Things you should know

Updated Workers’ Compensation Medicare Set-Aside Reference guide issued

The updated guide, version 2.9, addresses spinal cord stimulators and the inclusion of off-label prescription drugs, particularly Lyrica as well as updating Life Tables and examples of settlements not meeting The Centers for Medicare & Medicaid Services (CMS) review thresholds, but which would still require consideration of Medicare’s interests.

The NGHP User Guide was also updated and CMS will maintain the $750 threshold for no-fault insurance and workers’ compensation settlements, where the no-fault insurer or workers’ compensation entity does not otherwise have ongoing responsibly for medicals.

Some experts suggest that the changes are another indication that CMS intends to make Medicare Secondary Payer (MSP) enforcement a priority in 2019.

New app can help determine what’s allowed in MSAs

The CMS launched its “What’s Covered” app to give consumers more information about their Medicare benefits. It also can be a valuable assist for injured workers with MSAs.

Study: Most manufacturing workers experience fatigue

study by the American Society of Safety Professionals suggests that the automation of manufacturing processes may be contributing to worker fatigue, which was found in 58% of the workers studied. Fatigue monitoring, such as wearables that monitor heart rate, are a possible solution. The report also notes three interventions to help mitigate fatigue: posture variance, chemical supplements and rest breaks.

Work comp insurers cite top concerns

Every year for the past decade, the National Council on Compensation Insurance (NCCI) surveys carrier executives in the workers’ compensation industry to better understand their market perspectives, needs, and challenges. Learn what keeps them up at night.

New guidance for pain management in the age of the opioid epidemic

draft report from the Pain Management Best Practices Inter-Agency Task Force, which acts in an advisory capacity for the federal government, calls for individualized, patient-centered pain management. Public comments are welcome.

Study: Injured workers in the mining and construction industries and those in rural areas more likely to receive opioid prescriptions

study by the Workers Compensation Research Institute (WCRI) found 33% of injured workers employed in mining and 29% in construction received opioids for certain injuries and are more likely to receive higher doses and for longer time periods. The study also found that older workers were more likely to receive opioid prescriptions compared with younger workers, with 49% of injured workers age 49 or older receiving opioids compared to 42% of workers between the ages of 25 and 39.

Meanwhile, a higher percentage – 66% to 79% – of workers who sustained fractures, carpal tunnel and neurologic spine pain received at least one opioid prescription for pain relief. It’s postulated that those in rural areas receive more opioids because there are fewer pain management options available.

New video on performing tower modifications

new video from the National Association of Tower Erectors highlights the importance of understanding and following the proper sequence of performing tower modifications.

Injured Massachusetts teen workers lacked health and safety training: report

Nearly half of the teen workers in Massachusetts who were injured on the job between 2011 and 2015 said they did not receive health and safety training from their employer, according to a Massachusetts Department of Public Health annual report on teen worker safety. Four industries – accommodations and food service (37 percent), retail trade (19), health care and social assistance (11), and construction (4) – accounted for more than 70 percent of all work-related injuries involving teens in the state.

NIOSH releases resources on dampness and mold assessment

NIOSH recently introduced checklists to help employers assess damp areas and identify mold. The Dampness and Mold Assessment Tool has two versions – one for general buildings and one for schools – as well as a four-step assessment cycle.

CPWR releases alert, toolbox talk on lightning safety

Stressing the importance of lightning awareness while working outdoors, the Center for Construction Research and Training (CPWR) has published a hazard alert and toolbox talk addressing the topic.

State News

California

  • Division of Workers’ Compensation has updated its formulary for injured workers to include drugs to treat traumatic brain injury, effective Feb. 15
  • FMCSA granted a petition to pre-empt the state’s meal and rest break rules for commercial motor vehicle drivers

Florida

  • OSHA resumes normal enforcement activity following Hurricane Michael

Massachusetts

  • A new law applies OSHA standards to all public employees, including municipal workers and quasi-public agency workers

Michigan

Minnesota

  • New law recognizes post-traumatic stress disorder as a compensable condition for first responders

New York

  • Governor vetoed bill that would have regulated and permitted acupuncturists to treat injured workers in the state’s workers compensation
  • WC Board launches virtual hearing app, WCB VHC, which is free in the iOS App Store

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

OSHA watch

Maximum penalty of repeat or willful violation rises to $132,598

The cost of non-compliance is on the rise with the annual adjustment for inflation, effective January 24, 2019. The chart below shows the 2019 increases for each type of violation:

Violation Type/Description CFR Citation 2018 Max Penalty 2019 Max Penalty
Serious 29 CFR 1903.15(d)(3) $12,934 $13,260
Other-than-Serious 29 CFR 1903.15(d)(4) $12,934 $13,260
Willful 29 CFR 1903.15(d)(1) $129,336 $132,598
Repeated 29 CFR 1903.15(d)(2) $129,336 $132,598
Posting Requirement 29 CFR 1903.15(d)(6) $12,934 $13,260
Failure to Abate 29 CFR 1903.15(d)(5) $12,934 $13,260

Reminder: Feb. 1 was deadline for posting Form 300A

Each year, from Feb. 1 to April 30, OSHA’s Form 300A, which summarizes job-related injuries and illnesses logged in the prior calendar year, must be displayed in a common area where notices to employees are usually posted. Details can be found in our January 2019 issue.

