The New OSHA Rules = No Secrets

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) changed the way the workplace injury game is played. Many believe the playing field was tipped in OSHA’s direction.

This will have a dramatic effect on the workers’ compensation insurance industry for insurance agents and brokers. There will be no more secrets for your clients — your competitors will have back door access to the results your clients are having — creating an immense marketing tool for any agent looking to increase a client list.

With the sweep of a pen, new regulations were implemented where OSHA will require your employer clients to submit detailed annual reports of workplace injuries and illnesses for publication online on a public website. Think of this site as a kind of cyber-clothesline, where all that company’s dirty laundry will be hung up for all to see. This is the same information that your clients were already collecting and typically revealed to OSHA only during inspections or surveys. Right from OSHA’s website, your client’s competitors will have direct access to numbers of injuries, numbers of days away, numbers of job restricted days, and more tantalizing data that any workers’ comp sales/consultant would salivate to prospect with.

OSHA said its intent behind the new regulations isn’t malicious or to cause harm to businesses. “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,” said David Michaels, assistant secretary of labor for OSHA. “Access to injury data will also help OSHA better target compliance assistance and enforcement resources, and enable ‘big data’ researchers to apply their skills to making workplaces safer.”

Up until now, OSHA had only been able access 1 percent of all workplace injury reports, mostly through audits and surprise inspections. But what they wanted, and needed, was the remaining 99 percent. So it came up with a plan where instead of OSHA trying to find the infractions, employers would now be required to report all incidents. It’s a classic example of if you aren’t catching enough fish on your next trip out on the lake, to come up with a way to have all the fish in the lake jump into the boat “voluntarily.”

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

Employer clients with more than 20 employees in specified “high-risk industries,” such as agriculture, utilities, construction, and manufacturing industries, must submit their Form 300A by July 1 in 2017 and 2018, and by March 2 every year thereafter. A detailed list of all industries affected is at http://bit.ly/2ePzE4y.

For employers with more than 250 employees, OSHA is requiring information submissions from 2016 injury and illness recordkeeping Form 300A by July 1, 2017. However, the following year, these employers are also required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and for every year thereafter, the information must be submitted by March 2.

Employers who use an alternative to the OSHA Form 301, such as a workers’ compensation first report of injury, as expressly allowed by the existing rules, these changes may now require that the employer also complete the OSHA Form 301. It is unclear how this will work, but it is assumed OSHA will provide clarification soon.

Here’s how the new rules fall into place:

Retaliation Against Employees

The rule also invokes penalties for your employers that take actions deemed as retaliation against employees who report accidents. These rules went into effect Aug. 1, 2016, but OSHA didn’t begin enforcing them until Nov. 1, 2016.

These rules will be tough for employers that have safety incentive programs or that require drug testing of each employee after an accident.

Requiring drug tests for those with job-related injuries also could be seen as pressure not to report an accident.

Understandably, many employers will be concerned with the provisions of OSHA’s new rule, claiming drug testing after an accident occurs is a critical tool to keep their organization safe. OSHA agrees, but states employers cannot use drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.

The new OSHA regulations stress the need for a balanced approach, one that requires employers to limit post-incident drug testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment abuse by using the drugs.

For example, per OSHA, it would not be a reasonable request to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or tool malfunction.

For insurance agents who stress work comp injury management, we know how valuable drug testing is when it comes to post-incidents claims. This is a big loss in terms of possessing a key risk management tool.

Your clients need not specifically suspect drug use caused an accident before implementing testing, but the reporting employee should at least suspect a reasonable possibility that drug use was in play and a contributing factor in the reported injury or illness, before an order is given for drug testing.

Steps for Employers

Employers will be looking for direction, and if you don’t provide it, your competitors will. Be prepared to help your employer clients to take the following steps:

1. Update their injury and illness reporting procedures.
2. If they do not have an injury and illness reporting procedure, it is important to create one.
3. Revise their post-injury drug testing policy to eliminate automatic post-injury drug testing and replace it with a policy that requires an individual assessment of each employee and accident.
4. Train their supervisors on how to identify impaired employees and how to document any incidents that may trigger OSHA reporting.

The key here is that OSHA’s new laws are being driven by data, sent over the Internet and open to anyone who chooses to look. Now is the time to use the computer as your primary tool in keeping your clients up-to-speed on accurately accumulating this important information, knowing very well that if incorrect information goes out it’s a bell that can’t be un-rung.

Equally important is that once you have an electronic system in place to help your clients log accurate information, you will then also have another big stick to wield in the fight to bring in more clients.

The bottom line is that the new regulations OSHA has implemented changes the landscape of how you do your job for your clients, and if you don’t do it, someone else surely will.

Topics Legislation Workers' Compensation