Regulatory Risk

A Rule Too Far?

The most recent revision to OSHA’s reporting and recordkeeping rule may turn certain common safety practices into regulatory violations.
By: | December 14, 2016 • 7 min read

OSHA’s revised recording and reporting rule has kicked up a dust storm of objections from employers and professional organizations across multiple sectors.

Advertisement




The new rule impacts the public disclosure of injury reporting, the timeliness required to report injuries, the ability of employers to determine whether the worker was impaired by drugs or alcohol at the time of injury, and criteria used in safety incentive programs.

The rule, titled “Improve Tracking Workplace Injuries and Illnesses,” revised in May for the first time since 2001, requires that employers electronically submit the data that they are already required to record on their onsite OSHA injury and illness forms.

The change drew heat when OSHA announced its intent to make a portion of the data public on its website.

“Our new rule will ‘nudge’ employers to prevent work injuries to show investors, job seekers, customers and the public they operate safe and well-managed facilities,” Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels said in a statement.

Randy Johnson, senior vice president of labor, immigration and employee benefits, U.S. Chamber of Commerce

Randy Johnson, senior vice president of labor, immigration and employee benefits, U.S. Chamber of Commerce

Critics likened the tactic to public shaming, and expressed concerns about the data painting a skewed picture of employer safety efforts.

Public disclosure of such data “fails to show the complete narrative of a company’s safety record or its efforts to promote a safe work environment,” said Associated Builders and Contractors’ Vice President of Health, Safety, Environment and Workforce Development Greg Sizemore in March.

A statement from the U.S. Chamber of Commerce was far more damning.

“This will only create a new filing requirement that will lead to sensitive employer data being published without context or explanation,” said U.S. Chamber of Commerce Senior Vice President of Labor, Immigration and Employee Benefits Randy Johnson.

“The agency’s excessive reporting requirements will lead to employers being falsely branded as unsafe … . Additionally, OSHA’s obsession with shaming employers has not led to better results in workplace safety and this regulation will not change that trend.”

Johnson added that publicly disclosed injury and illness data would likely be misused by labor unions and would also lead to an increase in frivolous lawsuits. Not mincing words, Johnson called the revised rule “poorly conceived, unworkable and unauthorized.”

Responding to concerns that public disclosure would motivate employers to underreport illnesses and injuries, OSHA included provisions to the final rule intended to counter employer practices that might discourage or prevent employees from reporting illness or injures.

Those provisions, however, turned out to be even more controversial than public disclosure.

Anti-Retaliation Measures

Section 1904.35 of the final rule states that a company’s injury and illness reporting procedures must be “reasonable,” meaning easy to follow, and that any procedure that would deter or discourage reporting is not reasonable.

This provision takes aim squarely at employers with complicated, confusing or “unduly burdensome” procedures for reporting injuries or illnesses. It also wags a finger at rigid prompt reporting policies that penalize workers for not reporting a condition immediately, or within a very tight window such as by the end of shift or within 24 hours.

Overly rigid reporting policies, reasoned OSHA, automatically preclude the reporting of conditions that develop over time, such as musculoskeletal disorders or other problems that might have delayed onset of symptoms. In other situations, a worker might not be able to report within a proscribed period of time because he or she is incapacitated or otherwise briefly unable to report an illness or injury.

A large number of employers have a routine mandatory drug testing policy for all injured workers. Such policies could now come under OSHA scrutiny.

If a policy specifies “immediate” reporting of injuries or illnesses, “you don’t necessarily have to take that word out, but you might want to add a little wiggle room that says ‘immediately or as soon as it’s feasible or possible to do so,’ ” said Pat Miller, a member of Sherman & Howard LLC, during a November webinar hosted by Lockton.

The other two new provisions of section 1904 pertain to retaliation against employees for reporting injuries and illnesses. Of particular alarm for employers is the prohibition against routine post-injury drug testing without a legitimate “objectively reasonable basis” for doing so.

Advertisement




Part of the agency’s rationale is that common methods of testing can determine whether a person used drugs in the recent past, but cannot distinguish whether a person was actually under the influence at the time of the incident. For that reason, some workers may avoid reporting injuries for fear of testing positive due to drug use that occurred days or weeks prior to the incident.