Final rule on electronic recordkeeping issued

As expected, the final rule eliminates the requirement for establishments with 250 or more employees or those with 20 to 249 employees in certain industries with historically high occupational injury and illness rates to electronically submit information from Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) each year. These establishments are still required to electronically submit information from Form 300A (Summary of Work-Related Injuries and Illnesses). The final rule also requires covered employers to electronically submit their Employer Identification Number with their information from Form 300A.

The deadline for electronic submissions is March 2, 2019. More information.

A lawsuit has already been filed by the Public Citizen Health Research Group, the American Public Health Association and the Council of State and Territorial Epidemiologists arguing the final rule violates of the Administrative Procedure Act.

FAQs on silica standard for general industry published

The FAQs, which include answers to 64 questions organized by topic, provide guidance to employers and workers on the standard’s requirements, including exposure assessments, hazard communication and methods of compliance.

Free compliance assistance resources on falls offered online

To help employers prepare for the sixth annual National Safety Stand-Down to Prevent Falls in Construction, set to take place May 6-10, the following resources are online:

Requirements for trainers in Outreach Training Program revised

Among the 18 changes, which are scheduled to go into effect April 1, is eliminating the 90-day grace period after a trainer card expires, as well as updating the trainer code of conduct and responsibilities.

New safety resource on safe operation of tractors

A new rollover protection brochure provides information in English and Spanish on the safe operation of tractors. It emphasizes the importance of using rollover protective structures and seat belt systems to help reduce worker injuries.

Enforcement notes

California

  • US Postal Service faces fines of $149,664 for not addressing worker safety in high-heat conditions after a mail carrier was found dead in a postal vehicle on a record-setting 117-degree-Fahrenheit day in July.

Florida

  • Compass Group USA Inc., operating as Chartwells Dining, was cited for exposing employees to burn and chemical hazards at its cafeteria in Coral Gables. The company faces $134,880 in penalties for exposing employees to hazards associated with exit routes, failing to provide suitable facilities for quick drenching for employees who work with cleaning chemicals, and for not providing effective training to the employees working with the chemicals.
  • Inspected under the REP for Falls in Construction, Ad-Ler Roofing Inc. was cited for exposing employees to dangerous falls at a Naples residential worksite, one month after similar violations were found at another worksite. The Fort Myers-based contractor faces penalties of $91,466.

Missouri

  • New Haven-based Franklin County Construction LLC faces $56,910 in penalties after an employee suffered fatal fall injuries when a roof truss collapsed.

Nebraska

  • Hastings-based Noah’s Ark Processors is facing $182,926 in penalties after an employee suffered severe burns caused by exposure to anhydrous ammonia at one of its meat processing facilities. Sixteen serious violations were issued relating to process safety management (PSM) program deficiencies, failing to guard roof openings, and electrical safety and lockout/tagout violations.
  • An administrative law judge of the OSHRC affirmed a serious violation and $11,408 penalty after an employee was hospitalized due to an arc flash. Jacobs Field Services’ policy of permitting employees to remove portions of their personal protective equipment after they had determined the load side – but not the line side – of an electrical disconnect box was de-energized violated the statute.

New York

  • St. Louis, Mo-based Western Specialty Contractors is facing criminal charges and $155,204 in penalties for exposing employees to serious injuries. Operated by an untrained employee, an unsecured mini-crane overturned and fell four stories at an NYC worksite.
  • An administrative law judge of the OSHRC affirmed a serious violation against Fairport-based Ontario Exteriors Inc. when a worksite policy that directed its employees to traverse a steep second-story roof without fall protection at the beginning and end of each work day resulted in the injury of one worker. The law judge reduced the fine in half to $1,811 noting that the court believes the company will comply with fall protection requirements in the future.

Pennsylvania

  • Spear Excavating LLC based in Pennsburg was cited for exposing employees to trenching hazards at a worksite in Malvern. The company faces $106,057 in proposed penalties. The inspection was initiated by a complaint.
  • An administrative law judge of the OSHRC affirmed a serious citation and $11,408 fine against Coastal Drilling East LLC after an employee’s finger had to be amputated following a workplace accident. Cited under the general duty clause, the company argued that abatement of the cited condition was infeasible and the violation was the result of unpreventable employee misconduct, but the law judge cited an absence of training, instruction, and supervision and inconsistent enforcement.

Wisconsin

  • Two utility contractors – Bear Communications LLC of Lawrence, Kansas, and subcontractor V C Tech Inc. of Ypsilanti, Michigan – were issued a serious safety violation, and face penalties of $12,934 each – the maximum penalty allowed when they failed to establish the location of underground utilities prior to beginning excavation work. A volunteer firefighter responding to the incident was fatally injured.

For additional information.

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

A new approach to serious injury and fatality prevention

Since the advent of Heinrich’s Injury Pyramid in 1931, it has been generally accepted that there is a predictive relationship between the frequency and types of non-injury, minor injuries and the serious, life-altering or threatening injuries, at the top of the triangle. The safety triangle theorizes that for every major injury there are 29 minor injuries and 300 non-injury incidents. Though this triangle is considered a gold standard, many safety professionals realize that all non-injury or minor incidents are not equal and some have more potential to result in a serious injury or fatality (SIF).

A recent report by the Campbell Institute, Serious Injury and Fatality Prevention: Perspectives and Practices recommends a redesign or enhancement of the model. The new SIF prevention model would look at all incidents – namely, precursors to accidents, recordable injuries, lost-time injuries and fatalities – and seek out those with serious injury and fatalities potential. It encourages organizations to focus on the process factors that lead to SIF, rather than human error, which will always occur. They should focus on repairing gaps in their safety management system, workplace culture, and changing or modifying work processes that eliminate human error.

