26% inspection rate for fatalities.

In the webinar, Conn Maciel Carey noted that there are several instances where reports are submitted when they are not required under the rule. For example, the rule requires reporting “formal admission to the inpatient service of a hospital or clinic for care or treatment.” It does not include admission for observation or testing (even after receiving medical treatment in ER), outpatient care or care in a hospital prior to formal admission, and no longer requires overnight stay. An example they obtained from OSHA:

“Employee breaks leg, goes to ER where he begins to bleed out. ER replenishes blood before setting leg, but sends patient from ER to a ward where he is admitted for monitoring because of blood loss – NOT Reportable”

Timing is also a source of non-mandatory reporting. Injuries/fatalities are reportable only if:

  • Fatality results within 30 days of the day of the incident
  • Hospitalization occurs within 24 hours of the incident
  • Amputation / eye loss occurs within 24 hours of incident

Hospitals will often delay admissions because reimbursements for emergency services are higher or they may do major medical treatment in the emergency room followed by in-patient admission for observation only. For this reason, it is important to determine if the incident is truly reportable before making the report.

In addition to the over reporting of hospitalizations, other common mistakes include failing to report minor fingertip amputations, reporting non-employee injuries, making verbal or written admissions in the report, and only identifying “employee misconduct” as the reason. It’s important to note, that California has stricter rules and the federal rules should not be followed there.

For Cutting-Edge Strategies on Managing Risks and Slashing Insurance Costs visit www.StopBeingFrustrated.com