A large number of employers have a routine mandatory drug testing policy for all injured workers. Such policies could now come under OSHA scrutiny.

“It’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident,” said ABC’s Sizemore. “Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor.”

OSHA specified that employers should only mandate post-injury drug tests if it is likely that the injury was caused by drug use. For many companies, that will put the burden on front-line supervisors to decide whether there is probable cause to test a worker for drug use after an injury.

But the rule doesn’t take into account whether those supervisors are qualified to make those determinations, said Bob Trinkleback, SVP and casualty risk control leader at JLT Specialty USA. The Department of Transportation, he said, requires that all supervisors receive drug and alcohol training that addresses reasonable suspicion, but a similar requirement doesn’t exist for general industry.

“I don’t think OSHA has thought through [reasonable suspicion] as well as they should,” said Trinkleback.

Response from employers runs the gamut.

Mark Sullivan, senior casualty risk control consultant, Aon

Mark Sullivan, senior casualty risk control consultant, Aon

“We have some [clients] that are changing policies and some that are taking a wait and see approach … . There are very mixed feelings as to how they’re going to respond to it,” said Mark Sullivan, senior casualty risk control consultant with Aon.

A few employers seem determined to defy OSHA on this point, consequences be damned. On the opposite end of the spectrum, Trinkleback said some of his clients intend to cease post-incident drug testing altogether.

But those wanting to avoid those two extremes still have options, he said.

“You have to have a process,” said Trinkleback. That might mean requiring two trained supervisors to agree that testing is warranted in a particular case. “If they both agree, then those two should get on a call with legal, risk management and safety and talk about the facts and document everything.”

At least then, whether the worker’s test comes back negative or positive, the company can counter any retaliation claim by showing that it followed established protocols. Having a process and following it consistently is the best way to stay on safe ground with OSHA while continuing to utilize post-incident drug testing.

In a memorandum dated Oct. 19, OSHA clarified that the revised rule does not apply to drug testing for reasons unrelated to injuries or illnesses, or testing conducted post-injury in compliance with a state workers’ compensation law, or other state or federal law.

Will Your Raffle Get You Cited?

Another common practice that now may run afoul of OSHA’s rule is the ubiquitous safety incentive program. Not all incentive programs are problematic. However, companies with incentive programs tied solely to OSHA recordable injuries, lost-time injuries, or any type of reportable illness or injury, could find themselves in the hot seat.

The agency has expressed concern that workers might not be reporting injuries for fear of losing a desired incentive reward, or fear of compromising a department or work group’s eligibility to receive a coveted group award. That kind of pressure can be a powerful deterrent.

“OSHA just doesn’t want the peer pressure that says, ‘Oh, you’re the one who reported the OSHA recordable and we lost the trip to Hawaii?’ ” said Trinkleback.

Programs that reward employees or departments for following safety procedures, reporting unsafe working conditions, or completing safety training would all pass muster with OSHA. However, holding a raffle for all employees who have worked six months without an injury would be considered a violation.

“Out of a misguided zeal to improve accuracy of reporting on workplace injuries … OSHA has lost sight of the importance of reducing the number and severity of injuries themselves.” — Randy Johnson, SVP of labor, immigration and employee benefits, U.S. Chamber of Commerce

“[OSHA wants programs] that incentivize people for doing the right things,” said Aon’s Sullivan. “Are they participating in training, are they identifying hazards, correcting those hazards, participating in safety committees, attending required training.”

Tying incentives to those leading indicators will keep companies off of OSHA’s radar. Employers can also look for ways to combine the two, said Trinkleback.

“If you can blend in some leading indicators that are meaningful, that will impact your trailing indicators, you’ve got the best of both worlds,” he said.

Legal Challenge

OSHA said that the anti-retaliation provisions are intended to ensure that all workers receive proper care and compensation for legitimate workplace injuries. The secondary goal is to ensure maximum accuracy in illness and injury reporting “to enable ‘big data’ researchers to apply their skills to making workplaces safer.”

But many feel that OSHA has missed the mark.