For example, a workplace with a production problem may ignore or even condone shortcuts and speed, which can lead to bad decisions by workers. A forklift operator may drive too fast and not wear a seatbelt, which can lead to a serious accident. While there can be a tendency to blame the worker, the production demands were the proximate cause and the precursor to the event. According to the author of the paper, Joy Inouye, a key to lowering the fatalities in the workforce lies in an organization’s ability to look inward. “Instead of blaming the worker for not putting on his seatbelt, start to look at those organizational factors that contributed to that.” The report includes examples of companies that have successfully revamped strategies for identifying risk factors.

Trends in injury patterns validate the need for a shift in thinking. While employers have done a good job in reducing the total recordable incident rate, there has been a disturbing increase in the number of workplace fatalities and catastrophic injuries. Diving deeper into near misses and smaller, less serious incidents could help prevent on-the-job deaths or catastrophic injuries. By identifying potential precursors to such events and educating employees about those precursors, companies can focus on eliminating the potential for such incidents to occur.

The report recognizes that isolating incidents with the potential for SIF requires serious groundwork. It suggests next steps like organizing a think-tank that defines “serious injury”, “precursor” and “potential.” To determine whether an incident is a potential SIF or not, it may make sense to define and use a Severity Scale that can be consistently understood by anyone, one that is tied to potential outcomes. For example, most severe could be an injury that would lead to the death of an individual, and the least severe could be first aid and immediate return to work. Including specific injury examples can be helpful.

Implementation raises the bar of safety management and requires a proactive, rather than reactive approach. It will take careful planning – both around the processes used and the responsibilities assigned.

What employers can do

  • Review and evaluate your near miss reporting system
    • Do workers fear the consequences of reporting something they may be blamed for or is there a culture of trust and all workers participate in reporting?
    • Is near miss training part of new hire orientation?
    • Are supervisors and management onboard and do they foster a reporting culture?
    • Is reporting simple and straightforward?
    • Does the report provide a solid log of what leads up to the incident?
    • Is the definition of near miss clear?
    • Is there a thorough investigation that identifies the root cause?
    • Are corrective actions taken and employees notified?
  • Have supervisors explain to employees why the company is focusing on the smaller incidents and near-misses, and how a minor incident can turn major. Explain the importance of looking at potential rather than actual outcomes for minor incidents.
  • Think-outside-the box. A recent article in Risk and Insurance described how Wente Family Estates vineyards teamed up with the criminology department at Holy Names University in Oakland to take a look at workers’ comp data to analyze injuries and near misses, pinpointing problem areas and gathering insight on how to prevent future losses. The idea was based on a partnership between United Airlines and the University of New Haven that used interns from the criminology department as part of a data visualization project, leading to a 23 percent reduction in employee injuries and a 29 percent reduction in aircraft damage on the ground.

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

OSHA watch

Final rule on crane operator certifications issued

As anticipated, the final rule clarifying certification requirements for crane operators, requires certification by type of crane or type of crane and lifting capacity. “Certification/licensing” must be accomplished via an accredited testing service, an independently audited employer program, military training, or compliance with qualifying state or local licensing requirements. Employers also are required to “train operators as needed to perform assigned crane activities” and provide training when it is necessary to operate new equipment.

Most requirements in the final rule became effective on Dec. 9, 2018. The evaluation and documentation requirements will become effective on Feb. 7, 2019. Employers who have evaluated operators prior to Dec. 9, 2018 will not have to conduct those evaluations again, but have to document when those evaluations were completed.

New publication on lockout/tagout and temporary workers

A new bulletin on lockout/tagout explains the joint responsibility of host employers and staffing agencies to ensure that temporary employees are properly protected against the sudden release of stored energy. Prior to beginning work, both employers should review the task assignments and job hazards to identify, eliminate, and control the release of hazardous energy before workers perform service or maintenance on machinery.

Regional Emphasis Program (REP) in Pacific Northwest for fall protection in construction

Enforcement of the REP, which includes Alaska, Idaho, Oregon and Washington, will begin after a period of outreach and education. Enforcement activities will include “onsite inspections and evaluations of construction operations, working conditions, recordkeeping, and safety and health programs to ensure compliance.”

Cal/OSHA emergency regulations approved for electronic submission form 300A by December 31, 2018

The Office of Administrative Law approved the emergency regulations that businesses required to submit the Cal/OSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage).

Enforcement notes

California

  • Oakland-based general contractor, Bay Construction, Inc., was cited for dismantling a trench box while an employee was still working inside and later killed by a loosened support rail. The company was issued nine citations with $141,075 in proposed penalties, including five classified as general, two serious, one serious accident-related and one willful-serious accident-related.
  • Amazon Landscaping Co. faces six citations and $54,750 in penalties after a worker was fatally injured when a rope he had around his body became entangled in the stump grinder and he was pulled into the cutting wheel.
  • After a series of appeals relating to citations issued to Pinnacle Telecommunications Inc. after an employee suffered serious head injuries from a 7-foot fall from a telecommunications structure, the Alameda County Superior Court affirmed that fall-protection safety orders apply to elevated indoor telecommunications structures and the penalty of $25,560.

