Friday, December 2, 2016

New OSHA rules impact privacy, drug screening and incentives

Last Thursday marked the start of a new slate of rules brought about by the Occupational Safety and Health Administration. What originally began as a push by OSHA to streamline and modernize reporting become something bigger. These new rules, which slipped under the radar of most major news outlets, will effect most employer in some way -- and they had better be prepared.

Now, nearly a half-million worksites in what are perceived to be high hazard industries will have to report any injuries electronically to OSHA. That’s not unexpected in this day and age of rampant e-filing in the public and private sectors alike. 

Instead, it’s the outcome that’s unexpected.

In 2017, OSHA will begin posting the injury reports on their website, making them available to the public. OSHA is doing this to highlight what kinds of injuries and illnesses occur and where they occur, in hopes of identifying -- shaming, if you will -- employers that need to clean up their act and strengthen their safety programs. Many employers look at this an invasion of their privacy and a witch hunt, as the report doesn’t tell the full story (such as abuse by malingerers). 

Under that umbrella of improved and hopefully impactful reporting, OSHA has also put their sights on activities which at first glance are seemingly unrelated to reporting: post-accident drug screens and safety incentive programs.

OSHA believes that post-accident drug tests will cause many employees who dabble in recreational drugs at home and not within the hours of their employment to not report their injuries to their employer for fear of losing their job or facing some other sort of discipline, causing that injury to linger or become disabling or resulting in other workers being injured from failure to address the work environment’s cause of the injury.

OSHA wants drug screens to occur not automatically (as is the case at most workplaces) but now only when the situation permits such as when drug impairment could have likely been a root cause of an injury.

So, depending on your interpretation of the rule, here are examples of when you can use drug tests: An employee cuts himself with a knife or band saw; sprains and strains that resulted with no obvious tripping hazards present; or injuries by obvious or purposeful disdain for safety policies or safety devices.

And, here are some occasions when I believe you can’t use drug tests: Bee stings; sprains and strains from tripping hazards; employees struck by falling objects; repetitive use injuries from cutting, hammering, tearing; most back and shoulder strains; and injuries caused by machinery malfunction or a lack of machine guarding.

This is a real game-changer for businesses and it will require special attention by managers and supervisors on a case-by-case basis.

Certain safety incentive programs are also under fire for the same belief that they encourage non-reporting by sick or hurt employees. Going forward, all employers should play it safe and scrap any incentive programs that reward employees for a lack of injuries or lost-time accidents (such as bonuses or large gifts for “X” days injury-free). By having such programs in place, employees will non-report in order to get the prizes or they will non-report so as not to acquire the ire of others in their work unit if all are made ineligible for a prize due to one person’s injury.

OSHA began enforcing these new rules on December 1st so you had better be prepared and update your safety programs. There’s a lot to digest there and you’re better off consulting with your lawyer, comp insurance carrier, and government safety officials rather than just taking what this columnist says as gospel. I am, after all, just another businessman trying to make sense of all of these changes. And, they are significant changes at that.     

 From the 05 December 2016 Greater Niagara Newspapers

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