“Out of a misguided zeal to improve accuracy of reporting on workplace injuries … OSHA has lost sight of the importance of reducing the number and severity of injuries themselves,” said the Chamber’s Johnson.

Still more have accused OSHA of overstepping its authority, circumventing the standard-making process by using the lengthy preamble to the rule to lay out the parameters of the rule itself.

“Part of the problem,” said Sullivan, “is that this was passed as a rule rather than a standard, and all of the enforcement guidance sits in the preamble to the actual law. That’s very unlike OSHA’s normal approach when they publish a standard … and it’s got employers very concerned.”

Advertisement




“It’s kind of a backdoor way of getting their interpretations in without actually having to put the language in a final rule,” said Miller, during the Lockton webinar.

In July, the National Association of Manufacturers, Great American Insurance Co. and several other organizations challenged the rule in the U.S. District Court for the Northern District of Texas. Consequently, the effective date of the anti-retaliation provisions was pushed from Aug. 10 to Nov. 1, and then to Dec. 1.

While the legal dance goes on, employers are left with troubling questions about what steps to take. And of course, the 2016 election results could change everthing.

“Congress may eliminate this new rule,” said Trinkleback. “It’s happened before — it happened with the ergonomics standard.”

After labor organizations fought for two decades for an ergonomics standard, OSHA finalized an ergonomics rule in November 2000. President George W. Bush repealed it in March 2001, two months after taking office. &

122016_02_riskfocus_sidebar

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Workers' Comp

Keeping Workers on Their Feet

Slip and fall prevention programs must interweave all of the factors contributing to the risk.
By: | July 6, 2017 • 11 min read

If you peruse the last decade’s worth of literature from the CDC, NIOSH, or numerous other agencies or organizations, you’re bound to come across the “good news” that slips, trips and falls are largely preventable.

Advertisement




So it’s frustrating, then, that slip, trip and fall injuries consistently account for more than a quarter of all nonfatal occupational injuries, and at least 65 percent of those injuries happen on same-level walking surfaces. And those figures just don’t budge all that much from year to year.

According to the “2016 Liberty Mutual Workplace Safety Index,” falls on same level currently rank as the second highest cause of disabling injuries in the U.S., with direct costs of $10.17 billion, accounting for 16.4 percent of the total national injury burden.

“Not only are they still happening often, but they tend to be very significant injuries,” said Mike Lampl, director of research at the Ohio Bureau of Workers’ Compensation.

“We’ve seen these trends grow over the years,” said Wayne Maynard, product director, risk control, with Liberty Mutual. “Bottom line is, it’s a real, real big problem.”

So why are preventable falls so hard to prevent? This stubborn status quo, say experts, is that the causes of slips and trips are typically far more complex than they seem. There are nearly always multiple factors in play, from footwear and flooring and the interplay of both, to cleaning procedures, lighting, housekeeping, weather, and workers’ mental or physical conditions as well as overall awareness.

And all of these factors are being exacerbated by the fact that incidents often go unreported.

“Slips, falls — people get up, move on, they don’t report it,” said Maynard.

“When somebody’s injured and files a claim — in the workers’ arena, how many are behind the scenes that may have happened that are not reportable? …. The unreported number is considerable in my opinion.”

The key to making any headway in reducing slips and falls on the same surface, say experts, is to have a comprehensive fall prevention plan that addresses all possible factors. No small task.

Engineering Solutions

Flooring conditions are often the most obvious starting point. Ideally, said Maynard, all the right choices are made at the planning and design stage. But sometimes mistakes are made, and in other cases, a business may be inheriting an older space with floor chosen for a different purpose.

Patricia Showerman, senior loss control consultant, Arthur J. Gallagher & Co.

So even flooring in good condition may be the wrong type of material and may not have the necessary coefficient of friction (slip resistance) needed for the work being done.

If companies want to drill down into all the details of the surfaces in their facilities, a friction coefficient study is always an option, said Patricia Showerman, senior loss control consultant at Arthur J. Gallagher & Co.

But if a company doesn’t want to take that step, she said, it may be a simpler matter of saying, “Let’s look at what you’ve got. Let’s look at your floor surfaces and how you’re maintaining them.”