Florida

  • PGT Industries Inc., operating as CGI Windows and Doors Inc. in Hialeah, was cited for machine guarding hazards after an employee suffered a partial finger amputation while working on an unguarded punch press. The window and door manufacturer faces $398,545 in penalties, including the maximum amount allowed by law for the violations that can cause life-altering injury.
  • Inspected under the REP on falls, Crown Roofing, LLC, was cited for exposing employees to fall hazards, including installing roofing materials without the use of a fall protection system. The roofing contractor was issued the maximum allowable penalty of $129,336.
  • Inspected under the REP on falls, Panama City Framing LLC was cited for exposing employees to fall hazards at a worksite in Panama City. The company faces $113,816 in proposed penalties.
  • Tom Krips Construction Inc. and Etherna Services Inc. were cited after a lattice boom section of a crane fell onto an employee during disassembly, crushing his foot and ankle at a Fort Lauderdale worksite. Tom Krips Construction Inc. faces $29,877 in penalties, and Etherna Services Inc. penalties total $5,174.

Georgia

  • Dollar Tree Distribution Center, Inc., and U.S. Xpress, Inc., were cited for exposing workers to hazards after an employee was fatally struck by a forklift and face penalties of $130,112 and $12,934 respectively. Both companies were cited for failing to ensure that employees wore high-visibility vests while working at night inside the center and Dollar Tree Distribution Center Inc. was also cited for using a vehicle with a non-functioning headlight, failing to guard a nip point on a conveyor discharge belt, and storing unstable materials on racks.

Massachusetts

  • Northeast Framing Inc., based in Lunenberg, was cited for exposing workers to falls and other hazards following an employee’s fatal fall at an East Boston worksite. The company faces $311,330 in penalties, the maximum allowed by law.

Nebraska

  • Rivera Agri Inc., a provider of temporary agricultural labor, was cited for failing to protect employees working in excessive heat after a farmworker succumbed to apparent heat-related symptoms while working in a cornfield near Grand Island. The company was cited for a serious violation of the General Duty Clause, and faces proposed penalties totaling $11,641.

For more information.

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

Things you should know

CMS change in Part D Manual suggests increased MSP enforcement

The Centers for Medicare and Medicaid Services (CMS) has amended its Medicare Prescription Drug Benefit Manual (Part D) to add stronger language regarding Medicare Part D sponsors’ secondary payer rights and recovery. A claim for a drug that should be paid as MSP may not be submitted or paid as a primary claim by the Medicare plan. It’s expected that Part D plans will more aggressively assert their secondary payer status, either through coverage denial and/or increased Part D recovery claims regarding workers’ compensation, liability, and other non-group health claims.

NIOSH releases silica monitoring software

NIOSH has unveiled a beta version of an online software tool designed to provide post-shift assessments of mine worker exposure to respirable crystalline silica. The Field Analysis of Silica Tool uses portable infrared technology to analyze exposure to crystalline silica.

New CSB ‘Safety Digest’ and video spotlight winterization safety at chemical, processing facilities

Safety challenges posed by cold weather at refineries, chemical plants and other facilities that handle hazardous materials are addressed in a new Safety Digest and corresponding video from the Chemical Safety Board.

NORA Manufacturing Council unveils website to help with lockout, other energy control programs

The National Occupational Research Agenda Manufacturing Sector Council has created an online resource guide intended to assist organizations in beginning, maintaining or enhancing their hazardous energy control programs.

New for nurses: Online continuing education on preventing MSDs

The Center for the Promotion of Health in the New England Workplace introduced a free online continuing education program intended to help nurses prevent musculoskeletal injuries during clinical care. Ergonomics in Healthcare includes learning modules, case studies, videos, reference materials and guidelines for reducing injuries incurred while treating patients.

FMCSA releases final rule lifting exemptions for truck drivers with diabetes

The Federal Motor Carrier Safety Administration has issued a final rule intended to ease restrictions on commercial motor vehicle drivers whose insulin-treated diabetes mellitus is under control, according to a notice in the Sept. 19 Federal Register. The rule is scheduled to go into effect Nov. 19.

New resources for the construction industry from CPWR

CPWR – The Center for Construction Research and Training (CPWR), a recently launched six new safety resources:

National Safety Council enhances Injury Facts website

The National Safety Council has enhanced the workplace section of its online “Injury Facts” database to help employers better understand the injury rates in their industries and to improve safety measures. Employers can plug in information, such as industry and tasks, to calculate risks, and obtain data on fatality rates and fatigue.

State-by-state map of opioid abuse

FAIR Health, an independent nonprofit that collects data and maintains the country’s largest database of privately billed health insurance claims, published a new white paper on opioid abuse and dependence related to regional and state differences in treatment. It includes a “heat map” to show which areas have higher opioid abuse and dependence claim lines as a percentage of total medical claim lines in 2017.

State News

California

  • Cumulative trauma claim rates have grown by 50% since 2008 and 40% of such claims are filed after an employee is terminated, according to a report by the Workers Compensation Insurance Rating Bureau
  • Medical payments per claim in 2017 decreased, averaging between $5,000 and $10,000 according to the Workers Compensation Research Institute (WCRI)
  • Became the first state to require professional cosmetics manufacturers to disclose ingredients – including hazardous chemicals – on their product labels

Indiana

  • The Department of Insurance has approved a 5.6% loss-cost reduction and an overall rate level decrease of 7.6%, which will take effect Jan. 1
  • Was one of the three states with the highest medical payments per claim in 2017, averaging just below $20,000, in a study of 18 states by WCRI

