OSHA Compliance

Ratcheting up Reporting Rules

OSHA’s new incident-reporting rules are more onerous and may lead to increased litigation.
By: | October 15, 2014 • 3 min read

Everyone agrees on the merits of reducing accidental workplace fatalities and serious injuries.

Yet, according to some employment lawyers, including the former head of the U.S Department of Labor’s Occupational Safety and Health Administration, impending OSHA reporting rule changes that go into effect on Jan. 1 are going to make things look worse.

Advertisement




Under the revised rule, employers will be required to notify OSHA of work-related fatalities within eight hours, and work-related in-patient hospitalizations, amputations or loss of an eye within 24 hours.

Previously, OSHA’s regulations required report of work-related fatalities and in-patient hospitalizations of three or more employees.

“That could lead to huge numbers in terms of reporting.” — Ed Foulke,partner, Fisher& Phillips

“Under the former rules, very rarely would more than three people go to hospital in a single incident, so the new rules can exponentially increase reporting,” said Ed Foulke, former head of OSHA under George W. Bush and a partner with Fisher& Phillips in Atlanta.

Also, all employers covered by the Occupational Safety and Health Act, even those who are exempt from maintaining injury and illness records (10 or fewer employees), are required to comply with OSHA’s new reporting requirements.

Foulke said the injury reporting requirements are “significant” changes.

To complicate matters, he said, OSHA has expanded the definition of amputations, so that even the loss of the tip of the finger, for example, without bone loss, now is considered an amputation, which is a reportable injury.

“That could lead to huge numbers in terms of reporting,” he said.

Foulke also said that the updated regulations add 25 new industries — such as “bakeries and tortilla manufacturers,” auto dealers, building supplies, beer, wine and liquor stores, performing arts companies and lessors of real estate — to those required to keep OSHA 300 injury and illness records.

Those records will be posted on the OSHA website, he said.

“OSHA never talked about it during this rule-making process for three years,” he said. “Plaintiff’s attorneys, unions, anti-industry groups and other organizations can easily obtain that information, and that could lead to increased litigation.”

According to the Bureau of Labor Statistics, 4,405 workers died on the job in 2013.

In announcing the new rules on Sept. 11, U.S. Secretary of Labor Thomas Perez said workplace injuries and fatalities are “absolutely preventable, and these new requirements will help OSHA focus its resources and hold employers accountable for preventing them.”

OSHA said it will not do an inspection based on every report, but rather will “interact” with the employers who file reports.

The “most obvious effect” of the new rules, said Bill Principe, a partner in Constangy’s Atlanta office, “is that when you report one of these types of cases, you can almost expect an OSHA inspection. And that gives you a chance to prepare properly. But no one knows at this point how long you are going to have to prepare.”

“A relatively minor accident could trigger additional citations.” — Nickole Winnett, senior associate, Jackson Lewis

On the flip side, Principe said, the new regulations could overwhelm OSHA, with the sheer volume of new data coming in.

“I would believe that these types of report cases almost would take the place of general inspection schedules,” Principe said. “OSHA hasn’t said that the call-ins definitely will trigger an inspection, but that could turn out to be the case.”

Nickole Winnett, a senior associate in the Washington, D.C. office of Jackson Lewis, said the new OSHA rules “will require additional resources and time spent on providing the information, responding to follow up questions and, in some cases, being investigated for these types of accidents.”

She noted that once OSHA decides to do a worksite inspection, it can look for other safety issues as well.

“A relatively minor accident could trigger additional citations,” Winnett said.

Advertisement




The best strategy for employers, Foulke said, is to know what OSHA standards apply to them and make sure the company is in full compliance.

“They need to know what is required within every applicable standard,” he said, estimating, for example, that 50 percent of employers in the U.S. today have not done a basic workplace hazard assessment. “It’s important for several reasons, including maintaining a safer workplace.”

Tom Starner is a freelance business writer and editor. He can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

Advertisement




That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

Advertisement




Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

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