A lot of people want that “shiny grocery store glam look,” she said. “And if you can do it properly, and maintain it properly and keep that coefficient of friction and have the shiny look, that’s great. That’s what everybody wants but how do they get there?”

Certain surfaces may start out with an adequate coefficient of friction when they’re clean and dry. But add even an invisible layer of dust or debris, “and it’s like microscopic little BBs that you slide across,” said Showerman. “So if you have dust on your floor, you are dramatically reducing your slip coefficient.”

For companies that do have flooring surfaces in need of improvement, ripping up the floor and replacing it isn’t typically a feasible option. Fortunately there are more budget-friendly ways to get the maximum slip resistance from existing flooring, such as coatings and etchings.

A coating adds a microscopic layer on top of the flooring that creates a grip surface while maintaining the shine. Showerman likened the effect to the way that Velcro fasteners work.

“You want that hook effect … sharp points are going to microscopically stick into the soles of your shoes, rather than rolling off the top.”

Etching can work in a similar way, chemically altering the existing surface to make it imperceptibly gritty. Etching can also be used to create pores in an existing surface, which is useful for areas such as machine shops, she said.

Be Smart With Surfactants

While keeping floor surfaces clean is one of the best ways to remove slip and fall hazards, cleaning them the wrong way can actually do more harm than good.

Failure to follow appropriate cleaning procedures can severely diminish a surface’s coefficient of friction.

Experts suggest that companies engage with their chemical suppliers, and discuss their flooring as well as the types of dirt or grease removal and disinfectant needs. Detergents – which can contain different types of surfactants — aren’t a one size fits all solution.

Advertisement




Sometimes purchasers might be inclined to try to cover all their bases by buying the strongest product on the market, but that might mean adding unnecessary surfactants that make surfaces less slip resistant.

“Clearly identify the types of surfaces you’re using it for, the type of oil or dirt or debris you have, and whether or not you need a sanitizing step,” said Showerman.

“You’ve got to find the right balance.”

But that’s only half the battle. A significant problem experts see time and time again is that companies don’t understand how their flooring is being maintained on a day-to-day basis by front-line employees. Failure to follow appropriate cleaning procedures can severely diminish a surface’s coefficient of friction.

“This is where you’re seeing someone with a mop and bucket and they are just re-smearing that grease from one place to another. They put the dirty mop in the dirty bucket, the mop gets full of that emulsified grease and you’re smearing it across the room. In high grease areas, you have to replace with clean water consistently.”

In other cases, a worker without the proper training may grab the first detergent he finds, even if it’s meant for the equipment rather than the floor. Or perhaps he mixes equal parts detergent and water when he was supposed to only use 8 oz. of detergent for every five gallons of water.
Sometimes people will even over-concentrate the detergent on purpose, she added.

Peter Koch, safety management specialist, The MEMIC Group

“I see that in the food industry frequently,” said Showerman. “They find that the more detergent they leave on the floor, the easier it is to clean up next time … but then everyone’s slipping and falling like in a cartoon.”

A company could invest a significant amount in flooring improvements, only to have the benefits undone by improper detergent use or failure to follow recommended rinsing procedures.

It’s incumbent upon safety managers to reinforce that maintaining floor surfaces isn’t just a matter of housekeeping, but a key part of the company’s workplace safety program.

The Human Factor

When you’ve done everything possible to address hazards in the physical work environment, workers themselves remain the wildcard. Most employers routinely include slip and fall hazards in their safety awareness training or toolbox talk programs. But that training should go well beyond a general “watch where you walk” message, say experts.

“One of the most overlooked parts for employee safety is actually employee training,” said Peter Koch, safety management specialist at  The MEMIC Group.

“How do you train an employee to not slip and fall? I think many times that is wrapped in a “you have to be more careful” message, which is valid but nebulous and not very helpful — it means something different to everyone based on your risk tolerance as an individual.”

Koch’s employee training regimen revolves around four elements: surfaces, awareness, footwear and environment (SAFE).

Advertisement




The first goal of the surface portion is just to get employees to start thinking about the different types of surfaces they walk on and how it can change throughout the work day. Koch said he likes to ask: “How many different types of surfaces did you have to walk on the get to this training room?”