Michigan

  • The pure premium advisory rate will decrease by 8.3% in 2019, marking the eighth consecutive rate decrease says the Department of Licensing and Regulatory Affairs
  • Medical payments per claim averaged between $5,000 and $10,000 in 2017 according to WCRI

New York

  • Surpassed California as having the highest workers’ compensation costs in the country, according to the Oregon Department of Consumer and Business Service

North Carolina

  • The Insurance Commissioner has approved an average 17.2% decrease in workers’ compensation rates, effective April 1, 2019. For industry groups, the rating bureau’s proposed decrease were an average: 15.8% for manufacturing industry groups, 6.5% decrease for contracting, and 19.3% decrease for the office-clerical and goods-services industries
  • Starting Nov. 1, health care providers must check the state’s prescription drug monitoring system before prescribing a controlled substance to an injured worker
  • Decreases in medical payments per claim in 2017 were the steepest of eighteen states studied by the WCRI at 6% per year

Pennsylvania

  • Gov. Tom Wolf signed into law a bill that reinstates impairment ratings. Under the new law, an employer can request an impairment evaluation where a physician determines the degree of an injured employee’s impairment under the Pennsylvania Workers Compensation Act after the employee was injured for 104 weeks. Doctors are to refer to the “most recent” edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment
  • Faster-than-typical growth in medical payments per claim was driven by faster growth in hospital outpatient payments per claim according to the WCRI

Tennessee

  • The Workers’ Compensation Advisory Council recommended a 14% decrease in the rate for the voluntary and assigned risk market, rather than the 19.1% recommended by NCCI

Virginia

  • Was one of the three states with the highest medical payments per claim in 2017, averaging just below $20,000, in a study of 18 states by WCRI

Wisconsin

  • In contrast to moderate-to-rapid growth in prior years, the state experienced little growth in medical payments per claim since 2014 according to the WCRI
  • Was one of the three states with the highest medical payments per claim in 2017, averaging just below $20,000, in a study of 18 states by WCRI

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

Much needed clarification from OSHA on anti-retaliation provisions

My fellow Certified WorkComp Advisor, Dustin Boss, has allowed me to share his summary of the OSHA anti-retaliation clarification that the U.S. Occupational Health and Safety Administration (OSHA) just issued.

OSHA issued a standard interpretation clarifying its position on the new recordkeeping rule’s anti-retaliation provisions. OSHA’s memorandum essentially “rolls back” its enforcement of the anti-retaliation provisions, particularly concerning safety incentive programs and post-accident drug testing.

Why is this important? Many employers struggled to understand the anti-retaliation provisions since they were published in May 2016 in guidance materials accompanying the new regulations. Up until now, OSHA’s explanations have been extremely vague and confusing. But with this new publication, the confusion ends as the interpretation supersedes all the prior guidance on this topic.

So what changed?

OSHA clarifies that it does not prohibit workplace safety incentive programs or post-incident drug testing. It allows that incentive programs can be an important tool to promote workplace safety and health and encourages programs that reward workers for reporting near-misses or hazards and involvement in a safety and health management system.

OSHA also provides that rate-based incentive programs are permissible under the rule as long as they are not implemented in a manner that discourages reporting. If an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus, or a slice of pizza, because of a reported injury, OSHA will not cite the employer under the anti-retaliation provisions as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness. It hints that the more “substantial” the reward, then the more the employer may need to do to reassure employees they are free to report without retaliation. In other words, pizza parties are back.

In addition, it states that most instances of workplace drug testing are permissible. Examples of permissible drug-testing include:

  • Random drug testing
  • Drug testing unrelated to the reporting of a work-related injury or illness
  • Drug testing under a state workers’ compensation law
  • Drug testing under other federal law, such as a U.S. Department of Transportation rule
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

What should employers do now?

Employers should keep in mind that the regulations do not mention safety incentive programs or drug testing policies. The discussions about prohibitions on drug testing and incentive programs were included in prior guidance given by OSHA, as is yesterday’s interpretation rolling back that position. Thus, this position could change with the next election. For now, employers have some more certainty that the current OSHA is not going to pursue these types of retaliation claims unless there is some strong indications that the employer took action to discourage reporting.

That said, employers need to remember that the key aspect for determining whether their incentive programs are OSHA “compliant” is to treat all employees in a consistent manner and ensure that employees feel free to report an injury or illness.

Regarding employer drug testing programs, to strike the appropriate balance, drug testing policies should 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 caused by drug use.

For additional information, see OSHA’s memorandum entitled, “Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. § 1904.35(b)(1)(iv).”.

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

Things you should know

NLRB issues proposed rule on joint employers

As expected, the National Labor Relations Board (NLRB) has announced publication of a proposed rule on joint employers. The rule will effectively discard the expanded definition of joint employer in the Browning-Ferris Industries decision during the Obama era and return to the much narrower standard that it had followed from 1984 until 2015. An employer may be found to be a joint-employer of another employer’s employees only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment.

NIOSH publishes guide on air-purifying respirator selection

NIOSH has issued a guide intended to help employers select appropriate air-purifying respirators based on the environment and contaminants at specific jobsites.

Top trend in workers’ comp reform – legislation impacting first responders

According to National Council on Compensation Insurance (NCCI), the introduction of legislation impacting first responders was the top trend in workers’ compensation reforms countrywide, although few bills have passed. In 2018, there were 103 bills dealing with first responders battling post-traumatic stress disorder or cancer, but only five bills passed. Washington and Florida both passed bills that would allow first responders with PTSD to file workers’ compensation claims under certain circumstances, and Hawaii and New Hampshire revised or enacted presumption bills for firefighters battling certain types of cancer. New Hampshire also passed a law that calls for a commission to “study” PTSD in first responders.

Worker fatalities at road construction sites on the rise: CPWR

A total of 532 construction workers were killed at road construction sites from 2011 through 2016 – more than twice the combined total for all other industries – according to a recent report from the Center for Construction Research and Training, also known as CPWR. In addition to the statistics, the report highlights injury prevention strategies for road construction sites from CPWR and several agencies.

State-by-state analysis of prescription drug laws

The Workers Compensation Research Institute published a report that shows how each of the 50 states regulates pharmaceuticals as related to workers’ compensation. Some of the highlights include:

  • 34 states now require doctors to perform certain tasks before prescribing
  • At least 11 states have adopted drug formularies
  • 15 states do not have treatment guidelines to control the prescription of opioids, and preauthorization is not required
  • In at least 26 states, medical marijuana is allowed in some form and nine of those states specifically exclude marijuana from workers’ compensation

Guide and study related to workers and depression

Workers who experience depression may be less prone to miss work when managers show greater sensitivity to their mental health and well-being, recent research from the London School of Economics and Political Science shows. The study was published online in the journal BMJ Open.

In March, the Institute for Work and Health published a guide intended to aid “the entire workplace” in assisting workers who cope with depression or those who support them.

11 best practices for lowering firefighter cancer risk

A recent report from the International Association of Fire Chiefs’ Volunteer and Combination Officers Section and the National Volunteer Fire Council details 11 best practices for minimizing cancer risk among firefighters.

NIOSH offers recommendations for firefighters facing basement, below-grade fires

The Workplace Solutions report offers strategies and tactics for fighting basement and below-grade fires, along with a list of suggested controls before, during and after an event.

Predicting truck crash involvement update now available

The American Transportation Research Institute has updated its Crash Predictor Model. It examines the statistical likelihood of future truck crashes based on certain behaviors – such as violations, convictions or previous crashes – by using data from 435,000 U.S. truck drivers over a two-year period.

This third edition of CPM includes the impact of age and gender on the probability of crashes. It also features average industry costs for six types of crashes and their severity.

State News

California

  • Governor signed four bills related to comp. A.B. 1749 allows the first responder’s “employing agency” to determine whether an injury suffered out of state is compensable. A.B. 2046 requires governmental agencies involved in combating workers compensation fraud to share data, among other changes to anti-fraud efforts. S.B. 880 allows employers to pay indemnity benefits with a prepaid credit card. S.B. 1086 preserves the extended deadline for families of police and firefighters to file claims for death benefits.
  • Governor vetoed bills that would have prohibited apportionment based on genetics, defined janitors as employees and not contractors, identified criteria doctors must consider when assigning an impairment rating for occupational breast cancer claims, called for the “complete” disbursement of $120 million in return-to-work program funds annually, and required the Division of Workers’ Compensation to document its plans for using data analytics to find fraud.
  • The Division of Workers’ Compensation revised Medical Treatment Utilization Schedule Drug List went into effect Oct 1.
  • Independent medical reviews (IMRs) used to resolve workers’ comp medical disputes in the state rose 4.4 percent in the first half of 2018 compared to the first half of 2017; however, in over 90 percent of those cases, physicians performing the IMR upheld the utilization review (UR) physician’s treatment modification or denial. – California Compensation Institute (CWCI)

Florida

  • Workers’ compensation coverage for post-traumatic stress disorder (PTSD) for first responders like firefighters, EMTs, law enforcement officers and others went into effect Oct. 1.

Indiana

  • Workers’ Compensation Board will destroy paper documents in settlements. If parties mail or drop off paper-based settlement agreements and related documents, it will trash them and notify the parties by phone or email to submit online. The board urges parties to follow the settlement checklist and procedure posted on its website.

Minnesota

  • The Department of Labor and Industry formally adopted a number of changes to fees for rehabilitation consultants.
  • Department of Labor and Industry approved rule changes that slightly increase fees for medical and vocational rehabilitation services, and increase the threshold for medical, hospital and vocational rehabilitation services that treat catastrophically injured patients.
  • Effective Jan. 1, the assigned risk rate, which insures small employers with less than $15,000 in premium, and employers with an experience modification factor of 1.25 or higher, will decrease 0.7%.

Missouri

  • A new portal from the Department of Labor offers safety data, video, and training programs.

New York

  • The Workers’ Compensation Board has launched its virtual hearings option for injured workers and their attorneys. For more information.
  • Attorneys or representatives are now required to check-in to all hearings using the online Virtual Hearing Center when appearing in person at a hearing center.

Virginia

  • The Department of Labor and Industry has issued a hazard alert warning of the potential dangers of unsafe materials handling and storage in the beverage distribution and retail industry.
  • The Workers’ Compensation Annual Report for 2017 shows claims and first report of injury are trending up, bucking the downward trend nationally. There has also been a big jump in alternative dispute resolutions.

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

 

OSHA watch

Compliance date for parts of general industry beryllium standard delayed

The compliance date for certain ancillary provisions in the beryllium standard for general industry is extended to December 12, 2018. The final rule published in the Aug. 9 Federal Register, states that the compliance date applies to requirements for methods of compliance, beryllium work areas, regulated areas, personal protective clothing and equipment, hygiene facilities and practices, housekeeping, communication of hazards, and recordkeeping.