The footwear piece of it is the most straightforward. Are your shoes designed for the work that you’re doing and the surfaces you’re walking on? Are they in good condition? Are the soles worn out?

There is no ASTM standard for measuring the performance of slip-resistant footwear, added Gallagher’s Showerman. So workers should be reminded that wearing the right shoe isn’t a guarantee — it’s just one piece of the solution.

Awareness, said Koch, may be the most challenging piece of the puzzle — helping people to think about their gait, what they’re carrying, what they’re doing, and simply where their heads are at any given moment.

“If you’re thinking about 15 things you have to get done by the end of the day, or you have a particularly challenging employee interaction coming up that day, or you had a fight with your girlfriend last night— or whatever it is — you’re not focused. Then you take that step through the icy patch, and now it relies completely on your athletic ability and luck to stay upright.”

Workers may not necessarily make the connection between personal factors and fall risk. Someone who has an ear infection or is taking certain medications, for example, may not even be aware that their balance might be compromised, putting them at higher risk for a fall.

Employees also should be reminded of how even normal daily stressors can contribute to risk. Everyone is under pressure to deliver more in less time. Everyone is rushing, everyone is stretched to their limits. Add the ever-present cellphone beeping and buzzing and demanding our attention and perhaps it’s a wonder slips and falls don’t happen even more often than they already do.

We’re so conditioned to react when the vibration goes off or the tone chimes in our pockets that we just grab it without thinking, Koch said.

“If you knowingly put yourself at risk by knowingly going quickly through an area with slip and fall exposures, it’s just Russian roulette – at some point you’re going to get broken.” — Peter Koch, safety management specialist, The MEMIC Group.

“Even that, in certain conditions, is going to be enough to put you on the ground.”

Awareness of environmental factors should also be part of the training, Koch said, especially in terms of what workers can’t control, like inclement weather.  He said the main thing he tries to impress upon people is to slow down in a high-risk environment.

“If you knowingly put yourself at risk by knowingly going quickly through an area with slip and fall exposures, it’s just Russian roulette – at some point you’re going to get broken.”

Koch says that getting people to put all of these facets of awareness together is where the training can really click.

The goal is that when they approach an area with a higher-risk surface, employees are thinking “for those few seconds or minutes that I’m going to be walking through it, I need to have a greater sense of awareness, I need to put away the mental [distractions] and focus on what I’m doing – don’t answer your phone, don’t answer your texts.”

Some employers are looking to address the human piece of the slip and fall puzzle by using training that goes far beyond hazard awareness. Active slip-prevention training focuses on body mechanics and teaches workers how to respond when they feel themselves begin to slip.

One such program revolves around the Slip Simulator, technology born of a research partnership between Virginia Tech researchers and UPS. The simulator that creates slippery and hazardous conditions in a controlled environment while participants walk in a harness so they can slip safely. An instructor offers real-time guidance on how to alter their movements to avoid falling.

Advertisement




After mastering the initial technique, trainees face additional challenges related to their specific work environments, such as walking up ramps or turning wheels. A New Mexico security team practiced drawing firearms while standing on the simulator, which led to a change in how they wear their weapons. Workers at an Ohio refinery practiced stepping over pipes and turning large valves.

Clients of the program are reporting 60 to 80 percent reductions in accident rates.

The Road Ahead

A comprehensive slip and fall prevention plan is a must for employers, experts agreed, with clear, consistent procedures that empower employees to be a part of the solution.

“Employees play a very critical role,” said Liberty Mutual’s Maynard. “If they see a slip risk or a slipperiness issue, they need to be able to report it and they need to be able to get that corrected immediately. They have an important role in maintaining a safe facility and reducing risk themselves — be proactive, don’t walk by, clean it up.

“Any time you can involve the employee in solutions …. the likelihood of success of that intervention is higher.”

Maynard added that the best prevention plans will also be forward-looking.

“Understand where current safety performance is. Then make a roadmap to get better,” he said. “Emphasize where you’re doing well,” then identify opportunities to effect improvement, now and over the next three, four or five years.

“Prevention is too often reactive,” Maynard said. “We’ve got an issue and now what do we do? The goal is for companies to be proactive.” &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]