New compliance assistance resources available for Silica Standard

  • A customizable slide presentation can be used to help train construction workers.
  • A five-minute video shows how to protect workers from exposure to silica dust.
  • A series of short videos demonstrates the proper use of specified dust control methods for six common construction tasks.
  • An FAQ page provides answers to frequently asked questions about the Respirable Crystalline Silica Standard for Construction.

Tips on forklift safety and maintenance

New QuickCards are available in English and Spanish to aid employees and employers in the safe operation and proper maintenance of forklifts.

Guidance explains how to use the 300 log to look for trends

That was no accident encourages employers to use the 300 Log not just as a paperwork exercise or a way to look at past performance, but as part of a company’s road map to finding and fixing hazards.

Redesigned regulations webpage provides easier navigation

The Law and Regulations webpage that features information on standards and rulemaking now can be searched by keyword or number and includes the latest updates on active rulemaking. The page also features information buttons to explain regulatory language that may be unfamiliar to some users.

Free workplace violence prevention webinar available online

A free 60-minute webinar on preventing workplace violence in healthcare settings is available from The Joint Commission, a long-standing national alliance partner. The webinar includes an overview of Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, as well as a discussion of a multi-hospital intervention study that reduced violent events.

Name-and-shame strategy still prevalent in news releases

While the rate of releasing public statements about enforcement actions taken against employers is significantly lower under the Trump administration than the Obama administration (463 a year to about 150), the tone in these press releases has not changed. Most include harsh and embarrassing quotations from senior officials. Stakeholders argue that the press releases are based merely on allegations of violations and are published prior to companies being afforded a hearing.

Enforcement notes

California

  • Roofing contractor, Petersen-Dean, Inc., faces $146,004 in fines for repeat violations of exposing workers to fall hazards.
  • New York-based Outfront Media Inc, an outdoor advertising company, faces proposed penalties of $32,435 for serious safety violations after a worker suffered third-degree burns as well as an inadequate heat illness prevention plan for its outdoor workers.

Florida

  • G&H Underground Construction faces $57,738 in proposed penalties for allowing the use of unguarded machines after an employee suffered a throat laceration at a worksite in St. Augustine.
  • Archer Western Construction Inc., an Atlanta-based company, faces $33,259 in proposed fines for safety violations after two employees suffered fatal injuries while performing trenching activities at a Miami worksite.
  • The Holly Hill-based paving company, Pavemax Corp. faces $16,814 in proposed fines for safety violations after an employee suffered fatal injuries at an Orange City worksite, including failure to train and provide a place of employment free from recognized hazards.

Illinois

  • HB Fuller Company, operating as Adhesive Systems Inc., faces $587,564 in proposed penalties for 18 health and safety violations at its facility in Frankfort. The company was cited for failing to: provide employees with respirator fit tests and respirators appropriate for hazardous atmospheres; require bonding and grounding when transferring flammable liquids; ensure that electrical equipment was approved for use in hazardous atmospheres; and conduct a personal protective equipment assessment.

Mississippi

  • After Nissan North America Inc. contested two violations, an administrative law judge of the OSHRC vacated one serious citation but affirmed the other and assessed a $12,675 penalty. The law judge affirmed the violation of training requirements in an employer’s energy control program after determining that the evidence established that the exposure was reasonably predictable and training the technicians was required.

New York

  • The OSHRC affirmed two serious citations previously vacated by an administrative law judge against a commercial laundry facility, Angelica Textile Services Inc., in Ballston Spa. A single grouped penalty of $7,000 was assessed for inadequate isolation and verification procedures for a permit required confined space and of lockout/tagout procedures. However, the review commission reclassified the penalties as serious rather than repeat violations.

Pennsylvania

  • Grove U.S. LLC. was cited for exposing workers to struck-by hazards after three employees suffered fatal injuries when a 300-ton crane collapsed at the company’s Shady Grove facility. The company faces proposed penalties totaling $14,976, the maximum amount allowed.

Tennessee

  • Day & Zimmerman NPS Inc. faces $71,599 in proposed penalties for exposing employees to electric shock hazards at the Tennessee Valley Authority Sequoyah Nuclear Power Plant in Soddy Daisy.
  • Specialty Tires of Unicoi faces $6,000 in fines after a mechanic was killed when he was caught in the moving arms of an assembly machine. The company was cited for failure to have an energy control procedure and failure to conduct regular inspections of an energy control program and ensuring that employees understand and comply with such a program.
  • M&K Home Improvement faces $51,200 in penalties for exposing workers to fall hazards.

For more information.

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

OSHA watch

Proposed changes to recordkeeping rule

According to a Notice of Proposed Rulemaking (NPRM), the proposed changes would rescind “the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries.” The change is proposed to protect sensitive worker information from potential disclosure under the Freedom of Information Act and to protect the privacy of employees injured on the job. Three organizations filed a suit against the U.S. Department of Labor, the Secretary of Labor and OSHA over the proposed changes.

Increase in worker fatalities gets attention in Missouri, Kansas, and Nebraska

Thirty-four worker deaths in Kansas, Missouri and Nebraska with the increase linked to falls, struck by objects and vehicles, machine hazards, grain bin engulfment, and burns have led to an educational campaign about the resources available. These include free compliance assistance for small- and medium-sized businesses, as well as each state’s free On-Site Consultation Program for employers. Also available is the agency’s Recommended Practices for Safety and Health Programs.

Consider screening workers for heat stress when index hits 85 degree

A threshold for moderate occupational heat risks starts at a heat index of 91° F, but that “might not be sufficiently protective,” according to an analysis, which suggests that when wet globe bulb temperature is unavailable, a heat index of 85° F could be used to screen for hazardous workplace environmental heat.

Free stickers on trenching safety offered

A new sticker intended to raise awareness of trenching safety reminds workers to “slope it, shore it, shield it.” The free stickers are available in English and Spanish.

Proposed rule exempting certain railroad work, machines from parts of crane standard

A proposed rule that would grant exemptions to its Cranes and Derricks in Construction Standard for work on or along railroad tracks was published in the July 19 Federal Register and comments will be accepted until September 1st.

New publications

Updated webpage on avian influenza

The updated Avian Influenza page provides information on protecting workers in egg and poultry production, veterinary facilities, pet shops, and food servicing who may be exposed to infectious birds or poultry products.

Michigan OSHA clarifies requirements for eyewashes and safety showers

MIOSHA released a new Fact Sheet, Eyewashes and Safety Showers.

Cal/OSHA publishes information on the hotel housekeeping musculoskeletal injury program

A fact sheet and poster is now available.

Enforcement notes

California (Cal OSHA)

  • Marine cargo handler, SSA Pacific Inc, was issued $205,235 in fines for six willful and serious safety violations following the investigation of a fatal forklift accident at the Port of San Diego.
  • Commerce-based Pixior, LLC, faces 11 citations and $97,430 in penalties after a worker was struck by a forklift.

Florida

  • North Florida Shipyards Inc., a shipbuilding and repair company, faces $271,061 in proposed penalties for multiple violations after an employee suffered fatal injuries at its Commodores Point facility in Jacksonville.
  • Bakery Management Corp., doing business as Bakery Corp., was cited for exposing employees to caught-in, fall, and electrical hazards. The Miami-based commercial bakery faces proposed penalties of $67,261.
  • Inspected under the Regional Emphasis Program for Falls in Construction, Bluewater Construction Solutions Inc. was cited for exposing employees to dangerous falls at two south Florida worksites. The Melbourne-based residential framing contractor faces proposed penalties of $48,778.
  • BC Direct Corp., doing business as Robotray, a Miami-based manufacturer of bakery rack loaders, was cited for exposing employees to struck-by, electrical shock, fire, and explosion hazards and faces $42,682 in proposed penalties.

Georgia

  • Dupont Yard Inc. was cited after an employee suffered a partial hand amputation and other injuries while working on unguarded machinery in Homerville. The wooden post manufacturer faces $109,548 in proposed penalties.

Illinois

  • Cleary Pallet Sales Inc., a Genoa-based pallet manufacturer, faces proposed penalties of $216,253 after 10 employees required emergency medical treatment for carbon monoxide exposure, which was nearly 10 times the permissible exposure limit and other violations.

Michigan (Michigan OSHA)

  • Five citations and $77,600 in penalties were issued to Woods Carpentry, Inc., for exposing workers to fall hazards.

Missouri

  • Karrenbrock Excavating LLC was cited for allowing two employees to work in an unprotected trench while installing sewers. Proposed penalties are $189,221.

New York

  • Timberline Hardwood Floors LLC was cited for willful and serious violations of multiple workplace safety and health standards. The Fulton custom hardwood-flooring manufacturer faces proposed penalties totaling $182,917.

North Carolina

  • Belhaven Shipyard and Marina Inc., doing business as TowBoatUS River Forest, faces $11,640 in proposed penalties after an employee drowned when a towboat capsized while operating in a winter storm.

Wisconsin

  • Carlos Ketz, who operates as Ketz Roofing, was cited for the sixth time in the past five years for exposing employees to falls. Proposed penalties total $48,777.

For more information.

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

The forgotten question in PPE training

Even employers who have carefully researched the options, involved employees in the selection of PPE, and ensured that it is comfortable, attractive, and fits properly, still struggle to get workers to use it. Training often focuses on how to properly wear PPE, when it should be worn, the limitations, how to care for it, and how to determine if it is damaged.

Missing or generalized is the question, “Why?” A common reason PPE is not used is the employees do not think about it because they are rushed or tired or they believe it is not necessary for the task. Employees may have performed the same task for many years and have never been injured. In their mind, there is no compelling reason to use it.

Many people don’t like reading big chunks of text or listening to boring PowerPoint presentations, so you might want to rethink your training program. In this digital age, there are countless resources for case studies, visuals, and videos relating to PPE. Personal accounts from people who have suffered injuries or illness when not wearing PPE are most effective when they are relevant, concise, and compelling.

Be selective… don’t focus on fear mongering or cheesy humor that can trivialize the importance of PPE. Humor can be effective, when it fits the situation. Sending employees a periodic email or text with a visual or video is a good way to supplement regular toolbox talks on PPE and keep it top if mind.

The message should not be one of compliance but why employees shouldn’t let their guard down – how quickly accidents can happen, how wearing PPE can protect against other people’s mistakes, and how it isn’t just about them – it’s about their future, family, co-workers, friends, and even pets, etc. Make it urgent and appeal to them with compelling stories. It can also be helpful to have a bulletin board in the staff room or where workers store their PPE. Encourage people to pin pictures of family, friends, pets, or whatever motivates them to stay safe every day.

It’s important to stay focused on changing the desired behavior. If someone is not wearing PPE, they should be asked “Why?” and a dialogue begun. Ultimately, the goal is to transform PPE use into an unconscious habit.

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